California OAH special education order · September 12, 2019
Order Granting Motion for Stay Put
OAH Case No. 2019090085 · ALJ Tiffany Gilmartin
OAH granted Student's stay put motion, keeping placement at California School for the Deaf and requiring Oakley Union to keep providing nursing, because Parent never consented to the June 2019 nursing offer.
Summary
Student asked OAH for a stay put order. California School for the Deaf agreed it was the stay put placement but said Oakley Union remained responsible for nursing. Oakley Union argued it had no continuing nursing obligation. OAH found that Parent signed the June 5, 2019 IEP but specifically excluded the nursing services. That made the June 7, 2018 IEP, which named Oakley Union as the nursing provider, the last agreed-upon and implemented IEP for nursing, so Oakley Union must continue providing nursing during the case.
Why it matters
Stay put can be split by service. When a parent consents to part of a new IEP but excludes one service, the last agreed-upon IEP still controls that service and who must provide it. A district responsible under the prior IEP cannot walk away from that service during the dispute.
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 MATTER OF:
PARENT ON BEHALF OF STUDENT,
v.
OAKLEY UNION ELEMENTARY SCHOOL DISTRICT AND
CALIFORNIA SCHOOL FOR THE DEAF, FREMONT.
OAH CASE NUMBER 2019090085
ORDER GRANTING MOTION FOR STAY PUT
On September 4, 2019, Student filed a motion for stay put. On September 5, 2019, California School for the Deaf filed a response, arguing Student’s stay put placement is the California School for the Deaf; however, Oakley Union is responsible for providing nursing services for Student. On September 6, 2019, Oakley Union responded, arguing California School for the Deaf is the proper stay put placement and Oakley Union has no continuing obligation to provide nursing services for Student.
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 was placed at the California School for the Deaf, Fremont on June 7, 2018 via an IEP developed jointly between Oakley and California School for the Deaf.
California School for the Deaf agreed to provide all services except for nursing. Nursing services were to be provided by a contract from Oakley Union. Parents consented to the IEP on June 7, 2018. For Student’s June 5, 2019 IEP, California School for the Deaf was offered as placement and agreed to provide all services with the exception of nursing.
Parent signed the IEP on June 5, 2019; however, specifically excluded agreeing to the offered nursing services.
The last agreed upon and implemented IEP for placement and all services, excluding nursing services, is the California School for the Deaf. Student is entitled to remain in a placement provided by the California School for the Deaf. Since Parents explicitly did not consent to nursing services on the June 5, 2019 IEP, the last consented to and implemented IEP for nursing purposes is the June 7, 2018 IEP, which designates Oakley Union as the responsible party for nursing services. Thus, for the pendency of this action, Student’s stay put placement and related services are to be provided through California School for the Deaf, except for nursing services which are to be provided by Oakley Union.
.
ORDER
1. California School for the Deaf is Student’s stay put placement.
2. Oakley Union will provide Student’s nursing services.
IT IS SO ORDERED.
DATED: September 12, 2019 Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings