California OAH special education order · December 4, 2019
Order Denying Motion for Stay Put
OAH Case No. 2019110958 · ALJ Jennifer Kelly
OAH denied Student's stay put motion to remain at Creative Learning Center because the nonpublic school ended its contract with proper 20-day notice, so Fremont must instead find a comparable NPS.
Summary
Student asked OAH to order stay put at Creative Learning Center, the nonpublic school named under the last agreed-upon and implemented IEP of March 4, 2019. Fremont opposed. It argued the school had ended Student's placement with 20 days' written notice and that Fremont planned to place Student at a comparable NPS. OAH denied the motion because the school, a private provider, chose to stop serving Student under Education Code section 56366, and nothing requires an NPS to keep a student without parent consent to the termination. Fremont must find a comparable NPS, but OAH did not decide whether the alternative schools offered are suitable.
Why it matters
Stay put cannot force a nonpublic school to keep a student after it properly ends its contract. The fight then moves to whether the district's replacement placement truly matches the last agreed IEP. Parents should take an active part in choosing that replacement school and keep records of their input.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code § 56505(d)
- Ed. Code § 56366(a)(4)
- Ms. S. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
- Van Scoy v. San Luis Coastal Unified School Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083
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.
FREMONT UNION HIGH SCHOOL DISTRICT.
OAH CASE NUMBER 2019110958
ORDER DENYING MOTION FOR STAY PUT
On November 26, 2019, Student filed a motion for stay put. On December 3, 2019, Fremont Union High School District filed an opposition on the ground that the non-public school terminated Student’s placement with 20 days’ written notice and Fremont intends to place Student at a comparable non-public educational program pursuant to the last agreed upon and implemented individualized education program dated March 4, 2019. On December 4, 2019, Student filed a reply brief.
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).) Courts have recognized, however, that the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S. ex rel. G.
v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35, superseded by statute on other grounds, 20 U.S.C. § 1414(d)(1)(B).) When a student advances from grade to grade, the stay-put provision entitles the student to receive a placement that, as closely as possible, replicates the placement that existed at the time the dispute arose, taking into account the changed circumstances. (R.F. Frankel v. Delano Union School District, (E.D. Cal 2016) 224 F. Supp. 3d, 979, citing, Van Scoy ex rel. Van Scoy v.
San Luis Coastal Unified School Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083, 1086.)
DISCUSSION
The parties do not dispute that the March 4, 2019, IEP is the last agreed upon and implemented IEP. Student contends that the parties have not agreed upon an appropriate resolution of Student’s educational program after the recent IEP team meetings on October 16, 2019, and December 2, 2019, to discuss Student’s placement.
The parties dispute whether the March 4, 2019 IEP mandates that Student remain at Creative Learning Center, a certified non-public school, also known as a NPS, despite Creative Learning Center providing Fremont 20 days’ written notice that Student can no longer continue at its program past December 20, 2019.
The March 4, 2019 IEP provides that Student requires a placement at an NPS.
Fremont, after the IEP team discussion, offered Student Creative Learning Center to provide him with a free appropriate public education. However, in this case, Fremont is not seeking to change Student’s placement. Instead, Creative Learning Center, as a private service provider, has made the decision that it can no longer meet Student’s needs. Fremont has confirmed its obligation under the March 4, 2019 IEP to place Student at a certified NPS and is seeking an alternative, comparable NPS for Student to attend. Fremont has sought Parents’ input on the NPS placement. In response to Parents’ requests, Fremont submitted referrals to Wings Learnings Center and Achieve Kids NPS.
Student argues that Creative Learning Center remains Student’s stay put placement even though Creative Learning Center terminated its contract to serve Student with 20 days’ notice as provided in Education Code section 56366, subdivision (a)(4). Further, nothing in Education Code section 56366 or the applicable stay put statute and regulations provide that a certified NPS must retain a student if it terminates a contract to service a student with the proper notice if the parent does not consent to the private service provider’s contract termination.
Because Student’s placement at Creative Learning Center is no longer available, Fremont has the legal obligation to find a comparable educational program for Student to attend. Therefore, Student’s motion for stay put for him to remain at Creative Learning Center during the pendency of this dispute is denied because Creative Learning Center is no longer available as a placement for Student. This order does not address the suitability of the alternative, comparable NPS offered by Fremont for Student’s placement after December 20, 2019.
ORDER
Student’s motion for stay put is denied.
IT IS SO ORDERED.
DATED: December 04, 2019 Jennifer Kelly Administrative Law Judge Office of Administrative Hearings