California OAH special education order · December 8, 2015

Order Denying Student's Motion for Stay Put

OAH Case No. 2015111073 · ALJ Adrienne L. Krikorian

OAH denied without prejudice Student's stay put request for transportation to an out-of-district after-school program because Student did not attach the complete last agreed-upon and implemented IEP.

Denied without prejudice Stay put

Summary

Student asked OAH to order District, as stay put, to provide transportation to an after-school program outside District boundaries so Parents could keep working. District opposed, arguing Student was seeking the relief requested in the complaint without evidence that this transportation was the status quo. OAH denied the motion without prejudice. Student attached only an August 2015 amendment to the 2014 IEP, and that amendment showed the parties disagreed about out-of-district transportation, so it did not prove the transportation was part of the last agreed-upon and implemented IEP. Any new motion must include a complete, properly authenticated copy of that IEP.

Why it matters

A stay put motion must prove what the last agreed-upon and implemented IEP actually provides, so families should attach the complete, authenticated IEP and not just an amendment. Stay put protects the status quo and cannot be used to win the very services that are in dispute.

Key authority cited

20 U.S.C. § 1415(j)
34 C.F.R. § 300.518(a)
Ed. Code, § 56505, subd. (d)
Cal. Code Regs., tit. 5, § 3042, subd. (a)
Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618

Topics

stay put transportation after-school program last implemented iep evidence requirements

Full text of the order

Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2015111073 v. ORDER DENYING STUDENT’S

MOTION FOR STAY PUT

OCEANSIDE UNIFIED SCHOOL

DISTRICT.

On November 30, 2015, Student filed a motion for stay put, supported by a declaration under penalty of perjury from Parent. On December 3, District filed an opposition. For the reasons discussed below, the motion is denied.

APPLICABLE LAW

Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).) This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the placement called for in the student’s individualized education program, which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)

In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs,” as specified in the IEP. (Cal. Code Regs. tit. 5, § 3042, subd. (a).)

DISCUSSION

Student’s motion for stay put seeks an order compelling District to provide transportation to an after-school program located outside of District boundaries so Parents can continue to work.

The motion includes a copy of an August 2015 amendment to Student’s 2014 IEP.

However, the motion does not attach a complete copy of Student’s last agreed upon and implemented IEP, which establishes the basis of stay put. The amendment notes a dispute between Parent and District over transportation outside of District boundaries. It is not persuasive evidence establishing that the transportation Parent is seeking as stay put was part of the last agreed upon and implemented IEP. District opposes the motion on the ground that Student is improperly seeking the relief sought in its complaint as stay put without supporting evidence that it is properly the status quo.

Student’s motion is denied without prejudice. If Student desires to file a new motion for stay put, it must be supported by a complete and properly authenticated copy of Student’s last agreed upon and implemented IEP.