California OAH special education order · August 26, 2019
Order Denying Motion for Stay Put
OAH Case No. 2019041141 · ALJ Adrienne L. Krikorian
OAH denied Student's stay put motion because Parent consented, with exceptions, to the October 2018 IEP, so Student gave no persuasive reason to treat the 2014 IEP as the last agreed-upon placement.
This case went to decision
Upland Unified School District v. Student: Upland Unified may reassess a 14-year-old student with ADHD without parental consent under its March 2019 assessment plan. (2019)
Summary
In a due process case filed by Upland, Student asked OAH to order stay put based on a January 30, 2014 IEP, saying it was the last IEP Parent consented to. Upland opposed. It showed that Parent signed and consented to the October 3, 2018 IEP on October 9, 2018, with listed exceptions, and that Upland had implemented that IEP. OAH denied the motion because Student offered no persuasive authority or explanation for why the 2014 IEP, rather than the later consented-to IEP, was the stay put placement.
Why it matters
Signing consent to a newer IEP, even with written exceptions, can make that IEP the stay put placement and replace an older one. Parents should think carefully about how they word their consent before signing.
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:
UPLAND UNIFIED SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.
OAH CASE NUMBER 2019041141
ORDER DENYING MOTION FOR STAY PUT
On April 25, 2019, Upland Unified School District filed a request for a due process hearing naming Parent on behalf of Student. On August 21, 2019, Student filed a motion for stay put. Student’s motion asserts that Student’s stay put placement is that reflected in Student’s January 30, 2014 Individualized Education Program. This Order refers to that document as the 2014 IEP. Parent asserts the 2014 IEP is the last consented to IEP. On August 23, 2019, 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. On August 26, 2019, Student filed a reply to Upland’s opposition.
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 last agreed upon and implemented individualized educational program, called IEP, placement 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 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).) Progressing to the next grade, for example, maintains the status quo.
(Van Scoy ex rel. Van Scoy v. San Luis Coastal Unified School Dist. (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.].)
DISCUSSION
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. Student’s response to Upland’s opposition attached a letter dated October 11, 2018 from Upland. That letter, which requested that Parent sign an assessment plan pursuant to an earlier settlement agreement, did not add facts supporting Student’s position that the January 2014 IEP was stay put. Upland’s opposition includes an attached IEP dated October 3, 2018, referred to as the 2018 IEP. Upland also included a copy of Parent’s letter dated October 16, 2018, again confirming Parent’s consent with exceptions to the October 2018 IEP. Upland asserts that it has implemented the October 2018 IEP based upon Parent’s consent to implement.
Upland maintains that Student’s stay put placement is Student’s October 2018 IEP. The 2018 IEP provided 238 minutes per week of specialized academic instruction.
Parent signed and consented to the 2018 IEP on October 9, 2018, confirming her consent in a letter October 9, 2018, with the following specific exceptions:
1. Upland denied accommodations and modifications.
2. Upland denied to write Student’s health issues.
3. Upland denied to write that Student’s attention deficit hyperactivity disorder
impaired the learning of self and causes him to rush through work.
Student failed to offer any persuasive authority or explanation for his assertion that the January 30, 2014 IEP is the last consented to IEP for the purpose of determining his stay put placement pending the outcome of this case. Therefore, Student’s motion for stay put is denied.
IT IS SO ORDERED.
DATED: August 26, 2019 Adrienne L. Krikorian Administrative Law Judge Office of Administrative Hearings