Department of Education, State of Hawaii v. B. et al

Filing 65

ORDER GRANTING DEFENDANT'S COUNTER-MOTION FOR STAY-PUT RECOGNITION, AND DENYING PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM re 15 ; 22 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/26/12. -- "C.B.s mo tion seeking stay put recognition is GRANTED. The DOE's motion seeking dismissal of C.B.'s counterclaim is DENIED. The DOE is ordered to fund C.B.'s placement at AMS during the pendency of any proceedings relating to the IEP of October 28, 2010, pursuant to 20 U.S.C. § 1415(j)." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DEPARTMENT OF EDUCATION,
STATE OF HAWAI`I,
Plaintiff,
vs.
C.B., by and though his
Parents, DONNA and SCOTT B.,
Defendant.

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CIVIL NO. 11-00576 SOM/RLP
ORDER GRANTING DEFENDANT’S
COUNTER-MOTION FOR STAY-PUT
RECOGNITION, AND DENYING
PLAINTIFF’S MOTION TO DISMISS
DEFENDANT’S COUNTERCLAIM

ORDER GRANTING DEFENDANT’S
COUNTER-MOTION FOR STAY-PUT RECOGNITION, AND
DENYING PLAINTIFF’S MOTION TO DISMISS DEFENDANT’S COUNTERCLAIM
I.

INTRODUCTION.
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.
II.

STATUTORY FRAMEWORK.
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.

2

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.
20 U.S.C. § 1415(j).1
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].”

1

Subsection (k)(4) concerns a child’s placement pending a
hearings officer’s decision.
3

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. 2011) (quoting
Clovis, 903 F.2d at 641).

“However, such a favorable decision

for a parent must expressly find that the private placement was
appropriate.”
III.

Id. (citing Capistrano, 556 F.3d at 903-04).

FACTUAL AND PROCEDURAL BACKGROUND.
C.B. is a five-year-old boy with autism.

See

Administrative Record on Appeal, Petitioners’ Exhibits, at 1.
has received special education since 2009.
on Appeal at 227 (“Decision”) ¶ 4.

Administrative Record

C.B. is now enrolled at AMS,

a private program for children with autism, where he has been
since May 2011.

Id. ¶ 45.

4

He

On October 28, 2010, the DOE prepared the
Individualized Education Program (“IEP”) in issue before this
court.

Id. ¶ 22.

Parents disagreed with the content of that IEP

and requested a due process hearing on April 26, 2011.

The AHO

convened a hearing on July 18, 2011, and issued her decision on
August 30, 2011.

The AHO made numerous factual findings and

concluded that the DOE had violated the IDEA (1) by not
discussing or developing a transition plan, and (2) by failing to
provide Parents with information they had requested about certain
services that the DOE was to provide to C.B.

Decision at 17-18.

She concluded that C.B. had been denied a FAPE.
The AHO then concluded that, under School Committee of
Burlington v. Department of Education of Massachusetts, 471 U.S.
359, 370 (1985), and Seattle School District, No. 1 v. B.S.,
82 F.3d 1493 (9th Cir. 1996), C.B.’s parents were entitled to
reimbursement because AMS had provided an “appropriate program”
for C.B.

Decision at 21.

She ordered the DOE to reimburse

Parents for the cost of C.B.’s tuition at AMS until the DOE
developed an appropriate IEP for C.B.

Id.

The DOE sought a preliminary injunction barring
enforcement of the AHO’s decision ordering the DOE to reimburse
Parents for services provided to C.B. at AMS.
2012, this court denied the DOE’s motion.

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On January 24,

Order Denying

Plaintiff’s Motion for Preliminary Injunction, Jan. 24, 2012, ECF
No. 34.
On May 1, 2012, this court reversed the AHO’s decision,
concluding that C.B. had not been denied a FAPE.

Order Denying

the Decision of the Administrative Hearings Officer, May 1, 2012,
ECF No. 57.

Because reimbursement under 20 U.S.C.

§ 1412(a)(10)(C)(ii) is only warranted when there has been a
denial of a FAPE, this court ruled that the DOE was not required
to reimburse Parents for the costs of C.B.’s attendance at AMS
under that provision.

Id. at 26.

That left the court with the issue of whether the DOE
had to pay for AMS under the stay put provision, other
counterclaim issues having been voluntarily dismissed.

Because

the stay put provision would apply if any administrative or
judicial decision announced that AMS was C.B.’s “current
educational placement,” regardless of whether that administrative
or judicial decision was correct or not, it was important for
this court to understand whether the AHO’s express reference to
AMS as an “appropriate program” had been an indication that the
AHO deemed AMS to be C.B.’s “current educational placement.”
On March 29, 2012, this court asked the AHO to clarify
whether she had meant to treat AMS as C.B.’s “current educational
placement,” which would trigger the application of the stay put
provision.

Order (1) Denying in Part Plaintiff’s Motion to

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Dismiss Defendant’s Counterclaims, and (2) Remanding Stay Put
Issues to Hearings Officer in Connection with Defendant’s
Counter-motion for Stay-put Recognition, Mar. 29, 2012, ECF
No. 52 (“Stay Order”).

For the AHO’s convenience, the court

attached a form (“Remand Form”) to its Stay Order for the AHO’s
use in responding to the question on remand.

The AHO was also

free to provide a written response without using the form.

The

Stay Order also permitted the parties to submit supplemental
briefs after being served with the AHO’s response, if they felt
supplemental briefs were necessary.

The DOE did not timely

challenge the AHO’s authority to respond.
On May 8, 2012, the AHO responded that she had indeed
intended to change C.B.’s current educational placement to AMS.
See AHO Remand Form, May 8, 2012, ECF No. 58.

Upon receiving the

AHO’s response, the DOE for the first time argued that the AHO
had lacked the authority to find that AMS was an appropriate
placement for stay put purposes.

In the alternative, the DOE

argued that AMS was not an appropriate placement.2

On June 18,

2012, after receiving the DOE’s supplemental brief and C.B.’s

2

C.B. argues in his opposition to the DOE’s supplemental
brief that he is entitled to attorneys’ fees if he prevails on
his Stay Put Motion and defeats the DOE’s motion to dismiss his
counterclaim. The court declines to address whether attorneys’
fees are appropriate here because C.B. fails to properly raise
this issue by a motion that complies with Local Rule 54.3.
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response, this court held a continued hearing on the present
motions.

See ECF No. 64.

IV.

ANALYSIS.
Raising issues it failed to raise in its motion to

dismiss C.B.’s counterclaim and in its opposition to C.B.’s Stay
Put Motion, the DOE now argues that the AHO was not authorized to
determine that AMS is an appropriate placement for C.B.

The DOE

bases its argument on C.B.’s failure to seek a change of
placement in his due process hearing request.

In the

alternative, the DOE argues that, even if the AHO had the
authority to change C.B.’s placement, AMS is not an appropriate
placement because it cannot implement C.B.’s IEP.
In its Stay Order, this court indicated that the stay
put provision would apply if the AHO stated that she intended to
change C.B.’s current educational placement.

The court said:

If the AHO meant to treat AMS as C.B.’s
current educational placement, the stay put
provision requires the DOE to pay C.B.’s fees
at AMS from at least the date of the AHO’s
decision until the end of all legal
proceedings relating to the IEP of October
28, 2010, regardless of whether C.B.
ultimately prevails or loses on the merits of
the DOE’s administrative appeal.
Stay Order at 14-15 (citing Clovis, 903 F.2d at 641).

The Remand

Form then expressly asked the AHO if, in her decision, she had
intended to indicate that, “because [she] found that AMS was an
appropriate educational placement for C.B., AMS became C.B.’s

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‘current educational placement’ and C.B.’s parents were therefore
entitled, pursuant to § 1415(j), to have the DOE pay for C.B. to
attend AMS throughout the legal proceedings concerning the IEP of
October 28, 2010.”

Remand Form at 1.

The Stay Order and Remand Form made it clear that this
court’s view was that the AHO had already made express findings,
but that the court needed clarification concerning those
findings.

The court was not requesting new findings.

Having

been served with a copy of the Stay Order and the Remand Form,
the DOE knew that this court was allowing the AHO to clarify what
she had previously found.

If the DOE disagreed with the court’s

clarification request, it should have raised a timely objection.
The DOE never suggested that the Remand Form was improper.
At the continued hearing on the present motions, the
DOE argued that this court must now determine whether the AHO’s
determination that AMS is an appropriate placement is in error.
The DOE says that, absent such a determination by this court, the
DOE will be denied a chance to raise certain issues on appeal.
The DOE fails to clearly articulate how its right to appeal is
threatened.

The DOE appears to take the position that, by

filling out the Remand Form, the AHO made a new finding that AMS
is an appropriate placement for stay put purposes, and that it
must challenge the new finding here before it can challenge the
AHO’s finding on appeal to the Ninth Circuit.

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The court disagrees that, in answering this court’s
question on remand, the AHO made a new finding.
clarified her previous finding.

Rather, she

On remand, this court asked the

AHO if she had actually found that AMS was an appropriate
placement for stay put purposes.

She was not asked to make any

finding that she had not already made.
Moreover, the DOE conceded at the hearing that a ruling
by this court on whether the AHO properly found that AMS is an
appropriate placement for stay put purposes would have no effect
on whether C.B. is entitled to stay put protection.

As explained

above, the stay put provision requires that a child remain in his
or her “current educational placement” during the pendency of
appellate proceedings relating to the IEP in issue.
U.S.C. § 1415(j).

See 20

A placement becomes a child’s “current

educational placement” once an administrative hearings officer
determines that a parent’s unilateral placement is “appropriate,”
not when a reviewing court agrees that such a placement is
appropriate.
at 641.

See K.D., 665 F.3d at 1118; Clovis, 903 F.2d

The stay put provision operates as an “automatic

injunction”; it requires “no specific showing on the part of the
moving party.”

Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d

1036, 1040 (9th Cir. 2009).

The court thus declines to review

the AHO’s finding that AMS is an appropriate placement for stay
put purposes.

10

The essence of the DOE’s argument appears to be that
the IDEA requires a child to seek a change of placement in his or
her due process hearing request before an administrative hearings
officer can effectively change his or her placement for stay put
purposes.

This court has already rejected the DOE’s argument

that the AHO could only change C.B.’s “current educational
placement” if Parents actually asked the AHO for such a change.
See Stay Order at 18.

The Ninth Circuit has held that a change

of a child’s “current educational placement” is implied when a
parent unilaterally changes a child’s placement and an
administrative decision confirms that such a placement is
appropriate.

See K.D., 665 F.3d at 1118 (quoting Clovis, 903

F.2d at 641); Capistrano, 556 F.3d at 903 (referring to a
reimbursement order as creating a current educational placement
“implied by law” (citing Clovis, 903 F.2d at 641)).

An

administrative decision confirming that a unilateral placement is
appropriate “constitute[s] an agreement by the State to the
change of placement.”

K.D., 665 F.3d at 1118 (quoting Clovis,

903 F.2d at 641) (alteration in original).

Cf. Bd. of Educ. of

the Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 484 (2d
Cir. 2002) (holding that an order granting reimbursement based on
a finding that an IEP is inappropriate constitutes a change in a
child’s “current educational placement” for stay put purposes).

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If, as the DOE contends, the IDEA requires a child to
expressly ask for a placement change in a due process hearing
request, there would have been no reason for the Ninth Circuit to
rule that a change is implied when an administrative decision
agrees that a unilateral placement is appropriate.

Because the

AHO found that AMS is C.B.’s current educational placement for
purposes of the stay put provision, the court grants C.B.’s Stay
Put Motion, and denies the DOE’s motion to dismiss C.B.’s
counterclaim.
V.

CONCLUSION.
C.B.’s motion seeking stay put recognition is GRANTED.

The DOE’s motion seeking dismissal of C.B.’s counterclaim is
DENIED.

The DOE is ordered to fund C.B.’s placement at AMS

during the pendency of any proceedings relating to the IEP of
October 28, 2010, pursuant to 20 U.S.C. § 1415(j).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 26, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Dep’t. of Educ., State of Hawaii v. C.B.,; Civil No. 11-00576 SOM/RLP; ORDER GRANTING
DEFENDANT’S COUNTER-MOTION FOR STAY-PUT RECOGNITION, AND DENYING PLAINTIFF’S MOTION TO
DISMISS DEFENDANT’S COUNTERCLAIM

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