California OAH special education order · April 11, 2018

Order Denying Motion for Stay Put

OAH Case No. 2018031003 · ALJ Jackie C. Dai

OAH denied Student's stay put motion seeking The Prentice School because the August 2017 IEP placed Student there only temporarily, for the first semester, and expressly disclaimed it as stay put.

Denied Stay put

This case went to decision

Student v. Springs Charter Schools, also known as River Springs Charter School (consolidated): River Springs Charter must provide 128 hours of compensatory instruction, but its offer of placement at Flabob Academy is upheld as FAPE. (2019)

Summary

Student asked OAH to order that The Prentice School, a nonpublic school, was her stay put placement under the last agreed and implemented IEP of August 4, 2017. Student argued that Charter's March 2018 offer of a charter school placement was a material change from Prentice. Charter opposed. It pointed to IEP language placing Student at Prentice only for the first semester of 2017-18, stating Charter was not offering Prentice for stay put purposes, and making the placement contingent on progress. OAH found the placement was temporary and for a finite period, so it could not serve as the basis for stay put, and denied the motion.

Why it matters

A placement that the IEP describes as temporary or time-limited, especially one that says it is not a stay put placement, may not protect a student during a dispute. Parents should read IEP placement wording closely before consenting.

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
  • Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1

Topics

stay put temporary placement nonpublic school charter school last agreed upon placement

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. 2018031003 v. ORDER DENYING MOTION FOR

STAY PUT

RIVER SPRINGS CHARTER SCHOOL.

On March 21, 2018, Student filed a request for due process hearing (complaint)

naming River Springs Charter School (Charter) and motion for stay put.

On April 3, 2018, Student filed a first amended request for due process hearing (amended complaint). OAH granted the unopposed request and the amended complaint was deemed filed on April 9, 2018.

On April 4, 2018, Student filed a first amended motion for stay put with supporting exhibits and parent’s declaration. The motion seeks an order that The Prentice School, a non-public school, is Student’s last agreed upon placement. On April 9, 2018, Charter filed an opposition to Student’s first amended motion for stay put with supporting exhibits and a declaration from Charter’s special education director.

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.)

However, 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.)

All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.

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

The relevant facts as alleged in Student’s complaint and based upon the evidence submitted are undisputed. Student is twelve years old and eligible for special education.

Student enrolled in Charter in August of 2015. The parties agree that Student’s August 4, 2017 IEP is the last agreed upon and implemented IEP.

Student’s first amended motion for stay put is supported by the sworn declaration of Parent, with attached IEPs. Student contends that her stay put placement during the pendency of this litigation under that IEP is The Prentice School. Student argues that the Charter’s offer of a charter school at the March 2, 2018 IEP was a material change of placement that was not equivalent to Prentice.

Charter’s opposition is supported by the sworn declaration of the Director of Special Education, with attached IEPs. The August 4, 2017 IEP states “Placement at The Prentice School as NPS for the first semester of the 2017-18 school year…,” “River Springs Charter School is not offering Prentice as the specified school for stay-put circumstances,” and “Placement is contingent on whether or not Student is making sufficient progress based on her unique needs based on data provided.” Since Student’s placement at Prentice was for a finite temporary period of time, it cannot be the basis for stay put. Accordingly, Student’s motion for stay put is denied.

IT IS SO ORDERED.

DATE: April 11, 2018

JACKIE C. DAI

Administrative Law Judge Office of Administrative Hearings