California OAH special education order · February 12, 2019
Order Denying Motion for Stay Put
OAH Case No. 2019020193 · ALJ Penelope S. Pahl
OAH denied Student's stay put motion because Student attached only a Section 504 plan, not an IEP, and Section 504 has no stay put protection like the IDEA's.
Summary
Student asked OAH to order stay put. San Lorenzo opposed, arguing that Student was not a student with a disability under the IDEA and had only received Section 504 accommodations. OAH found that the document Student attached as his last consented-to IEP was actually a Section 504 accommodation plan. There was no evidence of a current IDEA placement, and Section 504 has no stay put provision, so the motion was denied.
Why it matters
Stay put under the IDEA protects only a placement in an agreed-upon and implemented IEP. A student who has only a Section 504 plan cannot use OAH stay put to keep those accommodations in place during a dispute.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
- 29 U.S.C. § 794
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. 2019020193 v. ORDER DENYING MOTION FOR
STAY PUT
SAN LORENZO VALLEY UNIFIED
SCHOOL DISTRICT.
On February 8, 2019, Student filed a motion for stay put. On February 11, 2019, San Lorenzo Unified School District filed an opposition on the ground that Student was not a student with a disability as defined by the Individuals with Disabilities in Education Act.
San Lorenzo argues that, while Student has been provided accommodations pursuant to Section 504 of the Rehabilitation Act of 1973, Section 504 does not provide the stay put protections that are available under the IDEA.
APPLICABLE LAW
A student who is eligible for special education pursuant to the IDEA and California special education laws, is entitled to remain in his or her current educational placement, during the pendency of a dispute under the IDEA, 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 order to determine the last agreed to placement, Student is required to attach a copy of the last consented-to IEP to the motion for stay put.
Here, while identifying the document as his last consented-to IEP, Student has attached a copy of a plan for accommodations pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794). No evidence has been presented that Student has a current placement under the IDEA in which he should be allowed to “stay put.” Section 504 of the Rehabilitation Act of 1973 does not have a provision requiring that Student be allowed to All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
stay in a then-current placement pending resolution of disputes regarding that statute. (Id.)
Student’s request for stay put is DENIED.
IT IS SO ORDERED.
DATE: February 12, 2019
PENELOPE S. PAHL
Administrative Law Judge Office of Administrative Hearings