California OAH special education order · November 17, 2020
Order Granting in Part and Denying in Part Motion for Stay Put
OAH Case No. 2020100380 · ALJ Marlo Nisperos
OAH named Lindbergh Schweitzer Elementary as Student's stay put placement because the last agreed-upon and implemented June 2020 IEP listed it, but denied future transportation as not yet ripe.
Summary
Student asked OAH to order stay put at Lindbergh Schweitzer Elementary, the school listed in her June 2, 2020 IEP. Student also asked that San Diego implement the IEP as fully as possible during distance learning and provide round-trip transportation if in-person instruction resumed. San Diego opposed. It argued it never meant to offer that school site, Student had never attended it, and the program was full. OAH found the June 2020 IEP was agreed upon and implemented (Student attended extended school year at Alcott as the IEP stated) and that it listed Lindbergh Schweitzer for 2020-2021, so it granted that placement and the distance learning request. OAH said whether the school was truly offered must wait for a full hearing, and it denied the transportation request without prejudice because it depended on a future event.
Why it matters
Stay put follows what the written, implemented IEP actually says. A district cannot avoid a school site listed in the IEP by claiming it did not intend to offer it, at least not before a full hearing. Requests that depend on future events, like transportation once in-person school resumes, may be denied as premature and can be raised again later.
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 2020100380
ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR STAY PUT
NOVEMBER 17, 2020
On November 3, 2020, Student filed a motion for stay put. On November 6, 2020, San Diego Unified School District filed an opposition.
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).)
DISCUSSION
The parties dispute which program should be considered stay put for Student during the pendency of this due process matter. Student asserts that her placement should be at Lindbergh Schweitzer Elementary School. Student argues that this is the program listed in the last agreed upon and implemented individualized education program, called an IEP, dated June 2, 2020. Student also requests OAH order San Diego to implement the IEP to the maximum extent possible while on distance learning and provide round-trip transportation pursuant to the IEP if San Diego returns to in-person instruction.
San Diego contends it did not intend to offer Student a specific school site location as part of a free appropriate public education. San Diego argues Student has never been enrolled or received services at that school, the program is at capacity, and Student’s IEP indicates that she would be receiving home hospital instruction at this time. Based on the forgoing, San Diego claims Lindbergh Schweitzer Elementary cannot be Student’s stay put placement. San Diego asserts that Parent applied to Alcott school in the fall of 2019, which is not Student’s assigned school of residence, and was accepted there for the 2020-2021 school year. In Student’s case, San Diego argues, the IEP can be implemented at her school of residence and Cadman, the school nearest to Alcott, where Student was granted enrollment.
Both parties attached similar, not identical, copies of a June 2, 2020, IEP. Both copies, however, reflect Student would attend Lindbergh Schweitzer Elementary for kindergarten beginning June 10, 2020 through June 1, 2021. The IEP also shows Student would attend Alcott Elementary for extended school year from June 2, 2020 to June 9,
2020. The parties agree that Student’s school of attendance was Alcott at the time of
the IEP team meeting.
Student’s last agreed upon and implemented IEP of June 2, 2020 indicated an offer of placement at Lindbergh Schweitzer Elementary for the 2020-2021 school year.
This IEP was implemented as Student attended Alcott Elementary from June 2, 2020 to June 9, 2020 as indicated on the IEP. A determination of whether Lindbergh was not the offered placement based on discussions at the IEP meeting or subsequent communications with Parent must be resolved after a full evidentiary hearing.
Student requests as stay put to implement her IEP to the maximum extent possible during distance learning. San Diego does not object to Student’s request to continue delivering services during distance learning. Accordingly, Student’s request to implement her IEP to the maximum extent possible is granted. However, Student’s request for San Diego to provide transportation if in-person instruction resumes is predicated on a future occurrence and is not ripe. As a result, Student’s request for San Diego to provide round-trip transportation if she returns to in-person instruction prior to the resolution of the due process complaint is denied without prejudice. For the foregoing reasons, Student’s request that Lindbergh Schweitzer Elementary be the stay put placement is granted.
ORDER
1. Student’s request for stay put as to placement at Lindbergh Schweitzer
Elementary is granted.
2. Student’s request for stay put to implement the IEP of June 2, 2020 to the
maximum extent possible during distance learning is granted.
3. Student’s request for stay put as to round-trip transportation to school
from her home should in-person instruction resume pursuant to the IEP of June 2, 2020 is denied without prejudice.
IT IS SO ORDERED.
{{sig1_es_:signer1:signature}} Marlo Nisperos Administrative Law Judge Office of Administrative Hearings