California OAH special education order · March 13, 2019
Amended 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 Beacon Day School refused to readmit Student, making stay put there impossible, and ordered Los Angeles to provide a similar placement during the case.
Summary
In December 2018, OAH ordered Los Angeles to keep Student at Beacon Day School, a nonpublic school, as Student's stay put placement. Los Angeles asked OAH to reconsider. It showed that it had repeatedly tried to re-enroll Student and agreed to a master contract, but Beacon refused to readmit Student. Student opposed, but OAH found these were new facts that arose after its first order, granted reconsideration, and denied stay put at Beacon because that placement had become impossible or impracticable. OAH ordered Los Angeles to provide a similar placement while the due process case is pending.
Why it matters
Stay put does not guarantee a specific private school if that school refuses to take the student back. When the original placement becomes unavailable, the district must offer a comparable placement instead. Families should be ready to show what a truly similar placement looks like.
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. AMENDED ORDER GRANTING
REQUEST FOR RECONSIDERATION;
LOS ANGELES UNIFIED SCHOOL DENYING 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 opposed the motion. 1
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 Student submitted an opposition after 5:00 p.m. on March 12, 2019, which was not considered in OAH’s original order granting reconsideration and denying stay put. The opposition is considered herein, which forms the basis of the Amended Order.
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.
Student’s opposition, accompanied by a declaration from Student’s attorney, states that on March 12, 2019, Beacon’s attorney informed Student’s attorney that it was possible to readmit Student if the master contract was again renegotiated. Student’s argument that Los Angeles’ request for reconsideration should therefore be denied is unpersuasive, as the opposition confirms that new facts and circumstances exist.
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