United States District Court, D. Alaska
ORDER ON MOTION TO STAY PUT
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 127 is Appellees' motion for a stay
put order. The motion has been exhaustively briefed.
Appellees seek an order that would establish that while this
judicial proceeding remains pending, and unless the parties
agree otherwise, M.G. is to remain in his current educational
placement, which is the Perkins School for the Blind. Being
fully advised, the Court GRANTS Appellees'
motion.[1]
In May
2016, the parties worked cooperatively to develop an updated
IEP for M.G. At that time, the parties agreed that
“[t]he nature and severity of [M.G.'s] disability
justifies residential placement as the least restrictive
environment. The location will be administratively
determined.”[2] The parties then disagreed on the
appropriate residential placement. A due process hearing
ensued, which resulted in the Hearing Officer finding that
the Perkins School for the Blind was the appropriate
residential placement for M.G.[3]M.G. has been attending the
Perkins School since May 1, 2017. The current motion arises
because the Hearing Officer's decision ordered ASD to pay
for M.G.'s attendance at Perkins from May 1, 2017 through
February 17, 2018.[4] The Hearing Officer recognized that there
“is no magic number” for how long M.G.
“would need to attend Perkins to achieve the skills he
would need to transition to living as a blind person.”
The decision did not provide for a placement for M.G. after
February 17, 2018. Rather, the Hearing Officer stated
“[i]t is my hope that the parents, Perkins staff and
ASD staff and their consultants can and will before February
17, 2018 collaborate on the evaluation of student to
determine if he is ready to return to ASD or would benefit
from increased time at Perkins.”[5]
The
Hearing Officer's decision is now on appeal by ASD to
this Court. Oral argument on the appeal was held on January
31, 2018.[6] It appears that the parties are making
some progress in completing the evaluations and updating the
IEP, but have not agreed on M.G.'s placement at this
time. On February 19, 2018, ASD served a prior written notice
(PWN) on Parents that indicated its intent to place M.G. in
ASD's ACE/ACT program for interim diagnostic placement to
commence on February 26, 2018.[7] ASD indicated it “has
administratively rejected paying tuition at Perkins after
February 18, 2018 . . . because the District does not believe
Perkins is providing a FAPE based on evaluations and
observations as well as on Perkins' data narratives from
May 1, 2017 to the present.[8] By this motion, Parents seek to
have M.G. remain at Perkins at this time.
The
“stay put” provision of the IDEA, 20 U.S.C.
§ 1415(j) requires a student to remain in his
“current educational placement” during the course
of administrative and judicial proceedings. Section 1415(j)
provides:
Except as provided in subsection (k)(4), during the pendency
of any proceedings conducted pursuant to this section, unless
the State or local educational agency and the parents
otherwise agree, the child shall remain in the then-current
educational placement of the child, or, if applying for
initial admission to a public school, shall, with the consent
of the parents, be placed in the public school program until
all such proceedings have been completed.
In
L.M. v. Capistrano Unified School District, 556 F.3d
900, 902-03 (9th Cir. 2009), the Ninth Circuit discussed this
statute as follows:
The IDEA does not define the phrase “current
educational placement.” Courts have generally
interpreted the phrase to mean the placement set forth in the
child's last implemented IEP. Johnson v. Special
Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir.2002)
(“typically the placement described in the child's
most recently implemented IEP”); Thomas v.
Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th
Cir.1990) (“[the placement at the time of] the
previously implemented IEP”); Drinker v. Colonial
Sch. Dist., 78 F.3d 859, 867 (3d Cir.1996) (“the
dispositive factor in deciding a child's ‘current
educational placement' should be the [IEP] . . . actually
functioning when the ‘stay put' is
invoked.”).
Here, M.G.'s most recently implemented IEP calls for a
residential placement.[9] ASD maintains, however, that the Hearing
Officer “established a multi-phase educational program
that transitioned M.G. home to ASD after February 18,
2018.”[10]Although the Hearing Officer clearly
contemplated the likelihood that M.G. would be transitioned
back to Anchorage at some point after February 18, 2018, the
Court does not read the Hearing Officer's decision to
establish a multi-stage IEP in which M.G.'s placement at
Perkins definitively ended on February 18.[11]
In the
Court's view, the determination of this motion is
controlled by the Ninth Circuit's decision in Clovis
Unified School District v. California Office of
Administrative Hearings, 903 F.2d 635, 639 (9th Cir.
1990). In that case, an administrative hearing officer ruled
in favor of the student, and ordered “the District to
pay for her hospitalization from August 16, 1985, through the
1985-86 school year.” The case was then appealed to the
district court. A principal issue on appeal was described as
“whether the ‘stay put' provisions required
[the school district] to maintain the child [at the hospital]
throughout the course of the court review proceedings which
followed the agency decision that [the hospital] was the
appropriate placement.”[12] In short, the issue was
whether the school district was required to pay for the
placement after the end of the 1986 school year, the ending
date specified in the hearing officer's order. The Ninth
Circuit held that under IDEA's stay put provision, the
school district was responsible for the costs of the
child's placement after that date “regardless of
which party prevails” in the appeal.[13]
The
Court finds that under this controlling precedent,
Appellees' motion for a stay put order at Docket 127 is
GRANTED. During the pendency of the review of the Hearing
Officer's decision, M.G.'s placement, absent
agreement to the contrary, is Perkins School for the Blind.
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Notes:
[1] The Court also GRANTS ASD's motion
on shortened time for leave to file the second affidavit of
Jennifer White at Docket 140, and has reviewed and considered
all of the ...