California OAH special education order · March 10, 2021
Order Granting Motion for Stay Put
OAH Case No. 2021030159 · ALJ Penelope S. Pahl
OAH granted Student's stay put motion and ordered San Diego to quickly secure a comparable residential placement, because Student's out-of-state residential treatment center ended services and the status quo no longer existed.
This case went to decision
Student v. San Diego Unified School District: San Diego Unified must reimburse $25,705 and later costs for in-home behavior support after denying parent participation and stay put. (2021)
Summary
Student, who turned 22 but remained eligible for services through the end of the fiscal year, asked for stay put after his out-of-state residential treatment center ended his services on his birthday. Student sought reimbursement for providers Parent could hire to serve him in a home Parents bought in the district. San Diego did not dispute his right to stay put but proposed only speech, counseling, and occupational therapy at a separate facility while it searched for a new residential center. OAH found the situation similar to a school closure and ordered San Diego to provide a comparable residential placement at a certified nonpublic school that replicates the prior center's services as closely as possible, along with all services and accommodations in the March 9, 2020 IEP.
Why it matters
When a student's stay put program closes or ends services, the district must provide a comparable placement that mirrors the last agreed IEP as closely as possible. Reduced interim services do not meet that duty. The ruling also shows that students who turn 22 midyear can keep stay put protections through the end of the fiscal year.
Key authority cited
- 20 U.S.C. § 1415(j)
- Ed. Code § 56505(d)
- Ed. Code § 56026(c)(4)(A)
- Cal. Code Regs., tit. 5, § 3042(a)
- Ms. S. v. Vashon Island Sch. 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.
SAN DIEGO UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021030159
ORDER GRANTING MOTION FOR STAY PUT
MARCH 10, 2021
On March 1, 2021, Parent on behalf of Student filed a request for due process hearing with the Office of Administrative Hearings, often called OAH, naming San Diego Unified School District as respondent. That same day, Student filed a Motion for Stay Put. On March 8, 2021, District filed an opposition to the motion. Student filed a reply to San Diego’s opposition on March 9, 2021.
Student turns 22 years old on March 10, 2021. His current, out of state residential treatment facility, often called an RTC, notified San Diego that it would be terminating Student’s services as of his 22nd birthday. California continues special education services through the end of the school’s fiscal year for students who turn 22 years old between January and June of the school year, if the student has not already graduated from high school or completed proficiency standards. (Ed. Code § 56026(c)(4)(A)). Student meets the criteria to continue receiving Individualized Education Plan, or IEP, services through the end of San Diego’s 2020-2021 fiscal year.
Student seeks Stay Put services in the form of San Diego’s “immediate reimbursement for any provider Parent is able to contract with to provide ‘stay put’ services.” Parents asks that those services be provided in a separate home Parents purchased for Student in the San Diego district. Student proposes academic and related services to be provided by non-public agencies, called NPAs and in home residential support.
San Diego does not dispute Student’s right to stay put. It has been unable to secure replacement RTC services for Student. Therefore, it proposes the provision of speech and language, counseling for both Student and Parents, and occupational therapy services at a “Separate school or Special Education Center or facility,” while continuing to search for an available RTC that will accept placement of Student for the last few months of his school year.
Student’s last agreed upon and implemented IEP, dated March 9, 2020, offered the following services:
• Specialized Academic Instruction or SAI in a non-public residential school
outside California for 345 minutes per day with an instructional aide assisting student for 345 minutes during the school day.
• Transportation to and from school, including a bus monitor for daily
transportation to the school site;
• Counseling, 30 minutes per week
• Speech and Language services 240 minutes per month
• Occupational therapy 30 minutes per month classroom consultation;
• Parental education and/or counseling 60 minutes per month
• Residential mental health services, 1440 minutes per day
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 prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)
Although Stay Put is generally an automatic injunction, there are exceptions to the rule when the services or placement previously offered to Student become unavailable, such as when a program terminates services to a particular student. (S.A. ex rel. L.A. v. Exeter Union School District, 2010 WL 4942539, No. CV F 10-347 LJO SMS, Nov. 24, 2010, p. 18; see also, Tilton v. Jefferson Co. Bd. Of Educ. (6th Cir. 1983) 705 F 2d 800, 805 (school closure); Ms. S. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115 superseded by statute on other grounds, 20 U.S.C. §1414(d)(1)(B).) (transfer from one Local Education Agency to another) Courts have recognized that, because of changing circumstances, the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S. v. Vashon Island Sch. Dist. 337 F.3d at pp.1133-35.)
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).)
The situation is analogous to a school closure. It is undisputed that San Diego is unable to continue to provide services through Student’s prior RTC. Both parties have acknowledged that services were terminated effective March 10, 2021. Stay Put is designed to preserve the status quo. However, when the status quo no longer exists, adjustments must be made. (Ms. S. v. Vashon Island Sch. Dist. 337 F.3d at pp.1133.) San Diego does not argue that it’s proposal for interim services constitutes a “comparable”
placement. As Student’s prior RTC is no longer an available option for Student’s placement, San Diego must provide a comparable placement while conducting its search for a replacement RTC.
ORDER
1. Student’s motion for stay put is GRANTED. However, due to the
unavailability of Genesee as a placement, Student’s stay put is as follows:
a) residential placement in a certified non-public, non-sectarian school which provides special education and related services that, as closely as possible, replicate the services of Student’s last attended, out of state RTC, unless the parties otherwise agree.
b) IEP services, including:
• Specialized Academic Instruction or SAI in a non-public residential school
outside California for 345 minutes per day with an instructional aide assisting student for 345 minutes during the school day.
• Transportation to and from school, including a bus monitor for daily
transportation to the school site;
• Counseling, 30 minutes per week;
• Speech and Language services 240 minutes per month;
• Occupational therapy 30 minutes per month classroom consultation;
• Parental education and/or counseling 60 minutes per month;
• Residential mental health services, 1440 minutes per day
• All accommodations provided for in Student’s March 9, 2020 IEP unless
otherwise agreed by the parties.
2. In light of the urgent circumstances of this case, San Diego is ordered to
expeditiously secure a comparable placement so that every effort is made to avoid an interruption in Student’s education.
IT IS SO ORDERED.
Penelope S. Pahl Administrative Law Judge Office of Administrative Hearings