California OAH special education order · April 5, 2017

Order Denying Student's Motion to Modify Stay Put; and Denying Student's Request to Consider New Documentary Evidence

OAH Case No. 2016110599 · ALJ Sabrina Kong

OAH denied Student's motion to change stay put from a nonpublic school to a District school because stay put keeps the last agreed placement, and rejected a former attorney's invoice submitted after the evidentiary record closed.

Denied Stay put

This case went to decision

Student v. Carlsbad Unified School District: Carlsbad Unified did not deny FAPE; the ALJ found parents' non-cooperation, not the District, delayed nonpublic school placement. (2017)

Summary

Student asked OAH to change his stay put placement from the last agreed-upon nonpublic school to a District school. Student also filed an invoice from his former attorney, which OAH treated as a request to consider new evidence. District opposed both requests. OAH denied the stay put motion because stay put only preserves the last agreed and implemented placement, and a new placement would require District's agreement or an IEP team decision. OAH also denied the invoice as untimely because it was filed two weeks after the last hearing day, when the record was open only for written closing arguments.

Why it matters

Stay put cannot be used to move a student to a new placement. It only keeps the last agreed placement in place, so a change requires the district's agreement or an IEP team decision. Evidence such as attorney invoices must be submitted before the record closes, or OAH will not consider it.

Key authority cited

  • 20 U.S.C. § 1415(j)
  • 34 C.F.R. § 300.518(a)
  • Ed. Code, § 56505, subd. (d)
  • Ed. Code, § 56505, subd. (e)(7)
  • Cal. Code Regs., tit. 5, § 3042, subd. (a)
  • Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618

Topics

stay put change of placement nonpublic school untimely evidence attorney invoice

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. 2016110599 v. ORDER DENYING STUDENT’S

MOTION TO MODIFY STAY PUT;

CARLSBAD UNIFIED SCHOOL AND DENYING STUDENT’S

DISTRICT. REQUEST TO CONSIDER NEW

DOCUMENTARY EVIDENCE

On March 24, 2017, Student filed a Motion to Modify Stay Put. On March 27, 2017 Student filed an invoice from his former attorney with OAH. The attorney invoice shall be deemed Student’s request to consider the invoice as new documentary evidence. On March 29, 2017, District opposed both motions.

APPLICABLE LAW

Stay Put Modification 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).)

DISCUSSION

Student is entitled to remain in his last agreed upon and implemented placement while a dispute is pending and an order for stay put is generally not required unless a dispute over placement exists. Here, Student and District did not dispute that the last agreed upon placement was a non-public school. Student requested that OAH modify the last agreed upon placement from a non-public school, and change it to another placement, a District school. This request is not governed under the principles of stay put. The placement change requested by Student in this motion would require agreement by District, or a determination by Student’s individualized education program team.

The Motion to Modify Stay Put is denied.

New Documentary Evidence Education Code Section 56505, subdivision (e)(7), provides the right of the parties to receive exhibits at least five business days prior to the hearing from other parties to the hearing. (Ed. Code, § 56505 subd. (e)(7).)

The attorney invoice was not submitted until March 27, 2017, two weeks after the last hearing day, March 13, 2017. On the last hearing day, the Administrative Law Judge admitted the documentary evidence requested by the parties and allowed the record to remain open only for the parties to file written closing arguments by March 27, 2017. Because the attorney invoice was presented for the first time well after the close of the record for submission of evidence, it is untimely.

The request to consider the attorney invoice as new documentary evidence is denied.

ORDER

1. Student’s Motion to Modify Stay Put is denied.

2. Student’s request to consider the attorney invoice as new documentary evidence

is denied.

DATE: April 5, 2017

SABRINA KONG

Administrative Law Judge Office of Administrative Hearings