The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR STAY PUT
Before the Court is Plaintiffs Rachel L. ("Mother"), individually and on behalf of her minor child, Julia L.'s ("Student," both collectively "Plaintiffs") Motion for Stay Put ("Motion"), filed on August 24, 2012. Defendants the Department of Education, State of Hawaii, and Kathryn Matayoshi, in her official capacity as Superintendent of the Hawaii Public Schools ("Defendants" or "the DOE"), filed their memorandum in opposition on October 5, 2012, and Plaintiffs filed their reply on October 19, 2012. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Plaintiffs' Motion is HEREBY GRANTED IN PART with respect to Plaintiffs' request for reimbursement for Student's placement at Pacific Autism Center and DENIED in all other respects for the reasons set forth below.
The Court and parties are familiar with the factual and legal background in this matter. In its September 25, 2012 Order ("9/25/12 Order"*fn1 ), the Court affirmed the Administrative Hearings Officer's ("Hearings Officer") Findings of Fact, Conclusions of Law and Decision ("Decision"*fn2 ) dismissing Plaintiffs' Request for Impartial Due Process Hearing ("RIH"), pursuant to the Individuals with Disabilities Education Act of 2004 ("IDEA"), 20 U.S.C. § 1400 et seq. As set forth in the 9/25/12 Order:
At the time in question, Student was twelve years old and in the sixth grade at Redemption Academy. Student is eligible for special education and related services under the IDEA in the category of autism. Student's former home school was Kaelepulu Elementary School ("Former Home School"), and her current home school is Kailua Intermediate School ("Current Home School"). Student attended Redemption Academy from 8:00 a.m. until 1:00 p.m. and received services from Pacific Autism Center from 1:15 p.m. until 3:30 p.m. 2012 WL 4472263 at *1. Plaintiffs filed their RIH on June 14, 2011, the Hearings Officer issued his Decision on November 29, 2011, and Plaintiffs appealed the Decision to this Court on December 12, 2011.
Plaintiffs ask the Court to order the DOE to (1) immediately pay for Student's special education and related services at Pacific Autism Center from December 1, 2011 through May 9, 2012; and (2) resume Student's stay-put payments through the conclusion of these proceedings and any appeal.
Plaintiffs argue that the DOE refused to observe stay put, even though it stated in a November 2, 2011 letter ("11/2/11 Letter") to Pacific Autism Center that Student was placed there pursuant to a prior stay-put order. [Mem. in Supp. of Motion at 2 (citing Exh. 2 (11/2/11 Letter)).] According to Plaintiffs, the DOE has refused to pay for Student's program since the Hearings Officer issued his Decision, and that Student was forced to leave Pacific Autism Center in May 2012 "because of nonpayment."*fn3 [Id.]
Plaintiffs argue that stay put is automatic through the pendency of any administrative or judicial proceedings, including appeals. [Id. at 4 (citing 20 U.S.C. § 1415(j)).] They assert that Pacific Autism Center is Student's "current placement" going forward for stay-put purposes, as evidenced by the 11/2/11 Letter, and remains the "last agreed upon educational placement." [Id. at 5.] Plaintiffs contend that the DOE violated the IDEA when it stopped making stay-put payments in December 2011, and unilaterally changed Student's placement. [Id. at 5-6.]
II. DOE's Memorandum in Opposition
The DOE argues in its opposition that Plaintiffs are not entitled to relief under the IDEA's stay-put provision. It contends that Plaintiff's appeal of the Decision did not mount a substantive challenge to the contents of the individualized education program ("IEP"), "except for a baseless argument that Student's transition plan should have been incorporated into the IEP, which was clearly not required." [Mem. in Opp. at 2.]
According to the DOE, it paid Student's tuition at Pacific Autism Center throughout the pendency of the underlying administrative proceeding pursuant to stay put, but stopped paying following the November 29, 2011 Decision in its favor. [Id. at 7 (citing Declaration of Aletha Sutton ("Sutton Decl.") at ¶¶ 5-7).] It argues that Plaintiffs are not entitled to payments after May 9, 2012 because there is no basis for finding that Variety School, or any other private school, is Student's "current educational placement." [Id. at 16-17.]
It points to the Court's holding in the 9/25/12 Order affirming the Hearings Officer's finding that Mother's failure to cooperate with the school in scheduling the IEP meeting caused the meeting to be held on a date when the parents claimed they were unable to attend. According to the DOE, Plaintiffs are not entitled to stay put because they caused the procedural violation complained of, and because the appeal did not bring a non-frivolous substantive challenge to the IEP. It urges the Court to follow the district court's ...