California OAH special education order · June 22, 2022
Order Granting Motion for Stay Put
OAH Case No. 2022050504 · ALJ Cararea Lucier
OAH granted Student's stay put motion, ruling that Ross Valley must provide the extended school year services in Student's IEP even though it could not hire a special day class teacher.
Summary
Student asked OAH to order stay put on the extended school year (ESY) services in Student's IEP dated May 25, 2021, as amended March 31, 2022. Those services were 540 minutes per week in a special day class, 30 minutes per week of group speech, 60 minutes per month of occupational therapy, and 60 minutes per month of individual counseling. Ross Valley agreed these services were Student's current placement. It opposed the motion, arguing it is a small Marin County district and could not fill the ESY special day class teacher position. OAH found that argument unpersuasive because the IDEA requires a district to implement the IEP while the dispute is pending, whatever its hiring difficulties.
Why it matters
Staffing shortages do not excuse a district from providing a student's last agreed-upon IEP services, including ESY, during a due process dispute. Parents can use stay put to require those services even when the district says it cannot find staff.
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 MATTER OF:
PARENTS ON BEHALF OF STUDENT,
v.
ROSS VALLEY SCHOOL DISTRICT.
OAH CASE NUMBER 2022050504
ORDER GRANTING MOTION FOR STAY PUT
JUNE 22, 2022
On June 13, 2022, Student filed a motion for stay put. On June 15, 2022, Ross Valley School District filed an opposition on the ground that it could not implement Student’s Individualized Education Program, referred to as IEP, during the extended school year session in 2022 because it has been unable to hire staff for the program. On June 17, 2022, Student filed a response to Ross Valley’s 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.) 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
The parties agree that pursuant to the IEP dated May 25, 2021, as amended on March 31, 2022, Student’s current placement includes extended school year services, referred to as ESY, in the amount of 540 minutes per week in a special day class, 30 minutes per week of group speech services, 60 minutes per month of occupational therapy services, and 60 minutes per month of individual counseling. Ross Valley argues that it is unable to implement the services to which Student is entitled because it is a small school district in Marin County, California, and has been unable to fill the position of the special day class teacher for the ESY program. Ross Valley’s argument is unpersuasive. Notwithstanding the administrative challenges of hiring personnel, the IDEA requires Ross Valley to implement Student IEP pending resolution of the pending dispute. As such, Student’s motion for stay put is granted.
IT IS SO ORDERED.
Cararea Lucier Administrative Law Judge Office of Administrative Hearings