California OAH special education order · June 27, 2024

Order Denying Motion for Stay Put

OAH Case No. 2024060681 · ALJ Tiffany Gilmartin

OAH denied Student's stay put motion because the special day class placement at Jane Lathrop Stanford Middle School was expressly temporary, so the June 29, 2023 IEP's nonpublic school placement remains stay put.

Denied Stay put

Summary

Student asked OAH to treat an interim special day class placement at Jane Lathrop Stanford Middle School as Student's stay put placement. Student had been placed there after Parent disenrolled Student from the nonpublic school, Achieve Kids Palo Alto, and then re-enrolled in Palo Alto. Palo Alto opposed the motion. OAH found that the district's email described the placement as temporary while a new nonpublic school was found, and a temporary placement does not become stay put. Palo Alto must keep implementing all supports and services in the June 29, 2023 IEP.

Why it matters

A placement a district clearly labels as temporary or interim, such as one made while it looks for a new nonpublic school, will not become the stay put placement. The last agreed-upon and implemented IEP still controls. Parents should check how interim placements are described in writing.

Key authority cited

20 U.S.C. § 1415(j)
34 C.F.R. § 300.518(a)
Ed. Code § 56505, subd. (d)
Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1
Leonard by Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558

Topics

stay put interim placement nonpublic school temporary placement disenrollment

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,

PALO ALTO UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2024060681

ORDER DENYING MOTION FOR STAY PUT

JUNE 27, 2024

On June 19, 2024, Student filed a motion for stay put. On June 24, 2024, Palo Alto Unified School District filed an opposition on the ground that it has implemented Student’s operative IEP which directs Student be placed at a non-public school and have extended school year eligibility. Palo Alto argues Student disenrolled from the NPS placement in the operative IEP. Upon re-enrollment at Palo Alto, Student was placed in a classroom at Jane Lathrop Stanford Middle School as an interim placement until a new NPS placement could be arranged. Palo Alto argues the interim placement at the comprehensive middle school was not Student’s placement for purposes of stay put.

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.)

However, if a student’s placement in a program was intended only to be a temporary placement, such placement does not become a student’s “stay put”

placement. (Verhoeven v. Brunswick School Committee (1st Cir. 1999) 207 F.3d 1, 7-8;

Leonard by Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558, 1563-64.)

DISCUSSION

Here both parties agree the last agreed upon and operative individual education program, called IEP, is June 29, 2023, IEP. This IEP identified Achieve Kids Palo Alto, an NPS, as Student’s placement for the 2023-2024 school year. Parent disenrolled Student from Achieve Kids on April 17, 2024. Student reenrolled at Palo Alto on April 19, 2024.

Parent argues the interim placement of Student on May 6, 2024, in a special day class at Jane Lathrop Stanford Middle School became Student’s placement for stay put purposes. Parent provided the email from Assistant Superintendent for Education Services, Equity, and Student Affairs as evidence of his position. However, the email clearly states the placement is temporary in nature and is intended to allow Palo Alto to continue to implement Student’s IEP provisions while a new NPS placement is obtained.

Palo Alto does not dispute it has an obligation to implement Student’s IEP while a new appropriate placement for Student is located. Palo Alto objects to the temporary placement provided to Student overriding Student’s operative IEP. The temporary placement provided by Palo Alto does not override Student’s operative IEP. Palo Alto must continue to implement all supports and services as agreed upon in Student’s June