California OAH special education order · August 22, 2023
Order Granting Motion for Stay Put
OAH Case No. 2023061008 · ALJ Penelope S. Pahl
OAH granted Student's stay put motion even though Brea Olinda agreed stay put applied, because stay put is a statutory entitlement whenever a dispute exists, and the due process filing shows one.
Summary
Student asked OAH for an order requiring Brea Olinda to keep implementing Student's current program while the due process case is pending. Brea Olinda opposed only on the ground that the motion was unnecessary, since it agreed stay put was due and gave a sworn declaration promising to keep Student's program in place. OAH granted the motion. It reasoned that agreement on stay put does not take away Student's statutory right to it, and that the due process complaint shows a dispute exists. OAH ordered the April 20, 2022 IEP, as amended January 31, 2023, implemented until the dispute is resolved.
Why it matters
Families can get a formal stay put order even when the district agrees the current IEP stays in place. A written order is easier to enforce than a district's promise if implementation later breaks down.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code § 56505(d)
- Cal. Code Regs., tit. 5, § 3042(a)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
People named in the order
- Kerry Mamrot, Program specialist (district declarant)
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.
BREA OLINDA UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2023061008
ORDER GRANTING MOTION FOR STAY PUT
AUGUST 22, 2023
On June 27, 2023, Student filed a request for due process hearing naming Brea Olinda Unified School District as respondent. On August 14, 2023, Student filed a motion for stay put. On August 17, 2023, Brea Olinda filed an opposition on the ground that the motion was unnecessary as no dispute exists that stay put is due.
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 is entitled to stay put during the pendency of any dispute. (20 U.S.C.
§ 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).) Brea Olinda provided a sworn declaration from program specialist Kerry Mamrot, pledging that Student’s program and services will continue in Student’s current educational placement. Both sides agree that “stay put” is Student’s April 20, 2022 IEP as amended on January 31, 2023. The fact that no dispute exists as to Student’s right to stay put does not mean Student is not entitled to stay put. The entitlement is statutory unless no dispute exists as to Student’s educational program, or any provision of the IDEA. Such a dispute does exist in this instance as demonstrated by Student’s complaint filing.
ORDER
1. Student’s motion for stay put is granted.
2. Student’s most recently implemented IEP, the April 20, 2022 IEP as
amended on January 31, 2023, shall be implemented pending resolution of this dispute.
IT IS SO ORDERED.
Penelope S. Pahl Administrative Law Judge Office of Administrative Hearings