California OAH special education order · March 11, 2020
Order Denying Motion for Stay Put
OAH Case No. 2019090129 · ALJ Rita Defilippis
OAH denied Student's stay put motion for occupational therapy as unnecessary because Chaffey agreed in writing to provide the reduced nonpublic agency services Parent requested during the case.
This case went to decision
Student v. Chaffey Joint Union High School District: Chaffey Joint Union High must fund adapted physical education and assistive technology IEEs and maintain speech therapy; seven claims denied. (2020)
Summary
Student moved for stay put asking for two hours per week of direct, individual occupational therapy from a nonpublic agency. That was fewer hours than the last agreed-upon IEP, and Parent submitted a sworn declaration accepting the reduction. Chaffey responded that it agreed to provide those services, backed by a sworn declaration from its Director of Special Education. Because the law lets the parties agree to something other than the last IEP, OAH found no dispute to resolve and denied the motion as unnecessary.
Why it matters
If the district agrees in writing, with a sworn declaration, to provide the services a family wants during the case, OAH may decline to issue a stay put order because there is no dispute. Families may then have to rely on the district's sworn commitment rather than a formal order.
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
People named in the order
- Kelly Whelan, Director of Special Education, Chaffey Joint Union High School District
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.
CHAFFEY JOINT UNION HIGH SCHOOL DISTRICT.
OAH CASE NUMBER 2019090129
ORDER DENYING MOTION FOR STAY PUT
MARCH 11, 2020
On March 3, 2020, Student filed a motion for stay put regarding Student’s occupational therapy services. On March 6, Chaffney Joint Union High School District filed a response.
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
On March 3, 2020, Student filed a motion for stay put requesting two hours per week of direct, individual occupational therapy services provided by a nonpublic agency.
Student attached a copy of the last agreed upon and implement individualized education program, called IEP. Student also attached Parent’s sworn declaration agreeing to fewer hours than those documented in the last agreed upon IEP.
On March 6, Chaffney filed a response, agreeing to the requested reduced occupational therapy services. Chaffney attached the sworn declaration of Kelly Whelan, Director of Special Education, pledging to provide the requested occupational therapy services, in support of Chaffney’s response.
Until due process hearing procedures are complete, Student is entitled to receive his agreed upon and implemented services, unless the parties agree otherwise. In this case, the parties have agreed to occupational therapy services other than those stated in the last agreed upon IEP. Therefore, there is no dispute regarding Student’s occupational therapy services during the pendency of this due process complaint.
Accordingly, no order for stay put is necessary at this time and Student’s motion for stay put is denied.
IT IS SO ORDERED.
Rita Defilippis Administrative Law Judge Office of Administrative Hearings