The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER GRANTING DEFENDANT'S COUNTER-MOTION FOR STAY-PUT RECOGNITION, AND DENYING PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM
Defendant C.B., a minor, seeks an order stating that the Individuals with Disabilities Education Act ("IDEA") requires Plaintiff, the Department of Education of the State of Hawaii ("DOE"), to fund his placement at the private facility that he now attends, Autism Management Services ("AMS"), pursuant to the IDEA's stay put provision.
The DOE initiated this appeal from a decision by an Administrative Hearings Officer ("AHO"). The AHO had determined that C.B. had been denied the Free Appropriate Public Education ("FAPE") required by the IDEA and had ordered the DOE to reimburse C.B. and his parents, Donna and Scott B. ("Parents"), for services at AMS. This court reversed the AHO's decision, ruling that C.B. had been denied a FAPE.
C.B., by and through his parents, brought a counterclaim against the DOE asserting that the DOE is violating the stay put provision of the IDEA, 20 U.S.C. § 1415(j). C.B. then filed a motion seeking an order that the DOE fund C.B.'s placement at AMS during the pendency of appellate proceedings ("Stay Put Motion"). The DOE seeks to dismiss C.B.'s counterclaim and opposes the Stay Put Motion.
Because this court was unable to determine whether the AHO had made the finding necessary to trigger the stay put provision, this court issued a remand to the AHO for the purpose of obtaining clarification on that limited matter. This court asked the AHO whether, in her decision, she had intended to change C.B.'s "current educational placement" when she referred to AMS as an "appropriate program" for C.B. The AHO responded that she had indeed intended to change C.B.'s current educational placement to AMS. The court now denies the DOE's motion to dismiss C.B.'s counterclaim and grants C.B.'s Stay Put Motion.
The IDEA includes a provision that permits a child to "stay put" in the child's current educational placement during the pendency of any administrative or judicial proceeding regarding a due process complaint notice. See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a), (d). The stay put provision, bearing the title "Maintenance of current educational placement," states:
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.
Although the statute itself does not speak of payment or reimbursement, the Ninth Circuit has interpreted the stay put provision as requiring a school district to fund the child's "current educational placement" at a private school, when applicable, during the pendency of any administrative or judicial proceedings under the IDEA. See Clovis Unified Sch. Dist. v. Cal. Office of Admin. Hearings, 903 F.2d 635, 641 (9th Cir. 1990) (per curiam).
The IDEA does not define the phrase "current educational placement." However, the Ninth Circuit has interpreted the phrase to mean "the placement set forth in the child's last implemented [Individualized Education Program]."
L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 902-03 (9th Cir. 2009) ("Capistrano") (citing Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 (9th Cir, 2002); Drinker v. Colonial Sch. Dist., 78 F.3d 869, 867 (3d Cir. 1996); and Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir. 1990)). A post-placement administrative or judicial determination can also define the "current educational placement" of a child. "Where a parent unilaterally changes the placement of a child, but a subsequent administrative or judicial decision confirms that the parental placement is appropriate, . . . the placement becomes the 'current educational placement' for the purposes of the stay put provision." K.D. ex rel. C.L. v. Dept. of Educ., Hawaii, 665 F.3d 1110, 1118 (9th Cir. ...