California OAH special education order · September 6, 2018
Order Denying Motion for Stay Put
OAH Case No. 2018080977 · ALJ Cynthia Fritz
OAH denied Student's stay put motion as unnecessary because Rescue agreed the May 2017 IEP was the last agreed-upon IEP and showed Student was already receiving 500 weekly minutes of specialized instruction.
Summary
Student asked for a stay put order requiring Rescue to keep providing 500 minutes a week of specialized academic instruction under her last agreed-upon IEP, dated May 22, 2017. Student pointed to a June 2018 prior written notice that listed only 350 minutes. Rescue answered that the 350 figure was a typographical error, that Student was receiving 500 minutes, and that it agreed the May 2017 IEP was the last agreed-upon IEP. OAH denied the motion because no dispute over placement existed that required a stay put order.
Why it matters
OAH generally will not issue a stay put order unless there is a real dispute over the student's current placement. A district can defeat the motion by agreeing to the last agreed-upon IEP and showing, for example through a declaration, that it is fully implementing it.
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:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2018080977 v. ORDER DENYING MOTION FOR
STAY PUT
RESCUE UNION SCHOOL DISTRICT.
On August 24, 2018, Parent on behalf of Student, filed for a Due Process Hearing Request (complaint) with the Office of Administrative Hearings, naming Rescue Union School District.
On August 24, 2018, Student filed a motion for stay put, requesting an order directing Rescue to continue to provide her with 500 minutes a week of specialized academic instruction, as stated in her last consented-to IEP, dated May 22, 2017. Student argues that her May 2, 2018, IEP was not finalized. Additionally, Student contends that Rescue’s prior written notice on June 2, 2018, stated that she was receiving 350 minutes a week of specialized academic instruction, thus, admitting that it is was not implementing her last consented-to IEP.
On August 29, 2018, Rescue filed opposition to Student’s stay put motion declaring no controversy, as it agrees that the May 22, 2017, IEP is the last agreed-to IEP, and that the 350 minutes stated in the prior written notice document is a typographical error. Rescue maintains that Student is receiving 500 minutes of specialized academic instruction, despite the error in the notice. Because of this, Rescue believes that no dispute exists that requires a stay put order.
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 All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
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 is entitled to remain in her last agreed upon and implemented placement while a dispute is pending. An order for stay put is generally not required unless a dispute over placement exists. Rescue established through counsel’s declaration that Student is currently receiving 500 minutes of specialized academic instruction per week, and that the June 2, 2018, prior written notice showing 350 minutes for specialized academic instruction per week was in error. Moreover, Rescue agrees that the May 22, 2017, IEP is the last consented-to IEP. Thus, no current controversy exists that requires a stay put order, and the motion is denied as unnecessary.
IT IS SO ORDERED.
DATE: September 6, 2018
CYNTHIA FRITZ
Administrative Law Judge Office of Administrative Hearings