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D.S., By and Through His Parents, Clarenore and Greg S. v. Department of Education

August 9, 2012


The opinion of the court was delivered by: Barry M. Kurren United States Magistrate Judge


The Court amends its July 31, 2012, Order to correct typographical errors.

Before the Court is Plaintiff D.S.'s motion for stay put (Doc. # 37.) After careful consideration of the motion, the supporting and opposing memoranda, the attached documentation, and the arguments of counsel at the hearing, the Court GRANTS D.S.'s motion for stay put.


The factual and procedural background of this case is summarized in this Court's April 1, 2011, order affirming in part and reversing in part the Hearings Officer's decision (Doc. # 29.) As summarized in that order, D.S. is a twelve year old boy with autism eligible for services under the Individuals with Disabilities Education Act ("IDEA"). After D.S. was in second grade, his parents enrolled him at Loveland Academy ("Loveland") due to safety concerns. (Id. at 4.) In 2007, D.S.'s parents filed a request for an impartial due process hearing. On July 3, 2008, D.S.'s parents and the DOE entered into a settlement agreement, in which the DOE agreed to pay for D.S.'s tuition and related services at Loveland for the 2007-2008 school year. (Id. at 5.) The DOE then requested dates and times to observe D.S. in order to prepare his 2009 IEP. (Id. at 6-7.) D.S.'s parents would not allow the DOE to observe D.S. until the DOE was current in its payments to Loveland. (Id.)

On February 18, 2009, the DOE held an IEP meeting and developed an IEP for D.S. ("the February 2009 IEP"), which was largely based on 2008 materials (Id. at 9.) The DOE requested more information from D.S.'s parents in preparation for an April 2009 IEP meeting, but D.S.'s parents did not respond to the DOE's request. (Id. at 11.) The April 2009 IEP meeting was held, and no changes were made to the IEP. (Id. at 12.)

D.S.'s parents expressed concerns regarding the April 2009 IEP. On July 16, 2009, D.S.'s parents filed a request for an impartial due process hearing. (Id. at 15.)

On December 28, 2009, the Hearings Officer issued his decision, concluding that D.S. had not proved that the February 2009 and April 2009 IEPs ("2009 IEPs") were procedurally or substantively flawed. (Id. at 16.) D.S. appealed the decision to this Court, and this Court concluded that the 2009 IEPs denied D.S. a Free and Appropriate Public Education ("FAPE"). (Id. at 32.) The Court also concluded that D.S. was entitled to reimbursement for the 2008-2009 and 2009-2010 school years. (Id. at 33.) However, the Court reduced the amount of reimbursement by thirty percent to account for the parents' refusal to schedule observations with the DOE. (Id. at 35-36.) The Court remanded the case to the Hearings Officer for a determination of the amount owed to Plaintiff. (Id. at 38.)

On May 17, 2012, D.S. filed the instant motion for stay put, asserting that the DOE was required to make stay put payments through the pendency of the remand proceedings. (Doc. #37 at 3.) D.S. prayed for an order stating "that the stay-put payments and invoices owed to Plaintiff at Loveland Academy should be included in the final accounting pending the conclusion of this case or in the alternative order that the Defendant DOE owes Plaintiff $201,510.62 in arrearages . . . ." (Id.) The DOE asserts that: 1) stay put does not apply during the pendency of the remand; and 2) "principles of equity" allow the DOE to withhold stay put payments until the overage from the 2008-2009 and 2009-2010 school years has been recouped. (Doc. # 40 at 4-7.) As discussed below, the Court is not persuaded by the DOE's arguments, and GRANTS Plaintiff's motion for stay put.


Section 1415(j) of the IDEA provides that "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 . . . ." (Emphasis added.) 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." Department of Educ., State of Hawaii v. C.B. ex rel. Donna B., 2012 WL 1081073, at *4 (D. Haw. 2012). "Courts have generally interpreted the phrase to mean the placement set forth in the child's last implemented IEP." L.M. v. Capistrano Unified School Dist., 556 F.3d 900, 902 (9th Cir. 2009). Additionally, if a Court or agency has ruled in favor of the parents' private placement, that placement may become the current educational placement for stay put purposes. Id. ("Where the agency or the court has ruled on the appropriateness of the educational placement in the parents' favor, the school district is responsible for appropriate private education costs regardless of the outcome of an appeal.").

As discussed below, the DOE is responsible for D.S.'s private placement through the pendency of the administrative proceedings because it has not disputed that Loveland is his current educational placement, and the due process hearing is ongoing.

I. D.S. Is Entitled To Stay Put From the End of the 2010 School Year to April 1, 2011.

The DOE does not dispute that Loveland was D.S.'s educational placement throughout these proceedings. Additionally, the DOE does not argue that stay put did not apply during the period leading up to the Court's April 1, 2011 order. Because stay put applies during appeals to this Court, the DOE owed stay put until the Court's April 1, 2011 decision.*fn1 See 20 U.S.C. ยง 1415(j) (stay put applies during "any proceedings conducted pursuant to ...

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