California OAH special education order · November 18, 2016
Order Denying Motion for Stay Put
OAH Case No. 2016110548 · ALJ Adrienne L. Krikorian
OAH denied Student's request for stay put at a community college transition program because her last agreed-upon and implemented IEP placed her at the Marchus School, not the college program.
Summary
Student asked for stay put at the Los Medanos Community College (LMC) Transitions Program. She argued that her guardian had suggested the program at the October 9, 2015 IEP meeting and that District said she would be referred to the college's Disabled Student Services. District opposed. OAH denied the motion because the October 9, 2015 IEP, which was signed and implemented, named the Marchus School Special Education Center as the placement, and there was no evidence of any later signed and implemented IEP placing Student at LMC.
Why it matters
Stay put is set by the placement written into the last agreed-upon and implemented IEP. A program discussed or suggested at a meeting does not count unless it is written into a signed and implemented IEP. Parents who want a transition program protected should make sure the IEP itself names it.
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, subd. (a)
- 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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016110548 v. ORDER DENYING MOTION FOR
STAY PUT
ANTIOCH UNIFIED SCHOOL DISTRICT.
On November 10, 2016, Student filed a motion for stay put supported by a declaration under penalty of perjury and authenticated exhibits. On November 17, 2016 District filed an opposition to the motion supported by a declaration and authenticated exhibits.
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.)
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).)
DISCUSSION
Student’s complaint asserts that District represented to Student’s guardian at Student’s October 9, 2015 IEP team meeting that Student would be “referred to Disabled Student Services at [Los Medanos Community College].” Her complaint alleges she was not accepted to the LMC program in August 2016 when she went to enroll. Student contends in this motion that she is entitled to stay put at the “LMC Transitions Program” based upon her All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
Guardian’s suggestion during the October 9, 2015 IEP meeting that the program would constitute an appropriate placement for Student’s transition.
Both parties attached copies of Student’s last agreed upon and implemented IEP dated October 9, 2015. Although District’s copy appears to be more complete, neither copy included the meeting notes nor has any reference to Guardian’s purported request for transitional placement at LMC.2 The October 9, 2015 IEP is the operative IEP for purposes of defining Student’s right to stay. The IEP specifically identifies as its “Offer of FAPE – Educational Setting” the Marchus School Special Education Center within the Contra Costa County Office of Education. Neither party disputes that Guardian signed the IEP or that District implemented its provisions.
Student offered no persuasive evidence that at any time after October 9, 2015 Guardian signed and District implemented any subsequent amendment IEP or other IEP that specifically identified Student’s placement at “LMC Transitions Program” or any program at LMC. Accordingly, Student is not entitled to LMC Transitions Program as her stay put.
Student’s motion is denied.
IT IS SO ORDERED.
DATE: November 18, 2016
ADRIENNE L. KRIKORIAN
Administrative Law Judge Office of Administrative Hearings District’s supporting declaration purports to attach as Exhibit B the notes from the October 2015 IEP. However Exhibit B consists of notes from the September 2016 IEP and is therefore not informative, or relevant.