OAH Case No. 2020070970
Last summer, on August 24, 2020, in special education case Student v. Pleasanton Unified School District and the Contra Costa County Office of Education, OAH Case No. 2020070970, the Office of Administrative Hearings "OAH" issued an order granting the student's Motion for Stay Put. The student had filed the Motion for Stay Put in order to be provided the in-person services included in her IEP during distance learning.
Under the Individuals with Disabilities Education Act, during the pendency of any administrative or judicial proceeding, unless the parties agree otherwise, the child involved in the complaint must remain in his or her current educational placement. For purposes of stay put, the current educational placement is the last agreed upon and implemented placement in the child's IEP. This is called the stay put doctrine.
In this case, at the time the motion was granted, the student was eleven-years-old. She has a rare genetic condition called Wolf-Hirschhom chromosome disorder, that resulted in her substantial developmental delays.
The student's last agreed upon and implemented IEP offered her several services, including a full-time LVN during the school day to do a variety of tasks such as monitoring her seizures, her administering medications, feeding her through a feeding tube, and repositioning her body.
After school sites closed in March, the school district developed a distance learning plan for the student. The plan did not offer the student any in-person services.
Last March, California Governor Newsom issued Executive Order N-26-20, which directed the California Department of Education and the Health and Human Services Agency to develop guidance to ensure that students with disabilities continue to receive a free appropriate public education "FAPE". The order indicates that in some exceptional instances, students with special needs can be provided services in-person in order to maintain their mental, physical, health and safety needs. And alternative models of delivery of services should comply with federal, state, and local health and safety official guidance.
In granting the student's Motion for Stay Put, the administrative law judge concluded that guidelines under the Executive Order did not preclude school districts from providing in-person services. And in this case, the local health authority in Contra Costa County allowed in-person educational services for instruction that cannot be done remotely and are required for a student to receive an education.
Further, in granting the stay put order, the administrative law judge relied on existing law that states that when an IEP cannot be implemented exactly as written in the IEP, school district must try to replicate the placement that existed at the time the dispute arose as closely as possible. The order acknowledged that the services the student's distance learning plan offered her, given her need for intensive services, were not comparable to the services she had been provided prior to the school site closures in March.
The OAH ordered the school district and the County Office of Education to provide the student with in-person services, including her one-to-one LVN support, speech or language therapy, physical therapy and vision services in the duration and intensity described in her IEP. The order indicated that qualified staff from a nonpublic agency could be used to provide these services.
This means that for students who have intensive needs such as those who are medically fragile or have significant behaviors, and those who are unable to access their education through distance learning may be entitled to a distance learning plan that is comparable to the last agreed upon and implemented IEP.