California OAH special education order · September 18, 2020
Order Denying Motion for Stay Put
OAH Case No. 2020080753 · ALJ Adrienne L. Krikorian
OAH denied Student's stay put motion without prejudice because Student offered no sworn declaration or authenticated evidence clearly identifying the last agreed-upon and implemented IEP.
Summary
Student moved for stay put and attached an unauthenticated May 13, 2019 IEP plus several unauthenticated assessment reports and other documents, with no sworn declaration. San Diego opposed with a sworn declaration and an April 13, 2020 distance learning IEP that it said Parents signed on May 6, 2020. OAH denied the motion without prejudice because Student's evidence did not clearly establish the last agreed-upon and implemented IEP. Student may refile with a sworn declaration and individually identified, authenticated exhibits, and San Diego will have three business days to respond.
Why it matters
A stay put motion needs a sworn declaration and authenticated copies of the IEP claimed to be the last agreed-upon and implemented one, with each exhibit identified and explained. Families should also account for later agreed IEPs, such as distance learning IEPs, which the district may argue are the current placement.
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
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.
SAN DIEGO UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020080753
ORDER DENYING MOTION FOR STAY PUT
SEPTEMBER 18, 2020
Student filed a motion for stay put on September 11, 2020. The motion was not supported by a declaration under penalty of perjury but included an unauthenticated copy of Student’s May 13, 2019 individualized education program, referred to as IEP.
The motion also included multiple unauthenticated assessment reports and other documents ranging in date from February through May 2020, without identification or explanation of the relevance of those documents.
San Diego Unified School District filed an opposition to the motion on September 16, 2020. San Diego’s opposition was supported by a sworn declaration, and a document that purported to be Student’s April 13, 2020 distance learning IEP, which San Diego asserts was developed by Student’s IEP team and signed by Parents on May 6, 2020. Student filed a response to San Diego’s opposition on September 17, 2020.
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).)
Student did not support her motion with evidence that unambiguously defines what she contends is Student’s last agreed upon and implemented IEP. Therefore, the motion for stay put is denied without prejudice. Student may refile her motion, providing that she supports her motion with a sworn declaration, including an authenticated copy of what Student contends is her last agreed upon and implemented IEP. Any exhibits Student offers in support of the motion shall be individually identified and authenticated. San Diego shall have three business days to respond.
IT IS SO ORDERED.
Adrienne L. Krikorian Administrative Law Judge Office of Administrative Hearings