California OAH special education order · August 25, 2016

Order Denying Motion for Stay Put

OAH Case No. 2016080904 · ALJ Marc Levine

OAH denied Student's stay put motion because Student's initial IEP was never agreed to or implemented, and the parties disputed which high school was the normal grade progression.

Denied Stay put

Summary

Student asked OAH to treat the initial IEP's proposed middle school placement at Marshall Academy as his stay put placement, interpreted to move him up to Millikan High School during the dispute. District opposed. District argued that no IEP had been implemented, and that the normal progression from Student's middle school would be Cabrillo High School, not Millikan. OAH denied the motion because no IEP was implemented before the dispute arose, so there was no special education placement to stay put in, and the facts about which high school was the normal progression were disputed.

Why it matters

Stay put protects only a placement that was actually implemented under an IEP. A proposed initial IEP that Parent never agreed to cannot serve as the stay put placement, even when the student is moving up to the next grade.

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
  • Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
  • Van Scoy v. San Luis Coastal Unified School Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083

Topics

stay put initial iep grade progression high school transition child find

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. 2016080904 v. ORDER DENYING MOTION FOR

STAY PUT

LONG BEACH UNIFIED SCHOOL

DISTRICT.

On August 18, 2016, Student filed a motion for stay put. On August 23, 2016, District filed an opposition to the motion.

On June 7, 2016, the initial individualized education program meeting was convened for Student. The IEP was not been agreed to by Parent(s) and it was not been implemented.

There was no IEP implemented prior to the dispute arising.

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)1; 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.)

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, 20 U.S.C. § 1414(d)(1)(B).) Progression to the next grade maintains the status quo for purposes of stay put. (Van Scoy ex rel. Van Scoy v. San Luis Coastal Unified School Dist.

(C.D. Cal. 2005) 353 F.Supp.2d 1083, 1086 [“stay put” placement was advancement to next grade]; see also Beth B. v. Van Clay (N.D. Ill. 2000) 126 F.Supp.2d 532, 534; Fed.Reg., Vol.

64, No. 48, p. 12616, Comment on § 300.514 [discussing grade advancement for a child with a disability.].)

All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.

DISCUSSION

Student’s complaint alleges that District failed in its child find obligations by neglecting to timely assess him prior to June 2016. He further alleges that he was denied a free appropriate public education when his initial IEP in June 2016 failed to offer him a high school placement for the 2016-17 school year at Millikan High School, instead offering him his middle school of residence, Marshall Academy, despite his anticipated progression into high school in the fall of 2016. Although the complaint alleges that no high school placement was offered, Student’s motion for stay put states that District is proposing to transition him to Cabrillo High School. Student’s motion for stay put seeks an order that his stay put placement during the pendency of this dispute should be based upon the initial IEP’s proposed middle school placement at Marshall but should be interpreted to transition him to Millikan, where Student should remain during the pendency of this dispute. District argues both (1) that there was no implemented IEP to which stay put attaches, and (2) that although Millikan is Student’s high school of residence, the normal progression from Stanford Middle School (where Student attended middle school) would transition Student into Cabrillo High School. District also states that Father has enrolled Student at a different high school called Lakewood.

Here, the facts are in dispute as to which high school would constitute the normal progression to the next grade, for maintenance of the status quo for purposes of stay put.

Moreover, since no IEP was implemented prior to the dispute arising, there was no special education placement for Student for purposes of stay put. The motion for stay put is therefore denied.

ORDER

The motion for stay put is denied.

IT IS SO ORDERED.

DATE: August 25, 2016

MARC LEVINE

Administrative Law Judge Office of Administrative Hearings