California OAH special education order · September 23, 2015
Order Denying Request for Reconsideration and Order Denying Motion for Stay Put
OAH Case No. 2015080687 · ALJ Peter Paul Castillo
OAH denied Student's renewed stay put motion and request for reconsideration because the nonpublic school, not District, ended the placement, and District's offered Point Quest placement was comparable.
Summary
After OAH denied an earlier stay put motion because Land Park Academy declined to keep Student past the 2014-2015 school year, Student asked OAH to reconsider or, in the alternative, filed a new stay put motion. District opposed. OAH denied reconsideration because Student offered no new facts or law. OAH also found no authority allowing it to order a nonpublic school to keep a student after the school properly ends its contract. OAH denied stay put because the differences between Land Park Academy and Point Quest Education, which District offered at an IEP meeting, were not significant enough to make Point Quest non-comparable.
Why it matters
When a nonpublic school itself drops a student, stay put does not force that school to keep the student; the district only has to offer a comparable placement. Parents challenging a substitute placement need evidence of meaningful differences, not minor ones.
Key authority cited
- 20 U.S.C. § 1415(j)
- Ed. Code, § 56505, subd. (d)
- Ms. S ex rel. G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115
- Joshua A. v. Rocklin Unified Sch. Dist. (9th Cir. 2009) 559 F.3d 1036
- Gov. Code, § 11521
- Knight v. District of Columbia (D.C. Cir. 1989) 877 F.2d 1025
People named in the order
- Ronda Jaggers, Director, Point Quest Education
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT/LEGAL GUARDIAN ON OAH Case No. 2015080687
BEHALF OF STUDENT,
ORDER DENYING REQUEST FOR
v. RECONSIDERATION AND ORDER
DENYING MOTION FOR STAY PUT
ELK GROVE UNIFIED SCHOOL
DISTRICT.
On August 17, 2015, Parent/Legal Guardian on behalf of Student filed a motion for stay put with the Office of Administrative Hearings. On August 20, 2015, Elk Grove Unified School District filed an opposition to the motion. On August 21, 2015, OAH denied Student’s motion for stay put because Land Park Academy was no longer available because it determined that it could not meet Student’s needs and informed District that it would not accept Student past the end of the 2014-2015 school year. The August 21, 2015 order provided that Student could file a subsequent motion for stay put if District’s subsequent offer is not a comparable non-public school placement or that District has not made an offer.
On September 16, 2015, Student filed a motion for stay put, or in the alternative a motion for reconsideration. On September 22, 2015, District filed an opposition.
APPLICABLE LAW
OAH will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)
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(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 placement called for in the student's individualized education program, which has been implemented 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.)
The “current educational placement” for the purpose of stay put may also include services administered by the same non-public agency or non-public school if the most recently implemented IEP required the District to provide the services with a specific non- public agency or non-public school. (Joshua A. v. Rocklin Unified Sch. Dist. (E.D. Cal.
August 20, 2007, No. CV 07-01057 LEW(KJMx)) 2007 WL 2389868, ** 2-4, affd. Joshua A. v. Rocklin Unified Sch. Dist. (9th Cir. 2009) 559 F.3d 1036 (Joshua A.).)
Courts have recognized, however, that because of changing circumstances, the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S ex rel. G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35.) A student is not entitled to the identical services pursuant to his or her IEP when those services are no longer possible or practicable. (Ibid., at pp. 1133-1134.) When a student’s “current educational placement”
becomes unavailable, the local educational agency must provide the student with a similar placement in the interim. (See Knight v. District of Columbia (D.C. Cir. 1989) 877 F.2d 1025, 1028; McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527, 1533.)
DISCUSSION
Reconsideration Student alleges no new facts, circumstances, or law in support of the request for reconsideration that warrants this motion being granted. Student’s reliance on Student v.
Paso Robles Joint Unified School District (February 8, 2013) Cal.Offc.Admin.Hrngs, Case No. 2012090342, is misplaced as in that case the school district terminated the contract of the non-public agency to provide services, while in this matter the non-public school, not District, terminated services to Student. Further, nothing in Education Code, section 56366, or the applicable stay put statutes and regulations provide that a certified non-public school or non-public agency must retain a student if it terminates a contract to serve a student with the proper notice if the parent does not consent to the private service provider’s contract termination. None of the other case authority cited by Student established that OAH has the legal authority to order Land Park Academy to retain Student during the pendency of this matter. Accordingly, Student’s motion for reconsideration is denied.
Stay Put Regarding Student’s motion for stay put, Student asserts that District’s offer of Point Quest Education is not comparable to Land Park Academy, or that District had not yet made such an offer in an IEP. On the same date Student filed this motion, District did hold an IEP team meeting and formally offered Point Quest as District’s first placement option, ABC, a non-public school, did not have an opening for Student. While Student did establish some differences between Land Park Academy and Point Quest, those differences are not significant enough to establish that Point Quest is not comparable to Land Park Academy, as the declaration of Ronda Jaggers, the director of Point Quest, establishes how Point Quest will implement Student’s IEP so that she receives comparable services. Accordingly, Student’s motion for stay put is denied.
ORDER
1. Student’s motion for reconsideration is denied.
2. Student’s motion for stay put is denied.
DATE: September 23, 2015
/S/
PETER PAUL CASTILLO
Presiding Administrative Law Judge Office of Administrative Hearings