OAH Denies Motion for Stay Put During School Closure
On September 22, 2020, the Office of Administrative Hearings (“OAH”) issued an order denying a Motion for Stay Put in Parent on Behalf of Student v. Ventura Unified School District, OAH Case No. 2020090317 (“Ventura”). Notably, this Order denied in-person, in-home behavioral aide services requested by Student.
Student argued that the stay-put doctrine required the District to implement in-home one-to-one behavior therapy services (provided in Student’s May 7, 2020 individualized education program [“IEP”]) during distance learning. Student further argued that the in-home behavior services were necessary for health, safety, and educational access.
The District responded in opposition that it provided Student an Individualized Distance Learning Plan (“DLP”) comparable to Student’s May 7, 2020 IEP, which included 1,775 minutes weekly intensive individualized services, and occupational therapy and speech services. However, Student’s DLP provided only 1,175 minutes of weekly intensive individualized services. The District made available to the Student virtual behavioral therapy services through a nonpublic agency.
The stay put doctrine provides that 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(d). For purposes of stay put, the current educational placement is the last agreed upon and implemented IEP placement prior to the dispute arising. Additionally, a school closure for budgetary reasons requires a “comparable program” in another location for stay put. (See McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527, 1533; Knight by Knight v. District of Columbia (D.C. Cir. 1989) 877 F.2d 1025, 1028; Weil v. Board of Elementary & Secondary Educ. (5th Cir. 1991) 931 F.2d 1069, 1072-1073; see also Concerned Parents & Citizens for the Continuing Ed. at Malcolm X (PS 79) v. New York City Bd. of Ed. (2d Cir. 1980) 629 F.2d 751, 756; Tilton by Richards v. Jefferson County Bd. of Educ. (6th Cir. 1983) 705 F.2d 800, 805)
On April 9, 2020, the California Department of Education (“CDE”) implemented Executive Order N-26-20, by issuing Special Education Guidance for COVID-19. This guidance noted that, in some exceptional situations, a local educational agency may need to provide certain in-person supports and services to individual students to maintain the student’s mental health and physical health and safety. The CDE also stated that any alternative delivery options should comply with federal, state and local health official’s guidance related to physical distancing in order to keep students and staff safe and healthy.
In Ventura, the OAH noted that CDE stated that if an “individual determination” is made that a student needs in-person services or supports to maintain health and safety, the local educational agency “is not necessarily precluded from providing those services” in exceptional circumstances. The OAH also pointed out, however, that the CDE did not mandate in-person services.
Relying on the CDE’s guidance, the OAH denied Student’s request for in-person services, reasoning there had been no “individualized determination” of exceptional circumstances that Student required in-person, in-home behavioral therapy.
The OAH reiterated that the District was required to implement Student’s May 7, 2020 IEP during the pendency of her pending due process action, and that the District must provide 1,775 minutes weekly of intensive individualized services (not the 1,175 minutes specified in Student’s DLP), as well as the speech and language, occupational therapy, and behavioral services specified in her IEP. But, the OAH concluded that the District was not required to provide the Student with in-person behavior services.
While this Order appears to contradict OAH’s Order in Parent on Behalf of Student v. Pleasanton Unified School District and Contra Costa County Office of Education, OAH Case No. 2020070970, the facts of the cases are different. In Pleasanton, the student’s last agreed-on IEP called for aide services, while in Ventura, the last agreed-on IEP did not call for an aide. Because the Student’s IEP in Ventura did not call for an aide, the OAH concluded that the Student was not asking for stay put, but was actually asking for a modification of his existing IEP.
The law governing stay put is clear: Local educational agencies are required to provide students with a stay-put placement that is comparable to the educational placement and services contained in the last agreed-on and implemented IEP. In cases where the stay-put placement cannot be implemented exactly as written in the student’s IEP, districts must attempt to replicate the placement that existed at the time the dispute arose as closely as possible, considering 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.)
What Does This Mean:
As anticipated, we are continuing to see due process filings, including motions for stay put that request in-person services while schools remain closed. Based on the orders from the OAH thus far, LEAs need to be prepared to provide students with a program comparable to the placement and services as written in their IEPs. Those programs should maintain the frequency, duration, and intensity of the services specified in the IEP. Assuming the last agreed-on IEP includes an aide, LEAs may need to provide in-home or school-based services comparable to services specified in IEPs. However, if the last agreed-on IEP does not require the services of an aide, LEAs are not required to provide in-person services absent an “individualized determination” that such services are required due to exceptional circumstances that in-person services are necessary to support a student’s mental and physical health.