California OAH special education order · September 27, 2017
Order Denying Motion for Stay Put
OAH Case No. 2017060660 · ALJ June Lehrman
OAH denied Student's stay put request for a nonpublic high school with a one-to-one aide. The last agreed-upon IEP had no aide, and Student had already graduated and moved to a transition program.
Summary
Student asked OAH to keep her at Anova School, a nonpublic high school, with a one-to-one aide while her due process case was pending, and District opposed. OAH denied the motion for two reasons. First, the last agreed-upon and implemented IEP, dated May 4, 2016, offered the nonpublic school but no one-to-one aide. Second, Student had graduated with a certificate of completion and moved to a transition classroom, and she cited no authority for returning her to high school. District argued persuasively that the natural next step after high school is an adult transition program.
Why it matters
Stay put protects only what the last agreed-upon and implemented IEP actually provided, so families should attach the IEP and prove each service they claim. Stay put also follows a student's natural progression, so a student who has finished high school generally cannot use it to return to high school.
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)
- Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
- Van Scoy v. San Luis Coastal Unified School Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083
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. 2017060660 v. ORDER DENYING MOTION FOR
STAY PUT
WINDSOR UNIFIED SCHOOL
DISTRICT.
On June 7, 2017, Parent on behalf of Student filed a Due Process Hearing Request (complaint) with the Office of Administrative Hearings, naming Windsor Unified School District. On September 1, 2017, Student filed an amended request for due process which was treated as a motion to amend the complaint, and granted by OAH Order dated September 8, 2017.1 On October 19, 2017, Student filed a Motion for Stay Put. On September 22, 2017, District opposed. As explained below, the Motion is denied.
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).)
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 Buried within Student’s amended complaint was a request for stay put. District, in an abundance of caution, filed an opposition on September 7, 2017, arguing however that the motion was not properly filed. OAH’s September 8, 2017 Order directed Student to file a separate motion with supporting evidence; as a result, the stay put request within the amended complaint and District’s opposition thereto are deemed moot and subsumed within the instant Order.
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.].)
DISCUSSION
Student’s motion for stay put seeks continued placement at a non-public high school, Anova School, with a one-to-one aide, as her stay-put placement. Student’s request is denied for two reasons.
First, it does not appear that a one-to-one aide was, in fact, included in Student’s last agreed-upon and implemented IEP. It appears that the last agreed upon IEP was dated May 4, 2016, and that it offered the nonpublic school, but without a one-to-one aide. The IEP itself is not attached to the motion or to the declaration of counsel, but both the allegations in the motion and District’s opposition establish that no one-to-one aide was included in the last IEP. For that reason, the requested stay put placement and related services have not been factually established, and the motion is denied.
Second, Student acknowledges that circumstances have changed because she has graduated from high school with a certificate of completion and has moved to a transition classroom. Student cites no authority that despite these changed circumstances and progression, her stay put should return her to high school. District, on the other hand argues persuasively that the natural progression after completion of high school is into an adult transition program, and that replacement into the high school setting is not available once a student has graduated. (See, e.g. Student v. Garden Grove Unified School Dist., Order Denying Motion for Stay Put (August 23, 2016) Cal.Offc.Admin.Hrngs. Case No.
2016040019.)
For these reasons the motion for stay put is denied.
IT IS SO ORDERED.
DATE: September 27, 2017
JUNE LEHRMAN
Administrative Law Judge Office of Administrative Hearings