California OAH special education order · May 11, 2018
Order Denying Motion for Stay Put
OAH Case No. 2018041172 · ALJ Sabrina Kong
OAH denied Student's unopposed stay put motion because the deleted language about sick staff appeared only in the IEP's health summary present levels, not in District's offer of placement and services.
This case went to decision
Menifee Union School District v. Student: Menifee Union may reassess a medically fragile student without consent and implement its December 2017 IEP over parent objection. (2018)
Summary
Student asked for stay put to keep language from the last agreed-upon November 15, 2016 IEP health summary stating that staff should not provide services if they are sick or exposed to ill people. District had removed that language in its proposed December 4, 2017 IEP and did not oppose the motion. OAH denied the motion because stay put covers the district's offer of educational placement and services, and present-levels information is not part of that offer. Student also showed no evidence that District had actually changed how services were delivered by ill or exposed providers.
Why it matters
Stay put protects the placement and services in the last agreed-upon IEP, not descriptive language in the present levels sections. Parents who want a health or safety protection enforced through stay put should make sure it is written into the IEP's services, accommodations, or other offer of FAPE, and should be ready to show an actual change in the services being delivered.
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
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:
MENIFEE UNION SCHOOL DISTRICT, OAH Case No. 2018041172 v. ORDER DENYING MOTION FOR
STAY PUT
PARENT ON BEHALF OF STUDENT.
On May 7, 2018, Student filed a motion for stay put. District did not file an opposition.
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).)
DISCUSSION
Student complained that District unilaterally deleted language in the Present Levels of Academic Achievement and Functional Performance section of the health summary in the last agreed upon November 15, 2016 individualized education program which stated, “Staff should not provide services if they are sick or exposed to other ill people.” Student argued that this language should not be deleted in District’s proposed December 4, 2017 IEP because she was entitled to stay put.
Stay put applies to District’s offer of educational placement and services. Since the language was part of the information which appeared in the health summary present performance levels, and not part of District’s free appropriate public education offer, this is not a subject for which stay put applies. Student presented no evidence that District made any change to Student’s educational program in regards to the provision of services to Student by service providers who may be ill or exposed to ill persons.
ORDER
Student’s motion for stay put is denied.
IT IS SO ORDERED.
DATE: May 11, 2018
SABRINA KONG
Administrative Law Judge Office of Administrative Hearings