California OAH special education order · September 27, 2019

Order Granting Motion for Stay Put

OAH Case No. 2019090860 · ALJ Tiffany Gilmartin

OAH granted Student's stay put motion for the Winston School because San Marcos agreed to implement the last IEP there, even though Student did not prove Winston was a comparable placement.

Granted Stay put

Summary

Student's last agreed-upon IEP placed Student at New Bridge School, a nonpublic school. Parents unilaterally moved Student to the Winston School, and New Bridge then said it could no longer meet Student's needs. Student asked that Winston be the stay put placement. San Marcos agreed to implement the April 26, 2018 IEP at Winston but argued Student had not shown Winston closely matched the prior placement. OAH found Student's evidence of comparability insufficient and made no finding on that question, but granted stay put because the law lets the parties agree on a placement during litigation, and they had.

Why it matters

When the stay put school is no longer available, the family must show the new school is materially and substantively similar to the old placement. A district's agreement to a placement can still secure stay put without that showing.

Key authority cited

  • 20 U.S.C. § 1415(j)
  • 34 C.F.R. § 300.518(a)
  • Ed. Code § 56505(d)
  • Cal. Code Regs., tit. 5, § 3042(a)
  • Johnson v. Special Educ. Hearing Office (9th Cir. 2002) 287 F.3d 1176
  • Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618

Topics

stay put nonpublic school unilateral placement comparable placement agreement of parties

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.

SAN MARCOS UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2019090860

ORDER GRANTING MOTION FOR STAY PUT

On September 23, 2019, Student filed a motion for stay put. Student’s last agreed upon and implemented individualized education program, called an IEP, was dated April 26, 2018. Student’s April 26, 2018 IEP placed at the New Bridge School, a non-public day school. The April 26, 2018 IEP included the following services: 240 minutes of specialized academic instruction daily; 60 minutes of weekly group speech and language services; and 30 minutes monthly of occupational therapy consultation.

All services were to be provided by a non-public school under contract with the local special education local plan area or San Marcos, and, included transportation to and from the non-public school.

Parents unilaterally placed Student at the Winston School on July 25, 2019. On July 29, 2019, New Bridge school notified Parents and San Marcos that New Bridge could no longer meet Student’s needs.

Student avers Student’s placement for stay put purposes is Winston since New Bridge is no longer available to Student. On September 26, 2019, San Marcos filed a response to Student’s motion. San Marcos agrees to implementing Student’s April 28, 2018 IEP at the Winston school; however, San Marcos disputes that Student sufficiently established Winston “as closely as possible, replicates” Student’s prior placement.

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).)

When a Student’s current school is no longer available, stay put is satisfied through a placement in a program that is materially and substantively similar to the former program. (Letter to Fischer (OESP 1994).) Should “’rigid adherence’ to the exact educational program become an ‘an impossibility,” … the school district must “provide educational services that approximate the student’s old [Individualized Education Program] as closely as possible.’” (Tindall v. Evansville-Vanderburgh School Corp., 2010 WL 557058 at *4 (S.D. Ind. Feb. 10, 2010.) The law does not require the placement be exact; however, the educational placement must be a “comparable placement.” (Johnson ex rel. Johnson v. Special Educ. Hearing Office (9th Cir. 2002) 287 F.3d 1176, 1182.)

DISCUSSION

San Marcos agreed to implementing Student’s April 26, 2018 IEP at Winston pending the outcome of the dispute. San Marcos, however, disputes that Student sufficiently demonstrated Winston replicates Student’s prior placement.

Student is entitled to a non-public school placement. Student argues for stay put purposes, Student’s placement should be at Winston pending the outcome of the dispute. Student’s argument is based on the April 26, 2018 IEP that placed Student at New Bridge school. Student’s placement at Winston was the result of a unilateral move by Parents. Student provided insufficient evidence Winston is a “comparable placement”

to Student’s previously agreed upon and implement IEP placement. This order makes no finding whether Winston is the school that “materially and substantively” resembles Student’s non-public placement in his April 26, 2018 IEP. However, the statute allows the parties to agree on a placement pending litigation, and they have done so here.

ORDER

1. Student’s Motion for Stay Put is granted.

IT IS SO ORDERED.

DATED: September 27, 2019 Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings