California OAH special education order · August 5, 2024
Order Denying Motion for Stay Put
OAH Case No. 2024070614 · ALJ Cynthia Fritz
OAH denied Student's stay put motion without prejudice because Student did not attach the May 31, 2024 IEP or submit a declaration under penalty of perjury to support the claimed placement.
Summary
Student asked OAH to order New Bridge nonpublic school as stay put, claiming the May 31, 2024 IEP was the last agreed-upon and implemented IEP. San Diego opposed. It argued the last agreed-upon IEP was dated March 25, 2024, which provided for a nonpublic school, and that changed circumstances called for a comparable placement instead of New Bridge. OAH denied the motion without prejudice because Student neither attached the May 2024 IEP nor supported the motion with a declaration under penalty of perjury, leaving insufficient evidence.
Why it matters
A stay put motion must include proof: attach the IEP relied on and a sworn declaration, or OAH may deny it without reaching the merits. Because the denial was without prejudice, the motion can be refiled with proper evidence.
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.
SAN DIEGO UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2024070614
ORDER DENYING MOTION FOR STAY PUT
AUGUST 5, 2024
On July 18, 2024, Student filed a request for due process hearing, called a complaint. On July 25, 2024, Student filed a motion for stay put. On July 26, 2024, District filed an 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
Student contends that Student’s last-agreed upon and implemented IEP is dated May 31, 2024. Student maintains, under the terms of this IEP, Student’s stay put placement is New Bridge nonpublic school. San Diego contends that Student’s last agreed upon IEP is dated March 25, 2024, which specifies Student’s stay put placement is a nonpublic school. Additionally, San Diego argues that changed circumstances requires OAH to order a comparable placement and not New Bridge nonpublic school as Student’s stay put placement.
Here, Student neither attached the May 31, 2024, IEP, nor supported the motion for stay put with a declaration under penalty of perjury. Without the May 2024 IEP, Student failed to provide sufficient evidence to support the request that the May 31, 2024, placement offer, is Student’s stay put placement.
Accordingly, Student’s motion for stay put is denied without prejudice.
IT IS SO ORDERED.
Cynthia Fritz Administrative Law Judge Office of Administrative Hearings