California OAH special education order · October 24, 2016

Order Denying Motion for Stay Put

OAH Case No. 2016090938 · ALJ Chris Butchko

OAH denied District's stay put motion seeking to place a graduated 18-year-old Student in an adult transition program because District never submitted the last agreed-upon and implemented IEP.

Denied Stay put

Summary

District filed a due process complaint to validate its May 16, 2016 IEP and moved for stay put. It argued that because Student, age 18, had graduated with a certificate of completion, her placement should be an adult transition life skills program on a different campus. Student opposed, seeking to stay in her special day class and arguing District misled her into believing she had to accept the certificate and graduate. OAH denied the motion without prejudice because District supplied only the May 2016 IEP, which Parent never agreed to and which is irrelevant to stay put, and offered no proof that the 2015 IEP contemplated graduation.

Why it matters

A stay put request must be backed by the last agreed-upon and implemented IEP. A new IEP the parent has not consented to cannot set the stay put placement, even when the district says the student has already graduated with a certificate of completion.

Key authority cited

  • 20 U.S.C. § 1415(j)
  • Ed. Code, § 56505, subd. (d)
  • Thomas v. Cincinnati Board of Education (6th Cir. 1990) 918 F.2d 618
  • Ms. S. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
  • Cronin v. Bd. of Educ. of East Ramapo (S.D.N.Y. 1988) 689 F.Supp. 197
  • B.A.W. v. East Orange Bd. of Educ. (D.N.J. 2010) 2010 WL 3522096

Topics

stay put certificate of completion graduation transition program last agreed-upon iep insufficient documentation

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:

PALOS VERDES PENINSULA UNIFIED OAH Case No. 2016090938

SCHOOL DISTRICT,

ORDER DENYING MOTION FOR

v. STAY PUT

PARENT ON BEHALF OF STUDENT.

On September 21, 2016, District filed a request for due process hearing (complaint)

seeking an order that its May 16, 2016 individualized educational program constituted an offer of a free and appropriate public education in the least restrictive environment. On that same date, District filed a motion for stay put. On October 4, 2016, Student filed an opposition.

APPLICABLE LAW

A special education student is entitled to remain in his or her current educational placement pending the completion of due process hearing procedures unless the parties agree otherwise. (20 U.S.C. § 1415(j); Ed. Code, §§ 56505, subd. (d), 48915.5.) Stay put operates automatically upon due process filing. (See Casey K. v. St. Anne Community High School District No. 302 (7th Cir. 1998) 400 F.3d 508, 511.) For purposes of stay put, the current educational placement is typically the placement called for in the student's individualized education program (IEP) which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Board of Education (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.].)

Stay put may apply when a child with a disability files for a due process hearing on the issue of whether regular graduation from high school (which ends IDEA eligibility) is appropriate. (Cronin v. Bd. of Educ. of East Ramapo Cent. Sch. Dist. (S.D.N.Y. 1988) 689 F.Supp. 197, 202 fn. 4; see also R.Y. v. Hawaii (D. Hawaii February 17, 2010, Civ. No. 09- 00242) 2010 WL 558552, pp. 6-7.) Stay put applies because if it did not, schools would be able to end special education eligibility for students by unilaterally graduating them from high school. (Ibid.) However, a student is not entitled to stay put where he had already graduated with a certificate of completion when the complaint was filed. (See B.A.W. v. East Orange Bd. of Educ. (D.N.J. August 31, 2010, Civ. No. 10-4039) 2010 WL 3522096, p. 4.)

DISCUSSION AND ORDER

Student is 18 years old and has graduated from Palos Verdes Peninsula High School with a certificate of completion. Student’s last agreed-upon and implemented IEP was from 2015 and covered the 2015-2016 school year. District argues that since Student has graduated, her proper placement is an adult transition life skills program on a different high school campus. Student contends that she should be placed at the special day class she had been attending and that District misled her to believe that she had no choice whether to accept the certificate of completion and graduate from high school.

Stay put is automatic and an order is required only if there is a dispute as to stay put placement. District’s request for stay put does not set out what agreed-upon IEP provides the basis for the stay put placement. Its argument appears to be that the operative 2015 IEP contemplated Student’s graduation from high school with a certificate of completion. That argument is not supported by proof. The only IEP document included with District’s motion is the May 16, 2016 IEP which it seeks to implement. Parent did not agree to that plan, so it is irrelevant for purposes of stay put. (See Student v. Fresno Unified School District (2012)

Cal.Offc.Admin.Hrngs. Case No. 2012020778, p. 21.)

District may re-file its motion for stay put and include proper documentation about current placement and what should be the conditions of stay put. At a minimum, the last agreed-upon and implemented IEP should be provided. Any motion for stay put, if filed, should include proof that the motion was served on all the parties.

Based upon insufficient documentation for the stay put request at the current time, the motion for stay put is denied.

IT IS SO ORDERED.

Dated: October 24, 2016 ______________________________________

CHRIS BUTCHKO

Administrative Law Judge Office of Administrative Hearings