California OAH special education order · March 25, 2019
Order Denying Motion for Stay Put
OAH Case No. 2019020640, 2019030700 · ALJ Linda Johnson
OAH denied Student's stay put motion because Student did not allege any dispute over placement, and Poway agreed the October 2018 IEP is stay put and is being implemented.
Summary
Student asked OAH for a stay put order naming the October 2, 2018 IEP as her stay put placement. Poway opposed. It said stay put was not in dispute and that it has implemented, and will keep implementing, that IEP. OAH denied the motion because a stay put order is generally not needed unless there is a dispute over placement, and Student had not alleged one. Student may file a new request that explains the specific dispute and the stay put terms sought.
Why it matters
A stay put motion should explain the actual disagreement over the student's placement or services. If the district already agrees on the stay put IEP and is implementing it, OAH may deny the motion as unnecessary.
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 Consolidated Matters of:
POWAY UNIFIED SCHOOL DISTRICT, OAH Case No. 2019020640 v.
PARENT ON BEHALF OF STUDENT,
PARENT ON BEHALF OF STUDENT, OAH Case No. 2019030700 v. ORDER DENYING MOTION FOR STAY
PUT
POWAY UNIFIED SCHOOL DISTRICT.
On March 20, 2019, Student filed a motion for stay put. On March 22, 2019, Poway Unified School District filed an opposition on the ground that stay put was not in dispute and Poway has, and will continue to, implement Student’s last agreed upon individualized education program.
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).)
All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
DISCUSSION
Student is entitled to remain in her last agreed upon and implemented placement while a dispute is pending and an order for stay put is generally not required unless a dispute over placement exists. Here, Student has not alleged whether a dispute exists as to Student’s placement and services while the dispute is pending. Student identifies the October 2, 2018, IEP as her stay put placement. Poway agrees that the October 2, 2019 IEP is Student’s stay put placement and it has been, and will continue to, implement the IEP. If there is a dispute that exists as to that placement, Student may file a request for stay put with more specificity as to the nature of the dispute and the terms of stay put. The motion for stay put is denied.
ORDER
Student’s motion for Stay Put is denied.
DATE: March 25, 2019
LINDA JOHNSON
Administrative Law Judge Office of Administrative Hearings