California OAH special education order · October 21, 2015

Order Granting Request for Reconsideration

OAH Case No. 2015090857 · ALJ Judith Pasewark

OAH reversed its earlier denial and granted stay put at Student's nonpublic school, relying on a new federal court decision that extends stay put to end-of-year transitions from elementary to high school districts.

Granted; stay put granted Stay put

Summary

OAH had first denied Student's request for stay put at the Speech and Language Development Center, a nonpublic school, because Student aged out of his elementary district and moved to a high school district. Student asked OAH to reconsider, citing D.G. ex rel P.G. v. San Diego Unified School District, a September 2015 federal court decision issued after the original ruling. District did not oppose. OAH found the motion timely and the new case closely on point, since it applies Vashon Island stay put protections to any placement dispute upon transfer, as long as continuing the last agreed placement is feasible. OAH granted reconsideration and restored Student's placement and services as set out in his September 26, 2014 IEP.

Why it matters

Students moving from an elementary district to a high school district at the end of the year may keep their last agreed placement, including a nonpublic school, while a placement dispute is pending, provided it is feasible for the new district to continue it. New case law issued after a ruling can be a valid basis for reconsideration.

Key authority cited

Gov. Code, § 11521
Code Civ. Proc., § 1008
Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
D.G. ex rel P.G. v. San Diego Unified School Dist., 2015 WL 5672354
Ms. S. ex rel G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115

Topics

stay put reconsideration district transfer nonpublic school elementary to high school transition

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 ON BEHALF OF STUDENT, OAH Case No. 2015090857 v. ORDER GRANTING REQUEST FOR

RECONSIDERATION

ANAHEIM UNION HIGH SCHOOL

DISTRICT.

On September 30, 2015, the undersigned administrative law judge issued an order denying Student’s request for stay put at the Speech and Language Development Center, a non-public school. Said denial of stay put was based upon Student aging out of his elementary school district and transition to a different high school district. On October 16, 2015, Student filed a motion for reconsideration on behalf of Student. District has not filed an opposition to this motion.

APPLICABLE LAW

The Office of Administrative Hearings 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.)

DISCUSSION AND ORDER

The motion is timely because it was received within a reasonable time after issuance of the order.

Student cites a recent holding in D.G. ex rel P.G. v. San Diego Unified School District, (D.G. ex re. P.G.) 2015 WL 5672354, which was not available at the time of the original motion. In D.G. ex rel P.G. the United States District Court for the Southern District of California held in September 2015, that an ALJ had erred in denying a Student’s motion for stay put. The court issued injunctive relief granting Student’s requested stay put placement. In doing so, the court determined that the protections under Ms. S. ex rel G. v.

Vashon Island Sch. Dist. (Vashon Island) (9th Cir. 2003) 337 F. 3rd 1115, 1134.) do not depend upon a mid-year transfer between school districts, but rather are invoked upon any dispute regarding appropriate placement upon transfer, and are dependent only upon feasiblity of the school district continuing to provide the last agreed upon placement.

On reconsideration, D.G. ex rel P.G is an appropriate anology to Student’s case.

Student’s placement in his non-public school has been part of his individualized education plan since the second grade. Upon completion of the sixth grade, Student transitioned to District, and District offered Student placement in a special day class in a public school.

Parents dispute the special day class placement, and filed this request for due process hearing on Student’s behalf. Neither party presented any argument to suggest that Student could not feasibly remain in his non-public placement pending determination of this matter. Had Student’s complaint disputed a mid-year transfer and placement, the ruling under Vashon Island clearly would have been applicable. The ruling under D.G. ex rel P.G. supports Vashon Island and extends stay put to disputes which occur during end of school year transitions from elementary school districts to high school districts.

Accordingly, Student’s request for reconsideration is granted. Student’s request for stay put is granted and his placement and services at Speech and Language Development Center are restored as implemented in Student’s September 26, 2014 individualized education program.