California OAH special education order · February 16, 2022
Order Granting Motion for Stay Put
OAH Case No. 2021110193 · ALJ June Lehrman
OAH granted Student's stay put motion, ordering a nonpublic residential placement with related services even though the Texas facility could no longer serve Student and no comparable placement had been found.
This case went to decision
Student v. William S. Hart Union High School District: William S. Hart Union High must fund two IEEs after its 2019 psychoeducational and speech assessments were found inappropriate. (2022)
Summary
Student asked for stay put under the January 19, 2022 IEP amendment, which Parent consented to on February 4, 2022. That IEP placed Student in a nonpublic residential placement with related services. The placement was at a Texas residential treatment facility that could no longer serve Student. William S. Hart opposed, arguing that: - it could not maintain stay put with the facility unavailable; - it had not yet found a comparable placement; - Mother had disputed the facility's appropriateness; and - Student had not identified a comparable placement. OAH held that none of these arguments defeated Student's right to stay put under the agreed-upon IEP. It ordered a nonpublic residential placement with the IEP's related services.
Why it matters
When a stay put placement closes or can no longer serve a student, the district still must provide a comparable placement. It cannot avoid stay put by saying it has not found one, or that the parent has not found one for it.
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. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115
- McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527
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.
WILLIAM S. HART UNION HIGH SCHOOL DISTRICT.
OAH CASE NUMBER 2021110193
ORDER GRANTING MOTION FOR STAY PUT
FEBRUARY 16, 2022
On February 10, 2022, Student filed a motion for stay put. On February 16, 2022, William S. Hart Union High School District filed an opposition. For the reasons stated below, the motion is granted.
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).)
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).) The stay-put provision entitles the student to receive a placement that, as closely as possible, replicates the placement that existed at the time the dispute arose, taking into account the changed circumstances. (R.F. Frankel v. Delano Union School District, (E.D. Cal 2016) 224 F. Supp. 3d, 979, citing, Van Scoy ex rel. Van Scoy v.
San Luis Coastal Unified School Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083, 1086.)
A school closure 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.)
DISCUSSION
Student’s most recently-implemented IEP is dated January 19, 2022. Parent consented to the IEP on February 4, 2022. Per the January 19, 2022 IEP amendment, Student’s placement was in a nonpublic residential placement with related services including specialized academic instruction, individual counseling, parent counseling, college awareness services, vocational counseling services, and career awareness services. Student was placed in a residential treatment facility located in Texas that is no longer able to service her.
William S. Hart argues that it cannot maintain stay put when the Texas facility is unavailable, and further argues that it is investigating but has, so far, been unable to locate a comparable placement. William S. Hart also argues that Mother has disputed the appropriateness of the Texas facility. William S, Hart further contends that Student has not identified a comparable placement, in the absence of such identification by Student, the motion should be denied. None of these arguments defeat Student’s right, as a matter of law, to stay put, according to the terms of the agreed to IEP. The motion for stay put is granted.
ORDER
The motion for stay put is granted. Student’s stay put placement shall be in a nonpublic residential placement with related services including specialized academic instruction, individual counseling, parent counseling, college awareness services, vocational counseling services, and career awareness services.
IT IS SO ORDERED.
June Lehrman Administrative Law Judge Office of Administrative Hearings