California OAH special education order · August 30, 2019

Order Denying Motion for Stay Put

OAH Case No. 2019050861 · ALJ Linda Johnson

OAH denied Student's stay put request to stay in independent study because that placement came from a Section 504 Plan, and Student had no agreed-upon and implemented IEP.

Denied Stay put

This case went to decision

Student v. Placentia-Yorba Linda Unified School District: Placentia-Yorba Linda Unified prevails on all claims; time-barred child find claims dismissed and 2019 IEP upheld as offering FAPE. (2019)

Summary

Student asked to remain in her independent study placement while the due process case was pending, and Placentia-Yorba Linda Unified School District opposed. OAH found that the independent study placement was provided as a Section 504 Plan accommodation, not through an IEP. Student's initial IEP was never consented to or implemented, so there was no last agreed-upon and implemented IEP to serve as stay put. The motion was denied.

Why it matters

Stay put under the IDEA protects the last agreed-upon and implemented IEP placement, not a placement given under a Section 504 Plan. Families whose child has never had a consented-to and implemented IEP may have no IDEA stay put protection for 504-based arrangements.

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

stay put section 504 plan independent study initial iep last implemented iep

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,

v.

PLACENTIA-YORBA LINDA UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2019050861

ORDER DENYING MOTION FOR STAY PUT

On August 26, 2019, Student filed a motion for stay put. On August 29, 2019, Placentia-Yorba Linda Unified School District filed an 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).)

DISCUSSION

Student filed a motion for stay put alleging she should be allowed to remain in her independent study placement pending the outcome of the due process hearing.

However, Student’s independent study placement was put into place with a 504 Plan accommodation, not though an IEP. Stay put is typically the last agreed upon and implemented IEP, here, Student does not have a last agreed upon and implemented IEP as her initial IEP was not consented to, nor was it implemented. Consequently, Student is not entitled to stay put.

ORDER

Student’s motion for stay put is denied.

DATED: August 30, 2019 Linda Johnson Administrative Law Judge Office of Administrative Hearings