California OAH special education order · November 29, 2016

Order Denying Motion for Stay Put

OAH Case No. 2016110368 · ALJ Clifford H. Woosley

OAH denied Student's stay put motion because Student was not in special education and had no IEP or special education placement to keep in place during the dispute.

Denied Stay put

Summary

Student filed a due process complaint against Chaffey Joint Union High School District and the next day moved for stay put. District opposed. OAH denied the motion because both the complaint and the motion showed that Student was not a special education student, had no IEP, and had no special education placement. Stay put protects only the placement in a student's last agreed-upon and implemented IEP.

Why it matters

Stay put protects an existing special education placement under an implemented IEP. A student who has not yet been found eligible and has no IEP cannot use stay put to get or keep services while a dispute is pending.

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
  • Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618

Topics

stay put no iep eligibility current educational placement general education student

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. 2016110368 v. ORDER DENYING MOTION FOR

STAY PUT

CHAFFEY JOINT UNION HIGH SCHOOL

DISTRICT.

On November 8, 2016, Student filed a request for due process hearing (complaint), naming Chaffey Joint Union High School District. On November 9, 2016, Student filed a motion to stay put. District file an opposition on November 29, 2016..

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 (IEP), 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.)

DISCUSSION

Here, both the complaint and moving papers reflect that Student is not a special education student, does not have an individualized education program, and was not in a special education placement. “Stay put” is intended to maintain the special education placement of an individual with exceptional needs, as reflected in the student’s last, agreed upon, and implemented IEP. Since Student does not have an IEP or special education placement, Student is not entitled to a stay put order.

ORDER

Student’s stay put motion is denied.

IT IS SO ORDERED.

DATE: November 29, 2016

CLIFFORD H. WOOSLEY

Administrative Law Judge Office of Administrative Hearings