California OAH special education order · March 13, 2019
Order Granting Request for Reconsideration; Denying Motion for Stay Put
OAH Case No. 2018110769 · ALJ Paul H. Kamoroff
OAH reversed its earlier stay put order because the nonpublic school, Beacon, refused to readmit Student, and ordered Los Angeles to provide a similar placement while the case is pending.
Summary
OAH had earlier granted Student's stay put motion and ordered Los Angeles to keep Student at Beacon Day School, a nonpublic school. Los Angeles asked OAH to reconsider, showing with sworn declarations that it had repeatedly tried to re-enroll Student. Los Angeles also signed a master contract with Beacon, but Beacon still refused to readmit Student. Student did not oppose; OAH found these were new facts that made the Beacon placement impossible, denied stay put at Beacon, and ordered Los Angeles to provide a similar placement during the case.
Why it matters
Stay put protects a student's last agreed placement, but if a private or nonpublic school refuses to take the student back, the district only has to provide a comparable placement. Parents should weigh the school's cooperation, and respond to reconsideration motions, if they want to preserve a specific placement.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
- Ms. S. v. Vashon Island (9th Cir. 2003) 337 F.3d 1115
- Knight v. District of Columbia (D.C. Cir. 1989) 877 F.2d 1025
- McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527
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 ON BEHALF OF STUDENT, OAH Case No. 2018110769 v. ORDER GRANTING REQUEST FOR
RECONSIDERATION; DENYING
LOS ANGELES UNIFIED SCHOOL MOTION FOR STAY PUT
DISTRICT.
On November 21, 2018, Parent on behalf of Student filed with the Office of Administrative Hearings a request for due process hearing, naming Los Angeles Unified School District. On December 27, 2018, the undersigned Administrative Law Judge granted Student’s Motion for Stay Put. On March 7, 2019, Los Angeles filed a Motion for Reconsideration, accompanied by sworn declarations. Student did not oppose the motion.
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.)
DISCUSSION
Reconsideration Los Angeles alleges new facts and circumstances in support of its request for reconsideration. Los Angeles does not dispute that Student’s last agreed upon and implemented placement is Beacon Day School, a nonpublic school, per Student’s individualized education program dated January 23, 2018. Rather, Los Angeles alleges that, since OAH’s December 27, 2018 order for Los Angeles to provide Student’s stay put placement at Beacon, Beacon’s conduct has made compliance with the order impossible or impracticable.
On January 9, 2019, upon receiving OAH’s stay put order and following the winter break, Los Angeles promptly contacted Beacon to attempt to readmit Student. Beacon did not respond. On January 11, 2019, Los Angeles contacted Student’s attorney to discuss reimbursement for Student’s placement at Beacon, but Student did not agree to reimbursement. On January 17, 2019, Los Angeles contacted attorneys for Beacon and Student in another attempt to comply with OAH’s stay put order. Student and Beacon did not respond. On January 25, 2019, Los Angeles informed Beacon’s attorney that it would fund Student’s placement at Beacon outside of a master contract and requested for Beacon to re-enroll Student. Beacon refused to re-enroll Student outside of a master contract. On February 13, 2019, Los Angeles agreed to a master contract with Beacon. However, by letter on March 1, 2019, Beacon informed Los Angeles it would not readmit Student.
Accordingly, the alleged facts and circumstances arose after OAH’s December 2018 order and Los Angeles’ request for reconsideration is therefore granted.
Stay Put On reconsideration, the facts alleged indicate that it is impossible or impracticable for Los Angeles to provide Student’s stay put placement at Beacon. A student is not entitled to the identical services pursuant to his or her IEP when those services are no longer possible or practicable. (Ms. S. v. Vashon Island (9th Cir. 2003) 337 F.3d 1115, 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.) In light of Beacon’s non-cooperation with Los Angeles’ attempts to secure Student’s stay put placement there, Student’s motion for stay put is denied.
ORDER
1. Los Angeles’ Motion for Reconsideration is granted.
2. Based on reconsideration of new facts and circumstances, Student’s Motion
for Stay Put is denied.
3. Los Angeles shall provide Student a placement that is similar to Beacon during
the pendency of the due process hearing for this matter.
DATE: March 13, 2019
PAUL H. KAMOROFF
Administrative Law Judge Office of Administrative Hearings