California OAH special education order · November 5, 2020
Order Denying Motion for Stay Put
OAH Case No. 2020100748 · ALJ Tara Doss
OAH denied Student's stay put motion seeking in-home behavior intervention services during COVID-19 closures because Culver City was implementing the last agreed-upon IEP through distance learning.
Summary
Student asked OAH to order Culver City to provide the behavior intervention services from the April 13, 2020 IEP in Student's home, arguing distance learning was not comparable to the last agreed-upon program. Culver City opposed. It argued that Parents had consented to distance learning and that in-person services would endanger health and safety during COVID-19. OAH found that the April 13, 2020 IEP called for services in a regular classroom, not at home, and that Culver City was implementing it through distance learning under the Governor's executive order and state guidance. Because Student was seeking a change in how services were delivered, OAH denied the motion.
Why it matters
Stay put protects the program in the last agreed-upon IEP, not a new way of delivering services, so families seeking in-home services during closures may need to pursue that through the hearing rather than a stay put motion. Consenting to a distance-learning IEP amendment can weaken a later argument that distance learning is not comparable.
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)
- Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
- 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.
CULVER CITY UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020100748
ORDER DENYING MOTION FOR STAY PUT
NOVEMBER 5, 2020
On October 23, 2020, Student filed a Request for Due Process Hearing, with the Office of Administrative Hearings, naming Culver City Unified School District. Also, on October 23, 2020, Student filed a Motion for Stay Put on the grounds that Culver City’s distance learning program is not comparable to the program in Student’s last agreed upon and implemented individualized education program, called an IEP. Specifically, Student requests stay put for the behavior intervention implementation services in Student’s April 13, 2020 IEP, and seeks an order that Culver City must provide those services in Student’s home. Student attached sworn declarations from Parents and other supporting documentation, including the April 13, 2020 IEP.
On October 28, 2020, Culver City filed an opposition to Student’s motion on the grounds that Parents consented to Student’s services being provided in the distance learning setting in the April 13, 2020 IEP, and that distance learning is Student’s stay put until such time that it is safe to provide in-person learning. Culver City further argued in-person services cannot be provided to Student because its schools are closed and in- person services would endanger the health and safety of its staff and Student, due to the Covid-19 health pandemic.
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 IEP placement before the dispute arises. (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 the 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).) However, courts have recognized 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, 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.)
On March 4, 2020, Governor Newsom declared a state of emergency in California due to COVID-19. On March 13, 2020, Governor Newsom issued Executive Order N-26- 20 to direct school district operations during public health related school closures.
Executive Order N-26-20 directed the California Department of Education and the Health and Human Services Agency to jointly develop guidance to ensure students with disabilities continued to receive a free appropriate public education consistent with their
IEP.
On April 9, 2020, the California Department of Education implemented Executive Order N-26-20 by issuing Special Education Guidance for COVID-19. The guidance did not specifically address the stay put provision but stated an “IEP that was in effect at the time of physical school closure remains in effect, and [school districts] should, to the greatest extent possible, continue to provide the services called for in [the IEP] in alternative ways.
DISCUSSION
On March 13, 2020, Culver City closed its schools due to COVID-19 and moved to distance learning for all students. On April 13, 2020 Culver City held Student’s annual IEP team meeting. The IEP offered Student placement in a general education classroom with several related services, including behavior intervention services in the form of a one-to-one aide. The IEP stated the services would be provided in a regular classroom.
The IEP does not offer in-home behavior intervention services. Parents consented to the IEP on June 8, 2020.
On September 2, 2020, Culver City held an amendment IEP team meeting.
Parents requested that Student’s behavior intervention services be provided at home.
Culver City denied Parents’ request due to COVID-19. The IEP stated Student’s education and related services would be implemented through distance learning to the greatest extent possible. No changes were made to Student’s special education program. On September 15, 2020, Parents consented to Culver City implementing the
IEP.
The parties agree that Student’s April 13, 2020 IEP is the last agreed upon and implemented IEP that contains a complete offer of special education and related services. Culver City is implementing this IEP, including the behavior intervention services, through distance learning in compliance with Governor Newsom’s executive order and guidance from the California Department of Education.
Because Student seeks a modification of the delivery method of the behavior intervention services in the April 13, 2020 IEP, and Culver City is implementing the IEP, Student’s Motion for Stay Put is denied.
IT IS SO ORDERED.
{{sig1_es_:signer1:signature}} Tara Doss Administrative Law Judge Office of Administrative Hearings