OAH Grants Motion for Stay Put and Orders In-Person Services During School Closure

08.28.2020

On August 24, 2020, the Office of Administrative Hearings (“OAH”) issued an order granting a Motion for Stay Put in the Matter of: Parent on Behalf of Student v. Pleasanton Unified School District and Contra Costa County Office of Education, OAH Case No. 2020070970.  

Relevant Facts:
Student sought a stay put order with respect to what she deemed “essential related services” in her Individualized Education Program (“IEP”).  Student is an eleven year old born with Wolf-Hirschhorn chromosomal syndrome, which significantly impacted all areas of her development.  Student’s last agreed upon and implemented IEP included the following related services: speech therapy, occupational therapy, physical therapy, adapted physical education, and specialized vision services.  Student’s IEP also included a health care plan and provided for a full-time Licensed Vocational Nurse (“LVN”) as a one-on-one aide for the duration of her school day to administer medication, monitor seizures, feeding through a tube, repositioning and ambulating her body, and many other tasks. 

There was no dispute between the parties that Student’s last agreed upon and implemented IEP is dated August 27, 2019, and that IEP was previously determined to be her stay put placement by OAH. 

According to the Order, the parties also agreed that the distance learning plan offered and made available to Student during the school closure did not constitute a free appropriate public education (“FAPE”) for Student.  However, both the District and the Contra Costa County Office of Education (“CCCOE”) explained that the distance learning plan offered was reasonable and feasible in light of the extraordinary circumstances caused by the COVID-19 pandemic.  The District and the CCCOE also argued that they were not permitted to deliver in-person services for Student due to the July 17, 2020, framework issued by the California Department of Public Health (“CDPH”).  It is also important to note that the District was already ordered to provide Student with compensatory in-person physical therapy since July 2020 by the California Department of Education (“CDE”).

Applicable Law/Guidance:
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. 

On March 13, 2020, Governor Newsom issued Executive Order N-26-20 which directed CDE and the Health and Human Services Agency to develop guidance to ensure that students with disabilities continue to receive a FAPE consistent with their IEPs.  To that end, on April 9, 2020, CDE issued Special Education Guidance for COVID-19.  Notably, that guidance did not address stay put, but did address whether districts could provide in-person special education services while schools are closed due to COVID-19.  Specifically, the guidance provided as follows:

“Is an LEA precluded from providing services to students with disabilities in-person or in the home for the purpose of supporting the student in accessing the alternative options for learning being offered?

No. In some exceptional situations, LEAs may need to provide certain supports and services to individual students in-person in order to maintain students’ mental/physical health and safety for the purpose of supporting the student in accessing the alternative options for learning being offered (e.g. distance learning). With that said, alternative service delivery options should seek to comply with federal, state, and local health official’s guidance related to physical distancing, with the goal of keeping students, teachers and service providers safe and healthy as the primary consideration.”

Pursuant to Executive Order N-33-20, CDE also clarified that service providers, including nurses and assistants, physical and occupational therapists, social workers, and speech pathologists are essential workers.  The guidance stated:

“Therefore, if an individualized determination is made that a student needs services or supports in-person to maintain their mental/physical health and safety for the purpose of supporting the student in accessing the alternative options for learning being offered (e.g. distance learning), an LEA is not necessarily precluded from providing that service by Governor Newsom’s stay at home order.” (Emphasis added)

On July 17, 2020, the CDPH also issued guidance in an attempt to support local educational agencies regarding the provision of in-person instruction for the 2020-2021 school year.  This guidance provided:

“Schools and school districts may reopen for in-person instruction at any time if they are located in a local health jurisdiction (LHJ) that has not been on the county monitoring list within the prior 14 days. If the LHJ has been on the monitoring list within the last 14 days, the school must conduct distance learning only, until their LHJ has been off the monitoring list for at least 14 days.”

Discussion:
In granting Student’s Motion for Stay Put, OAH concluded that the guidelines issued by CDE under EO N-26-20 did not preclude districts from providing in-person educational services, and the local public health authority in which the District is located took the position that they are “allowing in-person educational services for any activities that cannot be done remotely and are required for students to be able to obtain their education.”  OAH also noted that the District and CCCOE failed to provide any legal authority to support a finding that the COVID-19 pandemic creates an exception to the stay put requirement. 

Specifically, OAH relied on existing case law which states that when a stay put placement cannot be implemented exactly as written on the IEP document, school districts must attempt to replicate the placement that existed at the time the dispute arose as closely as possible, taking into account 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.)  Additionally, the Order acknowledged that Student established that the distance learning plan offered to her was not a comparable program to the program set forth in her IEP given her need for intensive services to access her education. 

OAH ordered the District and CCCOE to provide in-person services to Student, in the duration and intensity described in her IEP, including her 1:1 LVN, speech therapy, physical therapy, and vision services.  The Order did provide that the District and CCCOE could use qualified staff from a non-public agency to provide the services, that the services could be provided in Student’s home, and that they were not required to provide the services on school sites or with school staff.

What Does This Mean:
We anticipate that many of the due process filings you receive in the coming days, weeks or months may also include similar motions for stay put seeking similar relief.   

It is recommended that you review your existing distance learning plans and determine which students are having difficulty accessing distance learning, this may include students who have intensive needs, including but not limited to, those who are medically fragile, have significant behaviors, and moderate/severe students who are unable to access their distance learning.  For those students, consider whether the distance learning plan is comparable to the last agreed upon and implemented IEP.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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