California OAH special education order · December 31, 2024
Order Denying Motion for Stay Put
OAH Case No. 2024120385 · ALJ Charles Marson
OAH denied Student's stay put motion because the Sonday Reading Program appeared only in the IEP's present levels section, not in the offer of services, so it is not part of stay put.
Summary
Student asked OAH for a stay put order requiring San Jose to keep providing a structured literacy program using the Sonday Reading Program, which Student had received under earlier IEPs. San Jose opposed, arguing the program was not part of Student's last agreed-upon IEP from September 9, 2023. OAH agreed with San Jose. The program was mentioned only in the present levels of performance section, while the offer of services listed 884 weekly minutes of specialized academic instruction and speech and language services without naming structured literacy or Sonday, and the meeting notes did not mention it either.
Why it matters
Stay put protects only what the IEP actually offers in its services section, so parents should make sure a specific program or methodology they rely on is written into the offer of services, not just described in present levels or progress notes.
Key authority cited
- 20 U.S.C. § 1415(j)
- Ed. Code, § 56505, subd. (d)
- Ed. Code, § 48915.5
- Casey K. v. St. Anne Community High School District No. 302 (7th Cir. 1998) 400 F.3d 508
- Thomas v. Cincinnati Board of Education (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 JOSE UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2024120385
ORDER DENYING MOTION FOR STAY PUT
DECEMBER 31, 2024
On December 11, 2024, Student filed a request for due process hearing, naming the San Jose Unified School District. On December 18, 2024, Student filed a motion for a stay put order, contending that San Jose was not providing a reading service required by the last placement agreed upon by the parties. On December 23, 2024, San Jose filed an opposition to the motion, contending that the service in question, a structured literacy program using the Sonday Reading Program, is not part of Student's individualized education program, called an IEP, and that San Jose is therefore not required to provide it.
APPLICABLE LAW
A special education student is entitled to remain in his or her current educational placement pending the completion of due process hearing procedures unless the parties agree otherwise. (20 U.S.C. § 1415(j); Ed. Code, §§ 56505, subd. (d), 48915.5.)
Stay put operates automatically upon due process filing. (See Casey K. v. St. Anne Community High School District No. 302 (7th Cir. 1998) 400 F.3d 508, 511.) For purposes of stay put, the current educational placement is typically the placement called for in the student's IEP which has been implemented prior to the dispute arising.
(Thomas v. Cincinnati Board of Education (6th Cir. 1990) 918 F.2d 618, 625.)
DISCUSSION
The parties agree that the IEP of September 9, 2023, was signed by Parents and is the last agreed-upon and implemented IEP. The dispute is whether that IEP requires San Jose to continue to provide the structured literacy program, using the Sonday Reading Program, that Student had been receiving under previous IEP's.
Student contends that a paragraph in the IEP in the section describing Student's present levels of performance constitutes part of the accepted offer of a free appropriate public education, called a FAPE. However, the paragraph contains no language that would support that conclusion. The paragraph states that Student is able to read the sounds and words that she sees and is able to spell the sounds and words that she hears, as she works through the Sonday Reading Program. It continues by stating that Student began the year in Sonday System One, level 30, and is now working on Sonday System Two, level five. Finally, as relevant here, it states that Student does a great job of forming original sentences, and the teacher would love to see Student vary her sentence structure more in multi-sentence responses. The paragraph concludes by discussing other matters.
Student argues that this paragraph constitutes part of San Jose's offer of a FAPE, and that Parents accepted the offer believing it continued student's structured literacy services using the Sonday Reading Program. However, the paragraph is not part of the specific offer the IEP made to Parents. It is part of a lengthy discussion of Student's present levels of performance and does not reappear in any other part of the IEP.
The offer of FAPE is set forth on the fifth page of the IEP, on a page entitled "Special Education and Related Services," under the heading "Special Education and Related Services Offered." It offered Student 884 minutes weekly of specialized academic instruction, including 40 minutes monthly of group speech and language services, and forty minutes, three times a month, of individual language services. The IEP identified the frequency with which these services would be provided, and their duration. Neither structured literacy nor the Sonday Reading System was mentioned.
The meeting notes do not mention structured literacy or the Sonday Reading System. Instead, in summarizing the offer, the meeting notes state: "District offer of FAPE includes SAI for 884 minutes weekly in a group setting."
In short, the IEP that the parties agree is Student's last agreed-upon placement does not offer structured literacy or use of the Sonday Reading Program. That service is not part of Student's stay put placement.
Student's motion for stay put is denied.
IT IS SO ORDERED.
Charles Marson Administrative Law Judge Office of Administrative Hearings