California OAH special education order · December 29, 2015

Order Denying Motion for Stay Put

OAH Case No. 2015120915 · ALJ Robert Helfand

OAH denied Student's stay put request for after-school transportation to a care program that moved outside district boundaries, because the operative November 2015 IEP, which Parent consented to, did not include that transportation.

Denied Stay put

Summary

Student asked OAH to order Oceanside to keep providing after-school transportation to Together We Grow, a Regional Center and Medicare-funded care program that had moved from Oceanside to Vista. Student argued the November 2014 IEP and a May 2014 transportation application, which listed the Oceanside drop-off site, set the stay put placement. Oceanside opposed. OAH found that the November 2015 IEP, which Parent consented to, was the last agreed-upon and implemented IEP. At a September 2015 IEP meeting, Oceanside had refused transportation to the Vista site and offered drop-off only within district boundaries, so Parents knew that transportation outside the district was not part of the November 2015 IEP.

Why it matters

Stay put is based on the most recent IEP a parent consented to. Consenting to a new IEP after the district has clearly refused a service can remove that service from stay put protection. Parents should consider giving only partial consent or putting their disagreement in writing before signing.

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
Ms. S. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115

People named in the order

Diane Marie Casato, Special Education Coordinator, Oceanside Unified School District (declarant)

Topics

stay put transportation last agreed-upon iep parental consent after-school program

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. 2015120915 v. ORDER DENYING MOTION FOR

STAY PUT

OCEANSIDE UNIFIED SCHOOL

DISTRICT.

On December 5, 2015, Parents on behalf of Student filed with the Office of Administrative Hearings a Request for Due Process Hearing naming Oceanside Unified School District. On December 18, 2015, Student filed with OAH a motion for stay put, supported by a declaration under penalty of perjury from Parent. On December 22, 2015, Oceanside filed an opposition supported by a declaration under perjury by Diane Marie Casato, Special Education Coordinator. 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 that was 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).)

Courts have recognized, however, that because of changing circumstances, the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35, superseded by statute on other grounds (Vashon Island), 20 U.S.C. § 1414(d)(1)(B).) For example, it does not violate stay put if a school is closed for budget reasons and the child is provided a comparable program in another location. (See McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527, 1533; Knight v.

District of Columbia (D.C. Cir. 1989) 877 F.2d 1025, 1028; Weil v. Board of Elementary & Secondary Education (5th Cir. 1991) 931 F.2d 1069, 1072-1073; see also Concerned Parents & Citizens for Continuing Education at Malcolm X (PS 79) v. New York City Board of Education (2d Cir. 1980) 629 F.2d 751, 754, cert. den. (1981) 449 U.S. 1078 [101 S.Ct. 858, 66 L.Ed.2d 801]; Tilton v. Jefferson County Bd. of Education (6th Cir. 1983) 705 F.2d 800, 805, cert. den. (1984) 465 U.S. 1006 [104 S.Ct. 998, 79 L.Ed.2d 231].

DISCUSSION

Student has and still attends Foussat Elementary School. Student also has and continues to attend an after school care program at “Together We Grow,” a pediatric care facility which operates an after-school program. Student’s attendance at TWG is funded by Medicare and the local Regional Center. It is not an IEP listed service. Foussat is within two miles of TWG’s former location in Oceanside. Oceanside, pursuant to parental request, had transported Student to the Oceanside TWG location until September 14, 2015. TWG moved to a neighboring city, Vista, approximately five and one-half miles from its former Oceanside location.

Student’s stay put motion seeks an order compelling District to provide after school transportation to the present location of TWG. Student offers a copy of a November 21, 2014 IEP as the last consented to and implemented IEP. Student also offers a copy of a May 21, 2014 Transportation Application which lists TWG on Mission Avenue in Oceanside as the drop-off location. Student argues that the Transportation Agreement was part of the November 2014 IEP, which is the last agreed upon and implemented IEP. The November 2014 IEP lists under services “special education transportation” without further specification.

Oceanside contends that the last consented and implemented IEP is November 19,

2015. Oceanside offers a copy of the November 2015 IEP which also lists “special education

services,” without further specification. Student’s parent consented to this IEP. Thus, the November 2015 IEP is the operative IEP for stay-put.

Oceanside also submitted notes from an IEP meeting held on September 14, 2015 to discuss transportation issues. Parents requested that Oceanside transport Student to TWG, which is located.in Vista, after school. Oceanside rejected the request and offered to transport Student to any location within district boundaries as a courtesy to parents. Parents rejected the offer. Oceanside ceased transporting Student to TWG following the IEP meeting.

In reviewing the September 14, 2015 IEP meeting notes, it is clear that Oceanside refused to continue to provide transportation to TWG in Vista. In fact, Oceanside provided information of other transportation services which Parents could utilize to transport Student.

Thus at the time of the November 2015 IEP meeting, Parents clearly knew that the transportation services being offered by Oceanside would not include transporting Student outside of district boundaries to TWG. Therefore, transportation to TWG is not a service being provided in the November 15, 2015 IEP; the last consented and implemented IEP.