California OAH special education order · September 4, 2020
Order Denying Motion for Stay Put
OAH Case No. 2020090004 · ALJ Peter Paul Castillo
OAH denied Student's stay put motion because Student did not identify the last agreed upon and implemented educational program and did not attach a copy of the IEP.
Summary
Student filed a motion for stay put, and Poway Unified School District opposed it. OAH explained that stay put protects the last agreed upon and implemented IEP placement while a dispute is pending. OAH denied the motion because the stay put request form did not identify that program and Student did not attach a copy of the IEP.
Why it matters
A stay put request must clearly identify the last agreed upon and implemented IEP and include a copy of it. Without that proof, OAH will deny the motion without reaching the merits.
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
- N.D. v. Hawaii Dept. of Educ. (9th Cir. 2010) 600 F.3d 1104
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.
POWAY UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020090004
ORDER DENYING MOTION FOR STAY PUT
SEPTEMBER 04, 2020
On August 31, 2020, Student filed a motion for stay put. On September 4, 2020, Poway Unified School 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.)
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).)
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.) “Hawaii's teacher furloughs and concurrent shut down of public schools is not a change in the educational placement of disabled children.” N.D. ex rel. parents acting as guardians ad litem v. Hawaii Dept. of Educ. (9th Cir. 2010) 600 F.3d 1104, 1116
DISCUSSION
Student failed to identify Student’s last agreed upon and implemented educational program in the form Stay Put request, and did not include a copy of Student’s IEP with the motion. Accordingly, Student’s Motion for Stay is denied.
ORDER
Student’s Motion for Stay Put is denied.
IT IS SO ORDERED.
Peter Paul Castillo Presiding Administrative Law Judge Office of Administrative Hearings