California OAH special education order · November 12, 2019
Order Granting Motion for Stay Put
OAH Case No. 2019110182 · ALJ Tiffany Gilmartin
OAH granted Student's stay put motion for 1,612 weekly minutes of intensive individual behavior services under the last agreed-upon IEP, rejecting Gilroy's mootness argument but denying Student's request for a non-public school aide.
Summary
Student asked OAH to order stay put of 1,612 weekly minutes of intensive individual behavior aide services, or alternatively a non-public school aide. Gilroy opposed and argued the motion was moot because it was already providing the services. OAH found that saying the services were being provided did not settle Student's stay put placement, and it set stay put as the 1,612 weekly minutes in the March 1, 2018 IEP. OAH denied the request for a non-public school aide because Student cited no law supporting it and the IEP did not specify aide qualifications.
Why it matters
A district's claim that it is already providing services does not make a stay put motion moot, so families can still get a formal stay put order. Stay put will not be used to challenge an aide's qualifications when the IEP does not specify any.
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
- Anna Pulido, Director of student services, Gilroy Unified School District (declarant)
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.
GILROY UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2019110182
ORDER GRANTING MOTION FOR STAY PUT
On November 4, 2019, Student filed a motion for stay put. On November 8, 2019 District filed an opposition to the motion.
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
In the instant matter, Student alleges he is entitled to 1,612 minutes of intensive individual services per week by a trained behavior aide. In the alternative, Student alleges he is entitled to a non-public school aide. Student’s March 1, 2018 individualized education program, which Parents consented to on June 7, 2018, offered Student 1,612 minutes of intensive individual services to provide behavioral support. Gilroy asserts it has provided Student 1,612 minutes of one-to-one aide services per week in accordance with the March 1, 2018 IEP. Gilroy argues, Student’s motion is moot due to the service being currently provided. Gilroy provide a sworn statement from Anna Pulido, director of student services, in support of its position that Student is currently receiving the intensive individual services as offered in his IEP. Gilroy’s prayer to dismiss Student’s motion as moot leaves unresolved the issue of Student’s stay put determination for this particular issue. Thus, Gilroy’s request to deny Student’s stay put motion is denied. The last consented to and implemented IEP is the March 1, 2018 IEP, and based on that IEP, for the pendency of this matter, Student’s stay put placement is intensive individual services for 1,612 minutes per week.
Student further puts at issue the specific qualifications of the aide Gilroy is currently providing. As a remedy for the deficiencies Student alleges in the aide, Student requests Gilroy fund an aide from a non-public school. Student provided no law to support such a request. Further, as no qualifications were specified in the IEP, a stay put motion is not the appropriate vehicle for Student to challenge the qualifications of the aide. Thus, Student’s alternative request for a non-public school aide is denied.
ORDER
Student’s stay put motion is granted.
Student’s stay put placement is 1,612 weekly minutes of intensive individual services to provide behavioral support.
IT IS SO ORDERED.
DATED: November 12, 2019 Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings