California OAH special education order · June 1, 2021
Order Denying Motion for Stay Put
OAH Case No. 2021050766, 2021020555 · ALJ Linda Johnson
OAH denied Student's stay put motion because San Diego Unified agreed Devereux was the stay put placement and was still funding it, so there was no real dispute to resolve.
Summary
Student asked OAH to order San Diego Unified to keep funding his placement at Devereux Residential Treatment Facility in Texas while the consolidated cases were pending. San Diego Unified opposed. It said that although it had proposed a change of placement, it agreed stay put included Devereux and was continuing to implement the last agreed-upon IEP, and it backed this with a sworn declaration from Student's case manager. OAH denied the motion as unnecessary because Student did not claim the District was refusing to implement stay put or that there was any dispute over what stay put means. OAH noted that a disagreement about what a free appropriate public education requires is not the same as a dispute about stay put.
Why it matters
A stay put motion needs an actual dispute, such as a district refusing to keep the current placement or disagreeing about what it includes. If the district is already maintaining the placement, OAH may deny the motion, though families can refile with specifics if a real dispute later arises.
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 CONSOLIDATED MATTERS OF:
SAN DIEGO UNIFIED SCHOOL DISTRICT,
and
PARENT ON BEHALF OF STUDENT,
OAH CASE NUMBER 2021050766
OAH CASE NUMBER 2021020555
ORDER DENYING MOTION FOR STAY PUT
JUNE 1, 2021
On May 26, 2021, Student filed a motion for stay put. On May 28, 2021, San Diego Unified School District filed an opposition on the grounds that an order for stay put was not necessary because it continued to implement Student’s last agreed upon individualized education program. Student filed a response to San Diego Unified’s opposition on June 1, 2021.
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
Student requests a stay put order that San Diego Unified to continue to fund his placement at Devereux Residential Treatment Facility in Texas. San Diego Unified argues that a stay put order is not necessary because although it proposed a change of placement, it continues to implement Student’s last agreed upon and implemented IEP.
Student has not alleged that a dispute about what constitutes stay put exists.
San Diego Unified placed Student at Devereux in the fall of 2019. Student argues his last agreed upon IEP was the October 15, 2020 IEP that offered a residential treatment facility placement at Devereux. Although San Diego Unified alleges Student’s last agreed upon IEP includes the December 8, 2020 IEP amendment goals, it agrees that Student’s stay put includes placement at Devereux. San Diego Unified submitted a sworn declaration from Student’s case manager that it continues to implement Student’s placement at Devereux.
Student is entitled to remain at Devereux as the placement in his last agreed upon and implemented IEP and an order for stay put is not necessary. Student has not alleged that a dispute about what constitutes stay put exists or that San Diego Unified is refusing to implement Student’s last agreed upon and implemented IEP. If a dispute about stay put exists, Student may file a request for stay put with more specificity as to the nature of the dispute and the terms of stay put. A dispute about what constitutes a free appropriate public education does not necessarily mean there is a dispute about stay put. Therefore, the motion for stay put is denied.
ORDER
Student’s Motion for Stay Put is denied.
Linda Johnson Administrative Law Judge Office of Administrative Hearings