California OAH special education order · August 14, 2018
Order Granting Motion for Stay Put
OAH Case No. 2018071218 · ALJ June Lehrman
OAH granted Student's stay put motion, ordering Chino Valley to provide the preschool special day class from Student's prior Bellflower IEP despite his incomplete immunizations, because state law lets IEP students access their services.
Summary
Student moved from Bellflower Unified to Chino Valley mid-year and was not allowed to enroll because he was not fully immunized. Chino Valley offered a preschool special day class only if Student was vaccinated, and otherwise a home hospital program. Parent did not agree to either offer. Over Chino Valley's opposition, OAH held that stay put is the placement and services in the September 8, 2017 Bellflower IEP, because Health and Safety Code section 120335(h) does not bar an IEP student from accessing IEP services, and home instruction cannot replace a school-based placement.
Why it matters
An IEP student who is not fully vaccinated can still enforce a school-based stay put placement, because California's immunization law has an exception for special education services and a district cannot swap in home instruction. The ruling decides only stay put; it does not decide whether the district's offers denied a FAPE.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Health & Saf. Code, § 120335, subd. (h)
- 34 C.F.R. § 300.323(e)
- 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. 2018071218 v. ORDER GRANTING MOTION FOR
STAY PUT
CHINO VALLEY UNIFIED SCHOOL
DISTRICT.
On July 31, 2018, Student filed a motion for stay put. Chino Valley Unified School District filed an opposition on August 10, 2018, which was considered over Student’s objection that it was untimely. As discussed below, the motion for stay put is granted.
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.)
When a special education student transfers to a new school district in the same academic year, the new district must adopt an interim program that approximates the student’s old IEP as closely as possible for 30 days until the old IEP is adopted or a new IEP is developed. (20 U.S.C. § 1414(d)(2)(C)(i)(1); 34 C.F.R. § 300.323(e); Ed. Code, § 56325, subd. (a)(1); see Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1134, 20 U.S.C. § 1414(d)(1)(B).)
California Health and Safety Code, section 120335, provides that public schools shall not admit students who have not been fully immunized against a specific list of diseases.
However, California Health and Safety Code, section 120335, subdivisions (f), (g) and (h)
contain exceptions pursuant to which certain individuals’ rights may prevail over the general policy. Specifically, California Health and Safety Code, section 120335, subdivision (h), states: “This section does not prohibit a pupil who qualifies for an individualized education program, pursuant to federal law and Section 56026 of the Education Code, from accessing any special education and related services required by his or her individualized education program.”
DISCUSSION
Student’s complaint alleges he attended Bellflower Unified School District until December 2017, pursuant to an IEP dated September 8, 2017, to which Parent consented.
The September 8, 2017 IEP offered placement in a special day class in a public preschool, for the entire school day, with 180 minutes per day of specialized academic instruction five days per week, plus two 20 minute sessions of weekly group speech and language therapy within a group of a maximum of three students, and transportation.
The family moved to Chino Valley Unified School District in January 2018. Student had not been fully immunized against the complete list of diseases specified by California Health and Safety Code, section 120335. Student contends that he was not permitted to enroll. Chino Valley convened IEP meetings for Student on February 14, 2018, and April 24, 2018, at which it offered a special day class in a public preschool. Chino Valley offered the special day class placement on the condition Student was vaccinated with all generally required immunizations. Alternatively, if Student was not vaccinated, Chino Valley offered a home hospital program. Parent did not consent. Thus, Student’s last agreed upon and implemented IEP was the September 8, 2017 IEP from Bellflower.
Notwithstanding Parent’s refusal to immunize Student with all the normally required immunizations, Student’s last agreed upon and implemented IEP from Bellflower required placement in a school environment, with specified services. Student’s Bellflower September 8, 2017 IEP specifically required placement in a preschool environment, with specified services. Pursuant to California Health and Safety Code, section 120335, subdivision (h)
Student is not prohibited accessing these. 1 Home instruction cannot replace the placement and services in the September 8, 2017, IEP and thus is not stay put. (See, e.g., Student v.
Long Beach Unified School District and Marshall Academy of the Arts (October 9, 2017 Order Granting Stay Put) OAH Case No. 2017090407.) Accordingly, Student’s stay put is the placement and services specified in the Bellflower September 8, 2017 IEP.
This ruling is limited to Student’s stay-put placement pursuant to the Bellflower IEP. Student’s complaint includes a claim that Chino Valley denied him a free appropriate public education for the 2017-2018 school year, by failing to provide Student with services comparable to those included in the September 8, 2017 IEP from Bellflower when he transferred to Chino Valley in January 2018. Chino Valley argues that the immunization requirement renders it unable to provide classroom placement to Student, and thus that the home hospital program it offered “approximated” the September 8, 2017, IEP “as closely as possible.” This ruling determines only Student’s stay put, and does not address the merits of Student’s claim that Chino Valley’s IEP offers denied Student a FAPE.
ORDER
1. Student’s motion for stay put is granted.
2. During the pendency of this due process matter, Student’s stay put placement
shall consist of the placement and services stated in his Bellflower Unified School District individualized education program dated September 8, 2017.
DATE: August 14, 2018
JUNE LEHRMAN
Administrative Law Judge Office of Administrative Hearings