California OAH special education order · November 27, 2017

Order Granting Motion for Reconsideration of Student's Motion for Stay Put; Affirming Order Denying Motion for Stay Put; and Denying Motion to Set Aside Order Denying Stay Put

OAH Case No. 2017090155 · ALJ Christine Arden

OAH reconsidered but again denied Student's stay put request for the Ontario-Montclair orthopedic impairment preschool program, because the SELPA agreement does not let District place students there without OMSD's agreement.

Ruling Stay put

Summary

Student asked OAH to reconsider its September 25, 2017 order denying stay put, or to set that order aside, after obtaining a Memorandum of Understanding between Ontario-Montclair School District (OMSD) and the West End SELPA through a public records request. OAH granted reconsideration because the MOU was new information that was not before it when stay put was first denied. On the merits, OAH again denied stay put. The MOU sets several conditions, including OMSD's consent, before a SELPA member district can place a student in an OMSD program, so District could not simply place Student in OMSD's orthopedic impairment program at Moreno School. OAH denied the motion to set aside because Student's arguments about the comparability of District's offered class went to the merits.

Why it matters

When a student's last placement was run by an agency that has left the SELPA, stay put may not be available there unless agreements show the district can place the student without that agency's consent. Public records requests can turn up new documents that justify reconsideration, but the documents must actually support the argument.

Key authority cited

Gov. Code, § 11521
Code Civ. Proc., § 1008
Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192

People named in the order

Anne Ingulsrud, District declarant

Topics

stay put reconsideration selpa memorandum of understanding public records request preschool 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:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2017090155 v. ORDER GRANTING MOTION FOR

RECONSIDERATION OF STUDENT’S

CHINO VALLEY UNIFIED SCHOOL MOTION FOR STAY PUT;

DISTRICT. AFFIRMING ORDER DENYING

MOTION FOR STAY PUT; AND

DENYING MOTION TO SET ASIDE

ORDER DENYING STAY PUT

On September 25, 2017, the undersigned administrative law judge issued an order denying Student’s Motion for Stay Put. On October 26, 2017, Chino Valley Unified School District (District) filed a Supplemental Declaration of Anne Ingulsrud in Support of District’s Opposition to Student’s Motion for Stay Put, after Student’s Motion for Stay Put had already been denied. District filed its Supplemental Declaration for the purpose of clarifying the Declaration of Anne Ingulsrud dated September 12, 2017, which District filed in support of its initial Opposition to Student’s Motion for Stay Put. District attached to Ms. Ingulsrud’s Supplemental Declaration a Memorandum of Understanding between Ontario-Montclair School District (OMSD)1 and the West End SELPA (WESELPA)2 dated April 28, 2017 (the

MOU).

On November 3, 2017, Student filed a Motion for Reconsideration of Student’s Motion for Stay Put or Motion to Set Aside Order Denying Stay Put. On November 8, 2017, District filed an Opposition to the Motion for Reconsideration of Student’s Motion for Stay Put or Motion to Set Aside Order Denying Stay Put. On November 9, 2017, Student filed a Reply to District’s Opposition to Motion for Reconsideration of Student’s Motion for Stay Put or Motion to Set Aside Order Denying Stay Put.

OMSD provides the Orthopedic Impaired Preschool Program at Moreno School, which Student attended in the 2016-2017 school year. OMSD previously was a member of the WESELPA, but exited it at the end of the 2016-2017 school year to form its own special education local plan area.

District is a member of the WESELPA.

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

Motion for Reconsideration Here, Student’s Motion for Reconsideration is based upon Student’s contention that reconsideration of Student’s Motion for Stay Put is justified because Student discovered new relevant information in the MOU after Student’s motion for stay put was denied.3 Student obtained the MOU shortly after October 20, 2017, pursuant to OMSD’s response to Student’s public records request. Student’s Motion for Reconsideration of Student’s Motion for Stay Put is justified because the MOU was not before OAH when Student’s Motion for Stay Put was initially denied on September 25, 2017. Accordingly, Student’s Motion for Reconsideration is granted.

Reconsideration of Motion for Stay Put Student argues that, pursuant to the terms of the MOU, District may place Student in the orthopedic impairment program operated by OMSD at Moreno School, even though OMSD is no longer a member of the WESELPA. However, the MOU does not allow members of the WESELPA to unilaterally and unconditionally place their students in OMSD’s special education programs. The MOU expressly states multiple conditions which must be satisfied before a member of the WESELPA may offer a student a placement in an OMSD program, including OMSD’s agreement to such placement. Because the MOU precludes District from unilaterally and unconditionally placing its students in OMSD’s special education programs, Student’s argument that the orthopedic impairment program operated by OMSD at Moreno School is available to Student as stay put during the pendency of this action is inaccurate. Therefore, after reconsideration, Student’s Motion for Stay Put is denied. Accordingly, OAH’s order dated September 25, 2017, denying Student’s Motion for Stay Put is affirmed.

Student’s attorney served a request for public records on OMSD on October 13, 2017 and a second identical request for public records on WESELPA on October 16, 2017.

Motion to Set Aside Order Student argues that OAH’s order denying Student’s Motion for Stay Put should be set aside because it was a mistake, inadvertence, or excusable neglect on the ALJ’s part to find that Student had failed to establish that the program which District offered to Student at the Walnut Avenue Elementary School preschool moderate-to-severe class as stay put was not comparable to Student’s former placement in the Orthopedic Impairment Preschool Program at Moreno School. Student’s arguments go to the merits of the case. For the reasons discussed above, OAH’s Order denying Student’s request for stay put at OMSD was affirmed. Therefore, Student’s Motion to Set Aside the Order Denying Stay put is denied on the same grounds.

ORDER

1. Student’s Motion for Reconsideration of Student’s Motion for Stay Put is

granted.

2. After reconsideration, Student’s Motion for Stay Put is again denied and the

Order Denying Motion for Stay Put issued by OAH on September 25, 2017, is hereby affirmed.

3. Student’s Motion to Set Aside Order Denying Stay Put is denied.

IT IS SO ORDERED.

DATE: November 27, 2017

CHRISTINE ARDEN

Administrative Law Judge Office of Administrative Hearings