California OAH special education order · March 9, 2020
Order Denying Motion for Stay Put
OAH Case No. 2020020700 · ALJ Paul H. Kamoroff
OAH denied Student's stay put motion because Rialto showed it could not provide a bus aide to Student's nonpublic school, and its district behavior program closely replicated that placement.
Summary
Parent filed a motion asking that Student stay at Beacon Day School, the nonpublic school in her April 2019 IEP, while the case is pending. The motion had no supporting declarations, and Rialto opposed it with declarations. Rialto showed that after Student injured her last bus aide, it could not find another aide to take her to Beacon, and Beacon did not respond to requests for a contract that included a bus aide. OAH found it impossible to carry out the IEP at Beacon, and found that Rialto's PEER program, a full-time special day class for students with significant behavior needs that can supply the bus aide, replicated the placement as closely as possible.
Why it matters
A district can avoid stay put at the last agreed placement if it proves that placement has become impossible to implement and offers a close substitute. A stay put motion filed without declarations or evidence is at a serious disadvantage when the district responds with sworn facts.
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)
- 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:
RIALTO UNIFIED SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.
OAH CASE NUMBER 2020020700
ORDER DENYING MOTION FOR STAY PUT
MARCH 9, 2020
On February 19, 2020, Parent on behalf of Student filed a motion for stay put with the Office of Administrative Hearings, called OAH. Student’s request failed to include declarations or attachments in support of the motion. On February 28, 2020, Rialto Unified School District filed an opposition with accompanying declarations.
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).) For example, when it has become impossible to implement a placement, the stay-put provision permits the local educational agency to provide the student 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
Rialto does not dispute that Student is entitled to stay in her last agreed upon educational placement during the pendency of this matter. Rather, Rialto asserts that it has become impossible to implement Student’s IEP at the last agreed upon placement and that it has offered a comparable educational placement.
Student’s operative IEP of April 2019 placed Student at the Beacon Day School in La Palma, California, a nonpublic school for students with significant behavior problems.
Student’s disability and IEP required that she receive a bus transport aide. Student injured her last bus aide and, despite several attempts, Rialto has been unable to provide Student a bus aide to Beacon. Additionally, Beacon has not responded to Rialto’s requests to generate a contract that includes a bus aide. It has therefore become impossible to implement Student’s IEP at Beacon.
Rialto identified a comparable educational placement, a school district behavior program entitled Pathway for Educational Enrichment and Reintegration, called PEER, that is capable of implementing Student’s IEP. Like Beacon, PEER offers full time specialized academic instruction in a special day class for students with significant behavior problems. In addition, PEER can provide Student the bus aide called for in her IEP and necessary for Student to access her educational placement.
Consequently, Rialto has shown that it is impossible to implement Student’s IEP at Beacon. Based upon this changed circumstance, Beacon has offered a placement that replicates Beacon as closely as possible and that can implement Student’s IEP, thereby meeting stay put requirements. Therefore, Student’s motion for stay put is denied.
ORDER
Student’s motion for stay put is denied.
IT IS SO ORDERED.
Paul H Kamoroff Administrative Law Judge Office of Administrative Hearings