California OAH special education order · November 22, 2016

Order Granting Motion for Stay Put

OAH Case No. 2016110308 · ALJ Marc Levine

OAH granted Student's stay put motion to remain at Excelsior Academy because the school gave only 16 days' notice of terminating its service agreement instead of the required 20 days.

Granted Stay put

Summary

Student asked OAH to keep her at Excelsior Academy while the dispute is pending, based on her last agreed-upon and implemented IEP of October 23, 2015. District agreed the IEP placed Student at Excelsior but argued that Excelsior had unilaterally ended the placement with a letter dated October 25, 2016, setting November 10, 2016 as the last day. OAH found the letter gave only 16 days' notice, short of the 20 days required by Education Code section 56366, so the termination was not effective and stay put was granted. The ruling is without prejudice if Excelsior later gives proper notice.

Why it matters

A nonpublic school cannot end a student's placement without giving the full 20 days' notice the law requires. Parents can use stay put to hold the placement when the notice falls short, but the protection may end once proper notice is given.

Key authority cited

  • 20 U.S.C. § 1415(j)
  • 34 C.F.R. § 300.518(a)
  • Ed. Code, § 56505, subd. (d)
  • Ed. Code, § 56366, subd. (a)(4)
  • Cal. Code Regs. tit. 5, § 3042
  • Joshua A. v. Rocklin Unified Sch. Dist. (9th Cir. 2009) 559 F.3d 1036

Topics

stay put nonpublic school termination notice individual service agreement placement

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. 2016110308 v. ORDER GRANTING MOTION FOR

STAY PUT

GROSSMONT UNION HIGH SCHOOL

DISTRICT AND EXCELSIOR

ACADEMY.

On November 7, 2016, Student filed a motion for stay put with the Office of Administrative Hearings against Grossmont Union High School District (District) requesting that Student continue to be placed at Excelsior Academy (Excelsior) during the pendency of this dispute. On November 14, 2016, District filed an opposition brief.

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).)

The “current educational placement” for the purpose of stay put may also include services administered by the same non-public agency (NPA) if the most recently implemented IEP required the District to provide the services with a specific NPA. (Joshua A. v. Rocklin Unified Sch. Dist. (E.D. Cal. August 20, 2007, No. CV 07-01057LEW(KJMx))

2007 WL 2389868, ** 2-4, affd. Joshua A. v. Rocklin Unified Sch. Dist. (9th Cir. 2009) 559 F.3d 1036 (Joshua A.).)

DISCUSSION

Student’s motion for stay put includes her last agreed upon and implemented IEP of October 23, 2015. District concedes the IEP mandates that student remain at Excelsior.

However, District asserts that Excelsior unilaterally terminated Student’s placement.

In a letter dated October 25, 2016, Excelsior advised District and Student that it intended to terminate the individual service agreement for Student and that the last day of enrollment would be November 10, 2016. As provided in Education Code, section 56366, subdivision (a)(4), Excelsior is required to provide 20 days’ notice before terminating the agreement. Although the letter indicates that it serves as a formal 20-day notice of intent to terminate the agreement, it only provides Student with 16 days’ notice. Therefore, Excelsior has not met the 20-day notice requirement for termination of the agreement. The motion for stay put is granted. This ruling is without prejudice should Excelsior provide proper notice.

ORDER

The motion for stay put is granted.

IT IS SO ORDERED.

DATE: November 22, 2016

MARC LEVINE

Administrative Law Judge Office of Administrative Hearings