California OAH special education order · August 13, 2021
Order Denying Motion for Stay Put
OAH Case No. 2021070212 · ALJ Deborah Myers-Cregar
OAH denied Student's stay put motion because the non-public school placement at Foundations was agreed to only as a temporary placement, so stay put remains District's program at Bernardo Elementary.
Summary
Student asked OAH to treat a temporary placement at Foundations, a non-public school, as Student's stay put placement. District opposed. The order found that the IEP team agreed to Foundations only as a temporary 30-day trial, later extended through the 2021 extended school year to help Student transition back to District's program, and that the IEPs never offered Foundations as a stay put placement. Student's stay put is the District program at Bernardo Elementary in the February 18, 2020 IEP and June 1, 2020 amendment, which Parent signed.
Why it matters
A trial or temporary placement a district agrees to, even one extended over several months, usually will not become stay put. Parents who want a new placement protected during a dispute should get it written into a signed IEP as the student's ongoing placement, not as a trial.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
- Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1
- Leonard by Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558
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:
PARENTS ON BEHALF OF STUDENT,
v.
ESCONDIDO UNION SCHOOL DISTRICT.
OAH CASE NUMBER 2021070212
ORDER DENYING MOTION FOR STAY PUT
AUGUST 13, 2021
On August 9, 2021, Student filed a motion for stay put. On August 12, 2021, 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.)
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.)
DISCUSSION
Here, Student seeks an order determining that a temporary placement at a non-public school should be deemed a stay-put placement. Student’s placement at Escondido Union School District’s Bernardo Elementary School was agreed upon at the February 18, 2020 IEP and June 1, 2020 IEP amendment. At Student’s December 4, 2020 IEP team meeting, Parents requested a trial period at a non-public school, and Escondido Union School District agreed to an observation. At the January 7, 2021 and January 15, 2021 IEP team meetings, the team agreed to a temporary 30-day placement at Foundations, the non-public school Parent requested. At the April 13, 2021 IEP team meeting, Student’s progress at Foundations was discussed. Escondido Union School District believed their own program at the Structured Communication Social Behavioral Program was appropriate as Foundations’ non-public school was a more restrictive placement. The April 13, 2021 IEP team meeting was continued to June 9, 2021 to reconvene and continue the diagnostic review. At the June 9, 2021 IEP team meeting, Escondido Union School District continued to offer their own Structured Communication Social Behavioral Program, but they also agreed to allow Student to complete his 2021 extended school year session at Foundations to help him transition back to its own program. However, the IEPs did not offer Foundations as a stay put placement.
Student did not meet his burden of establishing the temporary placement at Foundations was his stay put placement. The evidence established Foundations was offered as a temporary placement at the January 7, January 15, April 13, and June 9, 2021 IEP team meetings. Student’s stay put placement is Escondido Union School District’s public program at Bernardo Elementary, as delineated at the February 18 and June 1, 2020 IEP, signed by Parent. The motion for stay put is denied.
IT IS SO ORDERED.
Deborah Myers-Cregar Administrative Law Judge Office of Administrative Hearings