California OAH special education order · December 21, 2018
Order Denying Motion for Stay Put of 2014 IEP
OAH Case No. 2018120463 · ALJ Rita Defilippis
OAH denied Student's request to use a 2014 IEP as stay put because Parent had consented, with written exceptions, to an October 3, 2018 IEP, which became the stay put placement.
Summary
Student filed for due process and asked OAH to set stay put as the January 30, 2014 IEP, saying it was the last IEP Parent consented to. Upland opposed. It showed that Parent signed consent to the October 3, 2018 IEP with written exceptions and confirmed that consent in letters dated October 9 and October 16, 2018. OAH found Student gave no persuasive authority or explanation for treating the 2014 IEP as the last consented-to IEP, so it denied the motion. OAH set stay put as the October 2018 IEP: 238 minutes per week of specialized academic instruction in a separate classroom on an integrated campus.
Why it matters
Signing consent to an IEP, even with written exceptions, can make that IEP the stay put placement. Parents who disagree with an IEP should think carefully before consenting, and should be ready to explain with legal authority why an older IEP should control.
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
- 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. 2018120463 v. ORDER DENYING MOTION FOR
STAY PUT OF 2014 IEP
UPLAND UNIFIED SCHOOL DISTRICT.
On December 13, 2018, Student filed a request for a due process hearing naming Upland Unified School District, and a motion for stay put. Student’s motion asserts that Student’s stay put placement is that reflected in Student’s January 30, 2014 IEP, which Parent asserts is the last consented to IEP. On December 18, 2018, Upland filed an opposition claiming that Student’s stay put placement is that reflected in Student’s October 3, 2018 IEP, which Upland asserts Parent consented to on October 9, 2018.
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.)
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).)
Courts have recognized, however, that because of changing circumstances, the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35, superseded by statute on other grounds, 20 U.S.C. § 1414(d)(1)(B).) Progression to the next grade maintains the status quo for purposes of stay put. (Van Scoy ex rel. Van Scoy v. San Luis Coastal Unified School Dist.
All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
(C.D. Cal. 2005) 353 F.Supp.2d 1083, 1086 [“stay put” placement was advancement to next grade]; see also Beth B. v. Van Clay (N.D. Ill. 2000) 126 F.Supp.2d 532, 534; Fed.Reg., Vol.
64, No. 48, p. 12616, Comment on § 300.514 [discussing grade advancement for a child with a disability.].)
Student’s complaint includes an attached IEP dated October 3, 2018, which Parent consented to on October 9, 2018, with the following Parent written exceptions: 1. Upland denied accommodations and modifications, 2. Upland denied to write Student’s health issues, and 3. Upland denied to write that Student’s ADHD impaired the learning of self and causes him to rush through work. Student’s motion for stay put attaches Student’s January 30, 2014 IEP asserting that it was the last consented to IEP and therefore determines Student’s stay put placement. Upland’s opposition to Student’s motion for stay put attaches Student’s October 3, 2018 IEP which reflects Parents signed consent to the IEP with exceptions. Upland also included Parent’s letter dated October 9, 2018 again documenting consent to the October 3, 2018 IEP with exceptions, as well as Parent’s letter dated October 16, 2018, again reflecting Parent’s consent with exception to the October 3, 2018 IEP. Upland maintains that Student’s stay put placement is that reflected in Student’s October 3, 2018 IEP: 238 minutes per week of specialized academic instruction.
Student failed to set forth any persuasive authority or explanation for his assertion that the January 30, 2014 IEP is the last consented to IEP for the purposes of determining his stay put placement. Student’s motion for stay put is Denied.
ORDER
1. Student’s motion for stay put as to the 2014 IEP is DENIED. is
2. Student’s stay put placement pending the outcome of the due process hearing
is that set forth in his October 3, 2018 IEP: 238 minutes per week specialized academic instruction in a separate classroom in an integrated facility.
IT IS SO ORDERED.
DATE: December 21, 2018
RITA DEFILIPPIS
Administrative Law Judge Office of Administrative Hearings