California OAH special education order · June 14, 2024

Order Denying Motion for Stay Put

OAH Case No. 2024050916 · ALJ Cole Dalton

OAH denied Student's stay put motion without prejudice because Student did not produce an IEP showing the last agreed upon and implemented placement.

Denied without prejudice Stay put

Summary

Student asked OAH to order stay put while the due process case was pending. Vacaville opposed for two reasons. First, Student did not attach the last agreed upon and implemented IEP. Second, Vacaville argued stay put should be progression to an adult transition program after Student received a certificate of completion. OAH denied the motion without prejudice because the placement could not be determined without the IEP, and said Student may file another stay put motion.

Why it matters

A stay put motion should attach the last agreed upon and implemented IEP. Without it, OAH cannot identify the placement to protect, and the motion can fail on that alone.

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
  • Van Scoy v. San Luis Coastal Unified School Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083

Topics

stay put last implemented iep evidence burden denied without prejudice certificate of completion adult transition

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.

VACAVILLE UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2024050916

ORDER DENYING MOTION FOR STAY PUT

JUNE 14, 2024

On May 23, 2024, Student filed a request for due process hearing, complaint, with the Office of Administrative Hearings, OAH, naming Vacaville Unified School District.

On June 5, 2024, Student filed a motion for stay put. On June 7, 2024, Vacaville filed an opposition on the ground that Student could not demonstrate stay put as Student did not attach a copy of the last agreed upon and implemented IEP to Student’s motion. Vacaville also argues that stay put should be progression to an adult transition program after Student’s receipt of a certificate of completion.

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, however, 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).) When a student advances from grade to grade, 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.)

Here, Student’s last agreed upon and implemented placement cannot be determined as Student has not produced an IEP demonstrating such placement.

Accordingly, Student’s motion for stay put is denied without prejudice. Nothing prevents Student from filing another motion for stay put in this case.

IT IS SO ORDERED.

Cole Dalton Administrative Law Judge Office of Administrative Hearings