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OAH's Recent Order Could Have Far Reaching Consequences For Some Students With IEPs

Posted by Paul Hefley | Oct 12, 2020 | 0 Comments

On August 24, 2020, Administrative Law Judge ("ALJ") Cararea Lucier issued an Order granting student's motion for stay put in Pleasanton Unified School District and Contra Costa County Office of Education, OAH Case Number 2020070970. In her motion for stay put, the student requested a stay put order regarding essential related services in her IEP, including a full-time Licensed Vocational Nurse ("LVN") as her one-to-one aide and in-person related services in the areas of speech therapy, occupational therapy, physical therapy, physical therapy, adapted physical education, and specialized vision services.

The Stay Put Doctrine

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, while there is pending litigation. Cal. Ed. Code § 56505 subd. (d). Generally, for the purposes of stay put, the current educational placement is the last agreed upon and implemented IEP placement prior to the dispute arising. If, however, the parties agree to a different placement after litigation has begun, the newly agreed upon placement will be considered stay put.

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.) The stay put placement must be a comparable program for that child.

COVID-19 and California's Educational Guidance

On March 13, 2020, Governor Newsom issued Executive Order N-26- 20, which directed school district operations during public health related school closures. Executive Order N-26-20 directed the California Department of Education ("CDE") and the Health and Human Services Agency to jointly develop guidance ensuring that student with disabilities receive a free and appropriate public education ("FAPE") consistent with their individualized education program under the Individuals with Disabilities Education Act ("IDEA").

On April 9, 2020, CDE issued its guidance for special education during COVID-19. This guidance specifically addressed whether in-person services were precluded while schools were closed during COVID-19. CDE stated that in-person services could continue, adding that "[i]n some exceptional situations, LEAs [local education agencies] may need 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."

Additionally, the CDE later clarified that some service providers are deemed essential workers under Executive Order N-33-20, including nurses and assistants, physical and occupational therapists and assistants, social workers, and speech pathologists. The guidance states:

"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."

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.”

OAH's Order

In the OAH Order, ALJ Lucier points out that the parties agreed the distance-learning plan for the student did not offer her a FAPE. More importantly, the student was able to show that the distance-learning plan was not a comparable program for her, given her need for intensive services to access her education. Accordingly, the ALJ ordered that Pleasanton and Contra Costa provide the student with in-person services in the areas of 1:1 LVN support, speech therapy, physical therapy, and vision services. 

What Does OAH's Order Mean for Other Special-Needs Students?

In short, it means that some students with intensive needs (e.g., medically fragile, significant behavioral needs, and moderate/severe students) might be able to force the school district to provide in-person services in accordance with the student's IEP, even during COVID-19. 

Have Questions?

If you have questions about this or any other IEP-related topic, please contact the law office to speak with an experienced San Diego special education attorney

About the Author

Paul Hefley

Paul is an experienced litigator and trial attorney. He has litigated special education cases in the California Office of Administrative Hearings, the United States District Court for the Southern District of California, and the Ninth Circuit Court of Appeals.

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