California OAH special education order · June 14, 2018
Order Granting Motion for Stay Put
OAH Case No. 2017121021 · ALJ Sabrina Kong
OAH granted Student's unopposed stay put motion, ordering District to keep providing the placement and services in her August 31, 2017 IEP while the dispute over exiting her from special education is resolved.
This case went to decision
Student v. Baldwin Park Unified School District: Baldwin Park Unified must fund a psychoeducational IEE, restore speech eligibility and services, and provide 27 compensatory hours. (2018)
Summary
At a December 5, 2017 IEP team meeting, District proposed exiting Student from special education. Student filed for due process and then moved for stay put, asking to keep her placement and services under her last agreed-upon IEP of August 31, 2017. District did not respond. Because the parties dispute whether Student should remain in special education, OAH granted the motion and ordered District to provide the placement and services in the August 31, 2017 IEP during the case.
Why it matters
When a district proposes exiting a child from special education and the family files for due process, the child can keep the services in the last agreed-upon and implemented IEP until the case is resolved. A district that does not oppose a stay put motion is likely to see it granted.
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
- Ms. S. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
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. 2017121021 v. ORDER GRANTING MOTION FOR
STAY PUT
BALDWIN PARK UNIFIED SCHOOL
DISTRICT.
On December 27, 2017, Student filed for due process hearing, and OAH granted Student’s motion to amend the complaint on May 8, 2018. On May 10, 2018, Student filed a motion for stay put. District did not file any response.
District proposed exiting Student from special education at the December 5, 2017 individualized education program team meeting which prompted Student’s due process filing and the filing of her stay put motion. The last agreed upon IEP was August 31, 2017, a copy of which was attached to Student’s stay put motion.
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).)
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 All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
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 contends she is entitled to remain in her current placement and receive special education services in her August 31, 2017 IEP pending the due process hearing and all appeals. Because a dispute exists as to whether Student shall remain in special education, Student’s stay put motion is granted.
ORDER
Student’s stay put motion is granted. Student shall receive the placement and services in her August 31, 2017 IEP, her last agreed upon and implemented educational program.
IT IS SO ORDERED.
DATE: June 14, 2018
SABRINA KONG
Administrative Law Judge Office of Administrative Hearings