California OAH special education order · May 16, 2016
Order Denying Motion for Stay Put
OAH Case No. 2016050475 · ALJ Robert Helfand
OAH denied Student's stay put request without prejudice because Student did not allege any dispute over placement or services while the case is pending, or that Fremont was not implementing the last agreed IEP.
Summary
Student's due process complaint included a general "invocation" of stay put to continue Student's special education programs, placement, and services. OAH treated it as a stay put motion, and Fremont objected. OAH denied the motion without prejudice because Student did not allege a dispute about placement or services during the case, and did not claim that Fremont was failing to implement the last agreed IEP from February 19, 2014. Student may refile with more detail on the dispute and the stay put terms, attaching the last agreed and implemented educational program.
Why it matters
A general request for stay put in a complaint is not enough. Parents should explain what dispute exists about the current placement, spell out the stay put terms they want, and attach the last agreed and implemented IEP.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
Topics
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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2016050475 v. ORDER DENYING MOTION FOR
STAY PUT
FREMONT UNIFIED SCHOOL
DISTRICT.
On May 2, 2016, Parent on behalf of Student filed a Request for Due Process Hearing (complaint) with the Office of Administrative Hearings naming Fremont Unified School District. Contained within the complaint, Student alleged an invocation of stay put “to continue [Student’s] special education programs, placement, and services.” The “invocation” is deemed a motion for stay put. Student contends in the factual portion of the complaint that the last agreed to and signed Individualized Education Program was February 19, 2014. Student does not allege that Freemont is not implementing the last agreed to IEP.
On May 5, 2016, Freemont filed an objection to Student’s invocation of stay put, which is deemed an opposition to Student’s motion for stay put.
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.)
DISCUSSION
Here, Student has not alleged whether a dispute exists as to Student’s placement and services while the dispute is pending. If there is a dispute that exists as to that placement, Student may file a request for stay put with more specificity as to the nature of the dispute and the terms of stay put, along with a copy of Student’s last agreed upon and implemented educational program. Therefore, the motion for stay put is DENIED without prejudice
IT IS SO ORDERED.
DATE: May 16, 2016
ROBERT HELFAND
Administrative Law Judge Office of Administrative Hearings