California OAH special education order · May 11, 2023
Order Granting in Part and Denying in Part Motion for Stay Put
OAH Case No. 2023050025 · ALJ Paul H. Kamoroff
OAH denied Student's stay put request for a general education class, because his home was already set as his interim placement in a pending discipline appeal, but ordered Salinas to provide his IEP services at home.
Summary
Student asked for stay put in a general education classroom with the math specialized academic instruction and counseling from his September 20, 2022, IEP. Salinas opposed. OAH had already ruled in Student's separate expedited discipline appeal (OAH case no. 2023040286) that his home is his interim alternative educational setting while that appeal is pending, so it denied the request for a general education class. OAH granted the request for services and ordered Salinas to provide 40 minutes daily of math specialized academic instruction and 25 minutes weekly of counseling at Student's home until the expedited case is resolved. Student may file a new stay put motion after that.
Why it matters
When a student is appealing a disciplinary removal, ordinary stay put does not return the student to the prior classroom, because the student stays in the interim setting. Parents can still get IEP services delivered in that setting while the appeal is pending.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code § 56505(d)
- 20 U.S.C. § 1415(k)(4)
- 34 C.F.R. § 300.532
- 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.
SALINAS UNION HIGH SCHOOL DISTRICT, SALINAS CITY
ELEMENTARY SCHOOL DISTRICT AND SANTA RITA UNION
SCHOOL DISTRICT.
OAH CASE NUMBER 2023050025
ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR STAY PUT
MAY 11, 2023
On May 1, 2023, Student filed a motion for stay put. On May 4, 2023, Salinas City Elementary School District, called Salinas, filed an opposition. Student replied to the opposition on May 9, 2023.
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.)
When a child violates the student conduct code and school personnel seek a placement change exceeding ten school days, the local educational agency, the parent, and the relevant IEP team members shall determine if the conduct was a manifestation of the child’s disability. A child’s parent may appeal the manifestation determination and request an expedited due process hearing. In such cases, “the State or local education agency shall arrange for an expedited hearing.” (20 U.S.C. § 1415(k)(4)(B); 34 C.F.R. § 300.532(c).)
The expedited hearing shall occur within 20 school days of the hearing request.
(Id.) (20 U.S.C. § 1415(k); 34 C.F.R. § 300.532).) While the appeal is pending, the child shall remain in the interim alternative educational setting, called IAES, pending the hearing officer’s decision or until IAES placement expires after 45 school days, whichever is first, unless the parent and the local education agency agree otherwise. (Ed. Code, § 56505, subd. (d); see 20 U.S.C. §1415(k)(4)(A) & 34 C.F.R. §§ 300.532, 300.533.)
On April 7, 2023, Student filed an expedited due process hearing complaint in OAH case no. 2023040286, to appeal a disciplinary change of placement. The hearing for that case is pending. On April 28, 2023, OAH denied Student’s motion for stay put in that matter. While Student established his last agreed upon and implemented individualized education program, called IEP, dated September 20, 2022, provided placement in a general education classroom, with 40 daily minutes of math specialized academic instruction and 25 weekly minutes of counseling services. However, Student failed to establish that the stay put provision is applicable during the pendency of the appeal challenging a school district’s disciplinary change of placement, as special education disciplinary provisions are an exception to stay put.
OAH ordered that Student’s IAES was Student’s home. OAH also ordered that Salinas provide Student the services offered in the September 20, 2022, IEP at Student’s home during the pendency of the expedited matter, which has not yet been resolved.
Consequently, OAH has already determined Student’s stay put placement until the expedited hearing, OAH case no. 2023040286, is fully resolved, is Student’s’ home with special education services offered in the September 20, 2022, IEP. Therefore, Student’s request for stay put placement in a general education class is denied.
Student is entitled to special education and related services at his home, the IAES.
Consequently, Student’s request that Salinas provide 40 minutes daily of math specialized academic instruction and 25 minutes of counseling each week at his home is granted.
ORDER
1. Student’s motion for stay put is denied as to the general education class.
2. Student’s motion for stay put is granted as to special education and related
services. Salinas shall provide Student 40 minutes daily of math specialized academic instruction and 25 minutes of counseling each week at Student’s home, his IAES, during the pendency of the expedited case, OAH case no.
OAH case no. 2023040286.
3. Student may file a new motion for stay put following the resolution of OAH
case no. 2023040286.
Paul H Kamoroff Administrative Law Judge Office of Administrative Hearings