California OAH special education order · August 21, 2019
Order Granting Motion for Stay Put
OAH Case No. 2019080541 · ALJ Penelope S. Pahl
OAH granted stay put in Dublin's transition program, rejecting Dublin's argument that Student's conservatorship made his conservator's home district responsible, because residency is a factual question for hearing.
Summary
Student, nearly 21 and placed in a group home inside Dublin's boundaries by a regional center, asked for stay put after Dublin ended his services when his grandmother, who lives in Amador County, became his conservator. Dublin argued that under Education Code section 56041 the district where the conservator lives is responsible, so Dublin owed nothing. OAH granted stay put because Dublin cited no law showing the conservatorship ended stay put rights, and residency is a fact question to decide at hearing. Dublin must provide the services in the February 21, 2019 IEP, including 300 minutes daily of specialized academic instruction in its transition program, speech consultation, extended school year, and door-to-door transportation.
Why it matters
A district cannot stop services by claiming another district became responsible after a conservatorship; stay put keeps the last agreed IEP in place while residency is decided at hearing. Families of adult students who are being conserved should move quickly for stay put if services are cut off.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Ed. Code, § 56041, subd. (b)
- N.E. v. Seattle School District (9th Cir. 2016) 842 F.3d 1093
- L.M. v. Capistrano Unified School District (9th Cir. 2009) 556 F.3d 900
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,
v.
DUBLIN UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2019080541
ORDER GRANTING MOTION FOR STAY PUT
On August 13, 2019, Conservator on behalf of Student, who shall be referred to as Student, filed a Request for Due Process Hearing and a Motion for Stay Put. Dublin Unified School District filed an opposition to the stay put motion on August 19, 2019.
Student filed a reply to Dublin’s opposition on August 20, 2019.
Student, who will be 21 years old in September of 2019, was placed in a residential group home by Regional Center of the East Bay on February 17, 2018. This home is located in the boundaries of the Dublin Unified School District. Student’s grandmother has held his educational rights for many years. The declaration of Dublin’s counsel is not entirely clear; however, it states that sometime in March of 2019 Dublin became aware that Student was conserved or in the process of being conserved. His grandmother became his conservator. Student’s complaint asserts that on May 31, 2019, Dublin terminated services to Student based on the fact that Student’s conservator lived in an area outside the boundaries of the Dublin district. On August 13, 2019, this complaint and motion for stay put was filed. One of the issues stated in the complaint involves Student’s placement and the termination of services by Dublin.
Student asserts that he is entitled to stay put pending resolution of the dispute stated in the complaint. Student asserts that stay put should consist of continued placement and services as described in his most recently agreed to individualized education program, referred to as an IEP, which Student asserts is the IEP dated February 21, 2019.
Dublin argues that Student is not entitled to stay put in the Dublin Unified School District because the responsible local education agency, often called an LEA, is the LEA of the conservator’s residence per California Education Code section 56041, subd (b).
Dublin states that, as a conserved adult, Student is a resident of Amador County, the LEA serving his conservator’s residence and, therefore, Dublin is no longer responsible for Student and the stay put motion must be denied.
APPLICABLE LAW
Until due process hearing procedures are complete, a special education student is entitled to remain in his or her then-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.” The Ninth Circuit Court of Appeal has defined “then-current educational placement” as “the educational setting in which the student is actually enrolled at the time the parents request a due process hearing to challenge a proposed change to the student’s educational placement. (N.E. by and through C.E. and P.E. v. Seattle School District (9th Cir. 2016) 842 F. 3d 1093, 1096 (N.E,).)
Typically, that has been acknowledged to be the student’s last implemented IEP. (L.M.
ex rel. Sam M. v. Capistrano Unified School District (9th Cir. 2009) 556 F. 3d 900, 902.)
Stay put is intended to maintain the status quo pending completion of a student’s challenge to his placement or any other issues raised in the request for due process hearing. (N.E, supra, 842 F. 3d 1093, 1097.) Stay put “functions as an ‘automatic’ preliminary injunction” in cases pursuant to the Individuals with Disabilities Education Act, or IDEA, by prohibiting changes to a student’s educational placement until the legal dispute is resolved. (A.D. ex rel. L.D. v. Hawaii Dept. of Education, (9th Cir.
2013) 727 F. 3d. 911, 914; citing Joshua A. v. Rocklin Unified Sch. Dist., (9th Cir. 2009) 559 F.3d 1036, 1037.) Because the injunction is automatic, a student who requests an administrative due process hearing is entitled to remain in his educational placement regardless of the strength of his case or the likelihood he will be harmed by a change in placement. (Ibid.)
DISCUSSION
While Dublin argues Student is a resident of the LEA of his conservator, it does not provide any legal authority stating that Student’s right to stay put has changed as a result of the establishment of the conservatorship. The determination as to Student’s residency is a question of fact that is appropriately addressed following receipt of evidence in a hearing. Student is entitled to stay put pursuant to the IDEA and California law, pending determination of the underlying issues. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).) Stay put placement and services are determined by reference to Student’s last agreed-upon and implemented IEP.
Here, Student’s last agreed-upon IEP, dated February 21, 2019, identifies the Dublin Unified School District’s community based transition program as the placement for Student. Student ‘s IEP provided for 300 minutes per day, five days per week, of specialized academic instruction in a separate classroom in a public integrated facility.
Sixty minutes per weeks of career awareness was embedded in the program and 15 minutes per month of speech consultation was provided to classroom staff by the district’s speech pathologist. The IEP also provided for extended school year services, for 270 minutes per day in a separate classroom in a public integrated facility. Door-to- door transportation services were included in the IEP as a related service.
ORDER
1. Student’s request for stay put is GRANTED.
2. During the stay put period, Student must be provided with:
a. 300 minutes per day, five days per week, of specialized academic
instruction in Dublin’s Transition Program that includes sixty minutes per week of career awareness embedded in the program;
b. 15 minutes per month of speech consultation provided to
classroom staff by Dublin’s speech pathologist;
c. Extended school year services for 270 minutes per day of instruction
in Dublin’s Transition Program;
d. Door-to-door transportation to and from the program.
IT IS SO ORDERED.
DATED: August 21, 2019 Penelope S. Pahl Administrative Law Judge Office of Administrative Hearings