OAH CASE NUMBER 2020090317
BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS STATE OF CALIFORNIA
IN THE MATTER OF:
PARENTS ON BEHALF OF STUDENT,
VENTURA UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020090317
ORDER DENYING MOTION FOR STAY PUT
SEPTEMBER 22, 2020
Student filed a motion for stay put on September 14, 2020. Student’s motion was supported by a declaration by Student’s counsel under penalty of perjury attaching a copy of Student’s last agreed upon individualized education program, referred to as IEP. Ventura Unified School District, referred to as Ventura, filed an opposition to the stay put motion on September 17, 2020. Venture acknowledged in its opposition brief the May 7, 2020 IEP is Student’s last agreed upon IEP. Student filed a reply to Ventura’s opposition on September 18, 2020.
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, subd. (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 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).) Courts have recognized, however, that the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S. ex rel. G. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35, superseded by statute on other grounds; 20 U.S.C. § 1414(d)(1)(B).)
When stay put placement cannot be implemented exactly as written in the IEP, school 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.) The stay put placement must be a comparable program for that child.
DISCUSSION AND ORDER
Student argues Ventura is required to implement Student’s May 7, 2020 IEP by providing Student in-home one-to-one behavior therapy services during distance learning. Student asserts behavioral therapists are “Essential Critical Infrastructure Workers” under California Governor Gavin Newsom’s Executive Order N-33-20 and are required to provide the services in-person to maintain Student’s health and safety to support Student’s access to her education.
Ventura asserts it is implementing through distance learning an Individualized Distance Learning Plan which provides a comparable program to Student’s May 7, 2020 IEP, including 1,775 minutes per week of intensive individualized services, and occupational therapy and speech services. The Individualized Distance Learning Plan attached to Ventura’s opposition provides only 1,175 minutes of weekly intensive individualized services; 600 minutes less than required by Student’s May 7, 2020 IEP.
Ventura further asserts it is continuing to provide Student behavioral therapy services through a non-public agency with virtual support consistent with the May 7, 2020 IEP. Ventura contends Student’s motion does not specify how Ventura is not meeting Student’s educational needs while implementing Student’s last agreed upon IEP through distance learning.
On March 4, 2020, California Governor Gavin Newsom declared a state of emergency in California due to the threat of novel COVID-19. On March 13, 2020, Governor Newsome issued Executive Order N-26-20 which directed the California Department of Education, referred to as CDE, and the Health and Human Services Agency to jointly develop guidance ensuring that students with disabilities receive a free appropriate public education consistent with their IEPs under the Individuals with Disabilities Education Act, referred to as IDEA during public health related school closures.
On April 9, 2020, CDE implemented Executive Order N-26-20 by issuing Special Education Guidance for COVID-19. (Cal. Dept. of Educ., Special Education Guidance for COVID 19 School Closures and Services to Students with Disabilities (April 9, 2020).) CDE addressed whether school districts may provide in-person special education services while schools are closed due to COVID-19. CDE noted that in some exceptional situations, a local education agency may need to provide certain supports and services to individual students in-person to maintain the student’s mental or physical health and safety. These services might be required to support the student in accessing alternative options for distance learning. CDE confirmed any alternative delivery options should comply with federal, state and local health official’s guidance relating to physical distancing, with a primary consideration of keeping all participants safe and healthy.
CDE directed if an “individual determination” is made that a student needs services or supports in-person to maintain their mental or physical health and safety, the local educational agency “is not necessarily precluded from providing that service” by Governor Newsom’s stay at home order. CDE’s guidelines did not mandate that in under these circumstances in-person services are required, but rather provides the local educational agencies the ability to do so in exceptional circumstances.
The governmental guidelines issued during the COVID-19 school closures provide a means for school districts to substantially comply with the IDEA, utilizing alternative delivery models of educational services to materially implement a student’s IEP. Ventura acknowledges the May 7, 2020 IEP establishes the basis for Student’s stay put. Ventura has been implementing Student’s IEP, using alternative distance learning, under Governor Newsom’s executive orders and the guidelines issued by the CDE and orders by local health agencies.
Student’s argument she is entitled to in-person services as stay put misinterprets Governor Newsom’s executive orders and the guidance provided by CDE. CDE’s April 9, 2020 Special Education Guidance for COVID-19 requires the local educational agency to make an “individualized determination” whether exceptional circumstances exist to permit in-person to support a student’s mental and physical health. Here, there has been no individualized determination by Ventura that exceptional circumstances exist to provide Student’s behavioral therapy sessions in-person. Student’s motion stay put, therefore, seeks a modification of the May 7, 2020 IEP.
Student further argues the Student’s IEP team discussed in the September 3, 2020 IEP team meeting that Student would benefit from in-person support during distance learning. Student’s asserts in her reply brief the September 3, 2020 IEP was not signed by Parents. The September 3, 2020 is not the last agreed upon and implemented IEP and is not relevant to the current stay put motion.
Student’s stay put during the pendency of this action is her May 7, 2020 IEP, unless or until an IEP team changes the IEP and Parents consent. This includes 1,775 minutes of weekly intensive individualized services, not 1,175 minutes as specified in Ventura’s Individualized Distance Learning Plan for Student, as well as the speech and language, occupational therapy and behavioral services specified in the IEP.
Student’s motion seeks a modification of Student’s IEP through a stay put order, and her motion therefore is denied.
IT IS SO ORDERED.
Jennifer Kelly Administrative Law Judge
Office of Administrative Hearings