California OAH special education order · September 17, 2020
Order Denying Motion for Stay Put Without Prejudice
OAH Case No. 2020080802 · ALJ Rita Defilippis
OAH denied Parents' unopposed stay put motion without prejudice because Student was over 18, and Parents showed no transfer of educational rights and did not attach the last agreed-upon IEP.
Summary
Parents filed a motion asking that their adult son remain in his last agreed-upon placement while the due process case was pending, and Sequoia Union High School District did not respond. OAH noted that Student turned 18 before the complaint was filed, which gave him the legal right to make his own educational decisions. Parents gave no legal authority or written statement from Student transferring those rights to them, and they did not attach the last consented-to IEP showing his placement. OAH denied the motion without prejudice, so Parents may refile it with the proper documents.
Why it matters
Once a student turns 18, parents filing on the student's behalf must show that educational rights were transferred to them. Even an unopposed stay put motion should attach the last agreed-upon and implemented IEP.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Ed. Code, § 56041.5
- 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.
SEQUOIA UNION HIGH SCHOOL DISTRICT.
OAH CASE NUMBER 2020080802
ORDER DENYING MOTION FOR STAY PUT WITHOUT
PREJUDICE
SEPTEMBER 17, 2020
On September 8, 2020, Parents filed a motion for stay put. No response was filed by Sequoia Union High School District.
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.)
However, if a student’s placement in a program was intended only to be a temporary placement, such placement does not become a student’s “stay put”
placement. (Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1, 7-8;
Leonard by Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558, 1563-64.)
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.)
A school closure for budgetary reasons requires a “comparable program” in another location for stay put. (See McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527, 1533; Knight by Knight v. District of Columbia (D.C. Cir. 1989) 877 F.2d 1025, 1028; Weil v. Board of Elementary & Secondary Educ. (5th Cir. 1991) 931 F.2d 1069, 1072-1073; see also Concerned Parents & Citizens for the Continuing Ed. at Malcolm X (PS 79) v. New York City Bd. of Ed. (2d Cir. 1980) 629 F.2d 751, 756; Tilton by Richards v. Jefferson County Bd. of Educ. (6th Cir. 1983) 705 F.2d 800, 805.)
DISCUSSION
In the present matter, Parents filed a due process complaint and a Motion for Stay Put on behalf of Student, their adult son. Student was 18 years of age before the filing of the due process complaint. Upon a student’s 18th birthday, a student has the legal authority to make their own educational decisions. (Ed. Code, § 56041.5.) Parents did not provide any legal authority or written statement from Student, transferring his educational rights to Parents, in their request for an order that Student remain in his last agreed upon placement. Additionally, Parents did not include a copy of Student’s last consented to individualized education program, called an IEP, showing Student’s last agreed upon placement.
The Motion for Stay Put is Denied, without prejudice. Nothing in this order prevents Parents from filing a motion for Stay Put with the proper documentation.
IT IS SO ORDERED.
Rita Defilippis Administrative Law Judge Office of Administrative Hearings