California OAH special education order · February 14, 2018
Order Requiring Additional Evidence for Stay Put Motion
OAH Case No. 2018020299 · ALJ Penelope S. Pahl
OAH held off ruling on Student's stay put motion for Sierra Foothill Academy and ordered more evidence, because Student had not shown his last agreed-upon and implemented placement.
This case went to decision
Student v. San Juan Unified School District: San Juan Unified must train staff on transfer-student IEP meetings; ALJ denies nonpublic school reimbursement and other claims. (2018)
Summary
Student moved from Clear Creek Elementary School District to San Juan Unified. Student filed a due process complaint challenging San Juan's interim IEP and asked for stay put at Sierra Foothill Academy. San Juan opposed, arguing the school was outside its boundaries, it had no contract with the school, and stay put should be a special day class or a non-public school within the district. OAH found the motion lacked evidence: the attached June 6, 2017 IEP had no authenticating declaration, and nothing showed which school Student attended after enrolling in San Juan or whether he attended Sierra Foothill Academy at all. OAH ordered Student to file that evidence by February 20, 2018, with any response due by noon on February 23, 2018.
Why it matters
A stay put motion must include sworn, authenticated evidence of the last agreed-upon and implemented placement, including where the student actually attended school and for how long. Attaching an IEP without a declaration is not enough.
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)
- Johnson v. Special Education Hearing Office (2002) 287 F.3d 1176
- Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1
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. 2018020299 v. ORDER REQUIRING ADDITIONAL
EVIDENCE FOR STAY PUT MOTION
SAN JUAN UNIFIED SCHOOL
DISTRICT.
On November 6, 2017, Student enrolled in the San Juan Unified School District in Sacramento County, having moved from the Clear Creek Elementary School District in Nevada County with his mother. Clear Creek is part of the Nevada County Special Education Local Plan Area (SELPA). San Juan Unified School District administers its own Special Education Local Plan Area. On February 6, 2018, Student filed a request for due process hearing challenging whether a November 28, 2017 interim IEP offered by San Juan, provides a free, appropriate public education. Student also filed a motion for stay put, asserting that Student should be allowed to attend Sierra Foothill Academy during the pendency of this dispute. On February 12, 2018, District filed an opposition on the ground that Sierra Foothill Academy was not within the District’s boundaries, the District did not contract with Sierra Foothill Academy and that Student’s appropriate stay put placement is either a special day class or non-public school within the district boundaries.
APPLICABLE LAW
Until due process hearing procedures are complete, a special education student is entitled to remain in his or her “then-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.” 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).)
For purposes of stay put, the current educational placement is typically the placement called for in the student’s most recently implemented individualized education program.
(Johnson v. Special Education Hearing Office (2002) 287 F. 3d 1176, 1180.) However, All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
some exceptions apply to that rule. (Johnson, supra, 287 F. 3d at p. 1181; Ms. S. ex rel. G. v.
Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1133 [rev’d on other grounds].)
Furthermore, if a student’s placement in a program was intended only to be a temporary placement, such placement does not provide the basis for a student’s “stay put” placement.
(Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1, 7-8; Leonard by Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558, 1563-64.)
DISCUSSION
The difficulty with this Stay Put motion is that it lacks evidence of Student’s current placement. While Student attached a June 6, 2017 IEP, there was no declaration authenticating the document. Nor was there evidence as to which school Student attended after he enrolled in the San Juan Unified School District. Nor any evidence that Student attended Sierra Foothills Academy.
Here, Student has not provided adequate evidence of his last agreed upon and implemented placement. No evidence has been submitted establishing when Student began attending Sierra Foothills Academy, whether Student has continuously attended Sierra Academy up through filing the complaint, or whether Student attended a different placement upon enrollment in San Juan.
ORDER
Student is ordered to provide evidence of the school(s) attended from the time Student asserts an implemented IEP resulted in enrollment through the time this request for due process was filed. This evidence must be filed and served no later than Tuesday, February 20, 2018. Any response to the evidence provided shall be filed no later than noon on Friday, February 23, 2018.
IT IS SO ORDERED.
DATE: February 14, 2018
PENELOPE S. PAHL
Administrative Law Judge Office of Administrative Hearings