California OAH special education order · June 28, 2024

Order Granting Request for Reconsideration and Denying Motion for Stay Put

OAH Case No. 2024060681 · ALJ Tiffany Gilmartin

OAH granted Student's reconsideration request based on a newly raised PACE NPS offer but again denied stay put, because Student gave no information showing the new school was not comparable to the prior NPS.

Ruling Stay put

Summary

OAH had denied Student's stay put motion the day before. Student then asked for reconsideration, raising a new fact: Palo Alto offered placement at PACE NPS on June 4, 2024. Palo Alto opposed. OAH granted reconsideration because of the new fact, but found Student was still not entitled to stay in his temporary placement at Jane Lathrop Stanford Middle School. Student only mentioned PACE NPS in passing, so OAH could not decide whether it was comparable to Student's previous NPS, and stay put was denied again.

Why it matters

When a prior placement is no longer available, the district must offer a substantially similar program. A parent who believes the district's replacement school is not comparable must give OAH specific facts about the differences, not just name the school.

Key authority cited

  • Gov. Code, § 11521
  • Code Civ. Proc., § 1008
  • Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
  • Letter to Fischer, 21 IDELR (OSEP 1994)

Topics

stay put reconsideration nonpublic school comparable placement temporary placement

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:

PARENTS ON BEHALF OF STUDENT,

v.

PALO ALTO UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2024060681

ORDER GRANTING REQUEST FOR RECONSIDERATION

AND DENYING MOTION FOR STAY PUT

JUNE 28, 2024

On June 27, 2024, the undersigned Administrative Law Judge issued an order denying Student’s motion for stay put. On June 28, 2024, Student filed a motion for reconsideration of the stay put denial. On June 28, 2024, Palo Alto filed an opposition.

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, generally within ten days. (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

Student alleges in the reconsideration motion that Palo Alto made a separate placement offer of PACE NPS on June 4, 2024. Student presented this new fact, to support reconsideration. Thus, Student’s motion for reconsideration is granted.

Nothing in the request for reconsideration alters the prior legal conclusion that Student is not entitled to remain in his temporary placement at Jane Lathrop Stanford Middle School as stay put. However, when a prior placement becomes unavailable, the local education agency must offer a student a comparable program. Palo Alto must maintain a placement that is substantially and materially the same. Letter to Fischer, 21 IDELR (OSEP 1994). In the motion for reconsideration, Student mentioned for the first time that Palo Alto offered a new non-public school placement. Student correctly asserted that not all non-public schools are similar or appropriate for a student. The mere passing mention of PACE NPS in Student’s motion for reconsideration, however, does not provide sufficient information to reach a determination whether PACE NPS is comparable to Student’s previous NPS. Accordingly, it is not possible to reach a determination of whether this placement was comparable to Student’s previous NPS offer for the purposes of stay put. Nothing precludes Student from arguing PACE is not comparable for stay put purposes to Student’s last placement; however, Student failed to do that in his motion for reconsideration.

ORDER

Student ‘s motion for reconsideration was granted. On reconsideration, Student’s motion for stay put is denied.

IT IS SO ORDERED.

Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings