California OAH special education order · July 3, 2018
Order Denying Motion for Stay Put
OAH Case No. 2018061081 · ALJ Clifford H. Woosley
OAH denied Student's request for stay put at a nonpublic school because there was no agreed-upon, implemented IEP. No IEP placement was made, and Student admitted no stay put IEP existed.
Summary
Student asked OAH to order District to place Student at a nonpublic school while the due process case was pending. Student had attended a county office of education charter school and had not finished enrolling with District, and District opposed the motion. A charter school IEP meeting on May 29, 2018 ended without a placement or an IEP document, and Student conceded there was no stay put IEP. OAH found there was no last agreed-upon and implemented IEP, and no other District agreement on placement, so it denied stay put.
Why it matters
Stay put protects only a placement that was already agreed to and put into effect, usually through an implemented IEP. Families moving between agencies, or whose IEP meeting ended without a finished placement, may have no stay put rights to a placement they are still seeking.
Key authority cited
- 20 U.S.C. § 1415(j)
- Ed. Code § 56505, subd. (d)
- Ed. Code § 48915.5
- Casey K. v. St. Anne Community High School Dist. No. 302 (7th Cir. 1998) 400 F.3d 508
- 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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2018061081 v.
ORDER DENYING MOTION FOR
SALINAS UNION HIGH SCHOOL STAY PUT
DISTRICT.
On June 25, 2018, Student filed a request for due process hearing (complaint) naming Salinas Union High School District. On June 26, 2018, Student filed a Motion for Stay Put, requesting an order directing District to place Student at a nonpublic school during the pendency of his due process proceeding. On June 29, 2018, District filed opposition to the stay put motion.
A special education student is entitled to remain in his or her current educational placement pending the completion of due process hearing procedures unless the parties agree otherwise. (20 U.S.C. § 1415(j); Ed. Code, §§ 56505, subd. (d), 48915.5.) Stay put operates automatically upon due process filing. (See Casey K. v. St. Anne Community High School District No. 302 (7th Cir. 1998) 400 F.3d 508, 511.) For purposes of stay put, the current educational placement is typically the placement called for in the student's individualized education program (IEP) which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Board of Education (6th Cir. 1990) 918 F.2d 618, 625.)
Student’s complaint seeks an order that District develop an appropriate IEP and place Student at the Pine Hill nonpublic school for 2018-2019. For 2017-2018 school year, Student attended a Monterey County Office of Education charter school. The complaint acknowledges that Student had not yet completed enrollment with District.
Student did not allege in his complaint or motion for stay put that there is an agreed upon, implemented IEP. Student alleges in his complaint that Student’s charter school had convened an IEP meeting on May 29 2018, which District personnel attended. However, the complaint states that no IEP placement was made and no IEP document issued. Student readily admits that “there is no stay put IEP document” at page 2, line 10 of his motion.
Further, Student has not alleged District has otherwise agreed to a placement. Since Student had not previously been found eligible for special education, there is no last agreed upon and implemented IEP entitling Student to stay put placement.
ORDER
1. Student’s motion for stay put is denied.
Dated: July 03, 2018
CLIFFORD H. WOOSLEY
Administrative Law Judge Office of Administrative Hearings