K. et al v. Department of Education, State of Hawaii
ORDER GRANTING PLAINTIFFS MOTION FOR STAY PUT 9 . Signed by JUDGE ALAN C KAY on 08/22/2012. (eps) -- Having concluded that Loveland Academy is Sam K.'s then-current educational placement, the Court grants Plaintiffs' Motion for Stay Put in order to maintain the status quo during the pendency of the instant appeal, and in order to uphold the mandates of the IDEA and the significant policy concerns for which it was enacted. 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
SAM K., by and through his
PARENTS, DIANE C. and GEORGE K., )
DEPARTMENT OF EDUCATION, State
Civ. No. 12-00355 ACK-BMK
ORDER GRANTING PLAINTIFFS’ MOTION FOR STAY PUT
This case comes before the Court on Plaintiffs’ Motion
for Stay Put under the Individuals with Disabilities Education
Act (“IDEA”) and in accordance with Rule 7(b) of the Federal
Rules of Civil Procedure and 20 U.S.C. § 1415(j).
Prior to initiation of the instant action, Parents
filed a request for an impartial hearing on behalf of Sam K. and
his parents on or about October 21, 2011.
Mot. for Stay Put, Ex. 5.)
(See Mem. in Supp. of
In his May 24, 2012 Findings of Fact
and Conclusions of Law, the Hearings Officer determined, among
other things, that Sam K.’s placement at Loveland Academy was an
appropriate placement for the 2010-2011 school year, however
Plaintiffs were not entitled to reimbursement due to the
applicable statute of limitations.
Id. at Ex. 5, p. 33.
Hearings Officer further stated that he had no jurisdiction to
make an order whether or not Stay Put was applicable to any time
period during which the DOE allegedly failed to make outstanding
Id. at 32.
On June 20, 2012, Sam K. (“Student”) filed a complaint
by and through his parents, Diane C. and George K (collectively,
“Parents”), against defendant Department of Education, State of
Hawaii (hereinafter, “Defendant” or “DOE”).
(Doc. No. 4).
Through their Complaint, Plaintiffs ask the court to review the
records of the administrative proceedings in which the Hearings
Officer concluded that Plaintiffs’ claim for reimbursement for
Student’s placement at a private school for the 2010-11 school
year was barred by the provisions of H.R.S. § 302A-443(a)(2).
Compl. ¶¶ 9-11.
Plaintiffs seek an order affirming in part and
reversing in part the Hearings Officer’s May 24, 2012 decision,
and compelling Defendants to reimburse Loveland Academy for
Id. at 4.
On June 27, 2012, Plaintiffs filed a Motion for
Judgment as a Matter of Law for Stay Put, as well as a memorandum
in support of their motion and various declarations and exhibits.
(Doc. No. 9.)
Plaintiffs supplemented their motion with an
errata on June 29, 2012.
(Doc. No. 11.)
Defendants filed an Answer to the Complaint on July 19,
(Doc. No. 18.)
Subsequently, on July 23, 2012, Defendants
filed a memorandum in opposition to Plaintiffs’ Motion for Stay
(Doc. No. 19.)
Plaintiffs filed a Reply on July 30, 2012.
(Doc. No. 20.)
Plaintiffs bring this action as a continuation of
litigation that first began in 2003, when the parents of Sam K.,
a disabled student, sought: (1) to have Sam K. deemed eligible
for special education and related services; and (2) to obtain
payment for those educational services.
for Prelim. Inj. at 1.)
(Mem. in Supp. of Mot.
The issues raised in the instant action,
as well as the parties, are substantially identical to two prior
cases before this Court:
(1) D.C. v. Dep’t of Educ., Civ. No.
05-00562 Ack-BMK, Order Remanding Administrative Decision (Doc.
No. 25, June 23, 2006) (wherein the Court ordered the Hearings
Officer to determine Sam K. eligibility under the IDEA) (“D.C.”);
and (2) D.C., et al. v. Dep’t of Educ., 550 F. Supp. 2d 1238 (D.
Haw. 2008) (wherein the Court determined that Sam K. had been
denied a Free Appropriate Public Education (“FAPE”))
(hereinafter, “D.C. II”).1/
Id. at 2.
Both D.C. and D.C. II were suits brought by Sam K.’s
parents, D.C. and G.K., as guardians ad litem on behalf of Sam
In D.C. II, the Court determined that the DOE had not
timely offered Sam K. an appropriate IEP, and also concluded that
his placement at the private school was bilateral rather than
unilateral, and that because the placement was bilateral the DOE
was required to pay for Sam K.’s special education and related
services at Loveland Academy.
Id. at 3 (citing 550 F. Supp. 2d
Plaintiffs allege that notwithstanding this Court’s
ruling, the DOE has continued to refuse to timely provide Sam K.
with an appropriate IEP or to pay for special education and
related services at Loveland Academy.
Id. at 3.
Parents again filed requests for Due Process hearings pursuant to
20 U.S.C. § 1415 on March 10, 2010, seeking tuition reimbursement
for the 2007-2008, 2008-2009, and 2009-2010 school years,
including extended school years (“ESY”).
the DOE allegedly did not timely offer Sam K. an IEP or FAPE for
the 2010-11 school year, Parents filed a fourth request for Due
Process hearing regarding that failure.
Following the filing of the fourth request for Due
Process, on May 18, 2010 Parents and the DOE entered into a
settlement agreement pursuant to which the DOE agreed to pay for
Sam K.’s special education and related services at Loveland for
K., an incompetent minor.
the 2007-2008, 2008-2009, and 2009-2010 school years, including
Id. at Ex. 3.
The settlement agreement did not cover the
2010-2011 school year, and the DOE did not have an IEP in place
for Student prior to the beginning of the 2010-2011 school year.
(Mem. in Supp. of Mot. for Stay Put, Ex. 5 at 6.)
Sam K. has attended Loveland continuously since 2003.
On October 21, 2011, Parents filed a fifth request for Due
Process because the DOE failed to timely provide an appropriate
After four days of hearing, on May 24, 2012, the
Hearings Officer ruled in his Decision that Sam had been denied a
FAPE by the DOE, and that Loveland Academy was an appropriate
Id. at Ex. 5 p. 33.2/
However, the Hearings Officer
refused to order reimbursement for the 2010-2011 school year,
concluding that Sam K.’s request for same was time-barred
The Court notes that in one of his earlier conclusions
the Hearings Officer appears to make a contradictory
determination that Sam K.’s placement at Loveland for the 20102011 school year was unilateral (May 24, 2012 Findings of Fact
and Conclusions of Law, Mot. for Stay Put., Ex. 5 at 27-30);
notwithstanding his ultimate decision that “Private School was an
appropriate placement for Student for the 2010-2011 school year,”
and thus bilateral. Id. at 33. Moreover, the Hearings Officer
concluded that: (1) “the DOE did predetermine placement to be
appropriate at DOE Proposed Placement in advance and without any
significant parental input” and “the IDEA is violated when the
DOE predetermines placement for Student before the IEP is
developed” (id. at 21, 22); (2) “The evidence regarding DOE
Proposed Placement demonstrated that placement of Student there
was ill-advised, inappropriate, and potentially disastrous to
Student and his education . . . and denied Student FAPE” (id. at
25); and (3) “Private School is an appropriate placement for
purposes of reimbursement” (id. at 26).
pursuant to H.R.S. § 302A-443(a)(2).
this ruling in the Complaint in the instant action.
Because the DOE has refused to pay for Sam K’s program
at Loveland since August 2010, Parents have been informed that
Sam K. will be forced to leave Loveland imminently.4/
Motion For Stay Put
A motion for stay put relief functions as an
“automatic” preliminary injunction; the moving party need not
establish the traditional factors necessary to obtain preliminary
Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036,
1037 (9th Cir. 2009) (citation omitted).
injunction standard, however, only applies when the court
H.R.S. § 302A-443(a)(2) provides the statute of
limitations for requesting an impartial due process hearing in
the context of a unilateral placement, and provides that such a
request must be made within one hundred and eighty (180) calendar
days of a unilateral special education placement where the
request is for reimbursement of the costs of placement; whereas
the statute of limitations involving a bilateral placement is two
years. H.R.S. § 302A-443(a)(1). The Court notes that in
reaching his conclusion that Plaintiffs’ request for
reimbursement was time-barred under this provision, the Hearings
Officer apparently had concluded that Sam K.’s placement was
unilateral rather than bilateral. See Mem. in Supp. of Mot. for
Stay Put, Ex. 5 at 27-30.
Specifically, in its Motion for Stay Put filed on June
29, 2012, Plaintiffs asserted that Parents were informed that Sam
K. would have to leave Loveland “at the end of this month.” Id.
considers a stay put motion; it does not apply to a preliminary
injunction motion that affects a stay put invocation, but is not
itself the invocation.
N.D. v. Haw. Dep't of Educ., 600 F.3d
1104, 1112 (9th Cir. 2010) (holding that the district court did
not err in applying the traditional preliminary injunction
Plaintiffs’ Motion for Stay Put
In their Motion for Stay Put, Plaintiffs assert that
Sam K. has been continuously placed at Loveland since 2003
pursuant to a Hearings Officer’s decision, this Court’s orders,
and a 2010 settlement agreement with the DOE.
of Mot. for Stay Put at 7.)
(See Mem. in Supp.
Accordingly, Plaintiffs contend,
Loveland Academy remains the “last agreed upon educational
placement” and is therefore the “then current educational
placement” for purposes of Stay Put.
Id. at 7-8.
state that the Stay Put relief that Plaintiffs seek functions as
an “automatic” preliminary injunction, such that Plaintiffs need
not establish the traditional factors necessary to obtain Stay
Id. at 6 (citing Joshua A., 559 F.3d at 1037).
Plaintiffs assert that the DOE has failed to make Stay
Put payments from the date of Plaintiffs’ request for a Due
Process hearing on October 21, 2011 through the present, and
argue that Stay Put should continue throughout the proceedings
currently before this Court, as well as throughout any subsequent
appeal or remand and irrespective of whether Plaintiffs
ultimately prevail on the merits.
Id. (citing Joshua A., 559
F.3d at 1037, Clovis, 903 F.2d at 641).
Plaintiffs contend that by refusing to make Stay Put
payments, Defendant has violated the IDEA and jeopardized Sam
K.’s receipt of special education and related services at
Id. at 9.
Further, Plaintiffs state that the
DOE’s failure to make Stay Put payments constitutes a unilateral
placement, which is prohibited by the IDEA.
Id. at 8-9.
Defendants’ Opposition Memorandum
Although Defendant concedes that pursuant to the
written settlement agreement dated May 3, 2010, the DOE agreed to
pay for Sam K’s tuition at the private school through the end of
the 2009-2010 school year including ESY, Defendant states that
the settlement agreement did not cover the 2010-2011 school year,
nor did it call for Sam K.’s “placement.”
(Opp. Mem. at 3.)
Instead, Defendant asserts, the settlement agreement only
required tuition reimbursement.
Accordingly, it is
Defendant’s position that although the settlement agreement
established Sam K.’s placement as bilateral through the end of
the 2009-2010 school year including ESY, it did not establish Sam
K.’s placement at Loveland as bilateral for the 2010-2011 school
Id. at 4.5/
Defendant argues that any implied decision by a
Hearings Officer that Sam K.’s private placement was appropriate
for the 2005-2006 school year cannot be “stretched” into an
implication that the same placement is appropriate five years
later, when Sam K. is now 16 year old and of mid-high school age.
Defendant argues that the May 2010 settlement agreement
failed to cause a bilateral placement in Student’s private
placement at Loveland, and accordingly Plaintiffs unilaterally
placed Sam K. at Loveland Academy for the 2010-2011 school year.
Id. at 12.7/
Consequently, Defendant argues that because
Loveland is not Sam K.’s then-current educational placement,
Plaintiffs are not entitled to Stay Put for Loveland tuition
payments during the pendency of this appeal.
Defendant also states that at the time of the settlement
agreement, it was Defendant’s position that Loveland Academy was
not an appropriate placement for Sam K. after the 2009-2010
school year, although the DOE had agreed to pay for tuition
reimbursement as part of the settlement agreement. Id. at 16.
Defendant also argues that there was nothing in this
Court’s 2008 decision in D.C. II that made it applicable to
subsequent school years, and the Ninth Circuit has since
clarified the law in K.D. Id. at 6.
The Court observes that the Hearings Officer actually
stated that the May 3, 2010 settlement agreement did establish
Sam K.’s placement at Loveland as bilateral through the end of
the 2009-2010 school year, including ESY, but that it did not
establish Sam K.’s placement as bilateral for the 2010-2011
school year, a year that was not covered under the terms of the
settlement agreement. See Hearings Officer’s Findings of Fact
and Conclusions of Law, Mot. for Stay Put., Ex. 5 at 28.
Defendant argues that the Ninth Circuit’s recent
decision in K.D. called into question any continued application
of this Court’s decision in D.C. II.
Id. at 16.
emphasizes that in K.D., the Ninth Circuit held that the private
school (also Loveland Academy) was not the student’s Stay Put
placement based upon a 2007 settlement agreement (that plaintiffs
stated was not time limited), focusing on the fact that the
settlement agreement referred to “payment” and did not discuss
the student’s “placement,” and concluding that the settlement
agreement did not operate to change the placement from unilateral
Id. at 18.
In K.D., the Ninth Circuit held that
the plaintiffs were not entitled to Stay Put relief because the
DOE only agreed to pay tuition for a limited time (an earlier
school year) under the terms of the applicable settlement
agreement, and never affirmatively agreed to place the student at
665 F.3d at 1121.
Further, Defendant argues that Plaintiffs are not
entitled to Stay Put because they failed to properly appeal the
Hearings Officer’s administrative decision within the designated
30-day filing period.
Defendant asserts that Plaintiffs
Specifically, Defendant asserts that Plaintiffs’ claim
for reimbursement, which was filed on October 21, 2011, was
untimely and precluded by H.R.S. 302A-443(a)(2) because it was
more than 180 calendar days after the DOE’s March 9, 2011 letter
wherein the DOE confirmed that the IEP process was completed with
an offer of FAPE. Id. at 8-9.
have failed to explain how they are entitled to Stay Put status
when a clear violation of the applicable statute of limitations
has already been found, and argue that an order granting Stay Put
would undermine the purpose of the statute of limitations.
In their Reply, Plaintiffs underscore that Stay Put is
not a merits determination, and reiterate that once filed, a
motion for stay put relief should function as an “automatic”
Reply at 2-3 (citing Joshua A., 559 F.3d at 1037)
This is the case, Plaintiffs contend,
irrespective of which party ultimately prevails on the merits.
Id. at 3.
Plaintiffs also assert that the cases cited by
Defendant are inapposite because Loveland Academy is, in fact,
Sam K.’s “current educational placement.”
contend that K.D., wherein the Ninth Circuit denied Stay Put
relief, is distinguishable from the instant case because unlike
here, “there was no favorable agency or district court decision
agreeing with [the student’s] initial unilateral placement.”
at 4 (citing K.D., 665 F.3d at 1118).
In the instant action, a
Hearings Officer determined on two separate occasions that
Loveland was Sam K’s placement, and Plaintiffs submit that no
intervening decision has altered Sam K.’s placement.
Id. at 4-
Significantly, Plaintiffs also note that the Hearings
Officer in his May 24, 2012 decision found and concluded that
Loveland was an “appropriate” placement for Sam K. for the 20102011 school year.
Id. at 5-6 (citing Ex. 5 at 33.)
also notes that its April 10, 2008 Order found Loveland to be the
appropriate placement for Sam K.
D.C. II, 550 F. Supp. 2d at
Further, Plaintiffs argue that the fact that the
Hearings Officer ruled that Plaintiffs were not entitled to
reimbursement based upon the statute of limitations under H.R.S.
§ 302A-443(a)(2) does not impact the fact that Sam K’s placement
was and continues to be at Loveland Academy.
Additionally, Plaintiffs contend that counter to
Defendant’s assertion, the rules of Stay Put are legal and not
equitable, and seek to prevent exactly what the DOE is doing in
the instant case:
trying to force a change in Sam K.’s placement
by refusing to pay for services.
Id. at 7.
dismiss Defendant’s argument that Plaintiffs should be barred
from obtaining Stay Put relief because they failed to raise this
issue in their Complaint.
This Motion for Stay Put,
Specifically, Plaintiffs note that there have been two
favorable agency or district court decisions (in 2006 and 2008)
regarding Sam K.’s placement at Loveland Academy, pursuant to
which Plaintiffs contend that Loveland became Sam K.’s “current
educational placement” for purposes of the Stay Put provision.
Reply at 4.
Plaintiffs argue, “[is] not based on the merits which form the
basis of Plaintiffs’ appeal, but a procedural requirement to
preserve the status quo.”
The IDEA ensures that “all children with disabilities
have available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for further education,
employment and independent living.”
20 U.S.C. § 1400(d)(1)(A).
Additionally, the IDEA “aims to ensure that handicapped children
are provided public education appropriate for their needs, and
are not ‘left to fend for themselves in classrooms designed for
education of their non-handicapped peers.’”
The IDEA’s Stay Put provision, entitled “Maintenance of
current educational placement,” 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.
20 U.S.C. 1415(j).
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)
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 859, 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."
(quoting Clovis, 903 F.2d at 641).
K.D., 665 F.3d at 1118
"However, such a favorable
decision for a parent must expressly find that the private
placement was appropriate." Id. (citing Capistrano, 556 F.3d at
The instant motion does not seek a determination on the
merits, but rather it is a limited request that the DOE make Stay
Put payments during the pendency of the current appeal.
central issue in determining Plaintiffs’ entitlement to Stay Put
is whether Loveland is Sam K’s “current educational placement”
within the meaning of 20 U.S.C. § 1415(j).
See K.D., 665 F.3d at
Defendant relies heavily upon the Ninth Circuit Court
of Appeals’ recent decision in K.D., 665 F.3d at 1118.
dispute in that case centered on the effect, if any, of a
settlement agreement on the student’s educational placement, in
determining the student’s entitlement to Stay Put relief.
The plaintiff argued that he was placed at the private school
(Loveland Academy) by a March 2007 settlement agreement, and
therefore Loveland remained his “current educational placement”
because he continued to attend school and never accepted any of
the subsequent IEPs offered by the DOE.
However, the DOE
contended that the settlement agreement did not make Loveland the
student’s placement for Stay Put purposes and only required the
DOE to pay tuition for the previous year.
The court in K.D. focused on the fact that the
student’s settlement agreement with the DOE never called for
‘placement,’ and only required tuition reimbursement.
Moreover, the K.D. court noted that the settlement
agreement stated that the student would transition to a public
school at the end of the school year for which the DOE agreed to
pay tuition reimbursement, evidencing that the parties did not
agree that Loveland was an appropriate placement going forward
The court also noted that the DOE’s proposed 2007 IEP
clearly showed that the DOE did not consider it appropriate for
the student to remain at Loveland Academy.
Id. at 1120.
Significantly, the court found that “[i]n this case, at the time
the due process hearing was filed, K.D. had attended Loveland for
over a year without the DOE’s permission and in spite of numerous
letters from the DOE stating that they would not pay for his
continued attendance there.”
Accordingly, the court held
that Loveland was not the student’s stay put placement because
the DOE had only agreed to pay tuition for the limited 2006-2007
school year and never affirmatively agreed to place K.D. at
Id. at 1121.
There are obvious factual similarities and
dissimilarities between K.D. and the instant case.
It is true
that in the instant action, the March 10, 2010 settlement
agreement never called for “placement,” and only covered tuition
(See Mem. in Supp. of Mot. for Stay Put, Ex. 3.)
This fact, according to the Ninth Circuit, “is not an
insignificant semantic difference . . . .
Rather, it was logical
for the DOE to settle the case by agreeing to pay tuition for a
limited amount of time in order to avoid the costs associated
with a full due process hearing.
However, it does not follow
that, by doing so, the DOE had conducted the detailed evaluation
required to determine whether Loveland was the proper institution
for K.D. under the IDEA.”
K.D., 665 F.3d at 1119.
While K.D.’s settlement agreement stated that the
student would transition to a public school at the end of that
school year (665 F.3d at 1119); the March 10, 2010 settlement
agreement in the instant action simply stated, “Parent to
participate in an IEP/Reevaluation meeting by the end of June
(Mem. in Supp. of Mot. for Stay Put, Ex. 3 at 1.)
The Court observes that there is a significant
distinction between the instant case and K.D.
Notably, the Ninth
Circuit has previously held that “a post-placement administrative
or judicial determination can operate to 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 decision ‘constitute[s] an agreement by the
State to the change of placement’ and the placement becomes the
‘current educational placement’ for the purposes of the stay put
K.D., 665 F.3d at 1118 (citing Clovis, 903 F.2d at
641) (citations omitted).
In K.D., the court found that “there
was no favorable agency or district court decision agreeing with
K.D.’s initial unilateral placement at Loveland.
urges us to construe the March 2007 settlement agreement as
having the same effect.”
Importantly, in the instant action, the Hearings
Officer ruled in his Decision that Loveland was an appropriate
placement for Sam K. for the 2010-2011 school year in his May 24,
2012 Findings of Fact and Conclusions of Law. (See Mem. in Supp.
of Mot. for Stay Put, Ex. 5 at 33.)
Further, Sam K.’s actual
placement has never changed from the time of this Court’s initial
ruling in 2008.
(See D.C. II,550 F. Supp. 2d at 1247.)
Consequently, the Court finds that pursuant to the Hearings
Officer’s May 24, 2012 determination that Loveland Academy was an
“appropriate” placement, Loveland is a bilateral placement and
the “current educational placement” for purposes of this Motion
for Stay Put.10/
The Court concludes that under the instant facts,
Plaintiffs are entitled to Stay Put.
Although Defendant relies
upon various cases involving requests for injunctive relief under
The Court notes that the Hearings Officer found (although
perhaps erroneously, in light of K.D.) that the May 18, 2010
settlement agreement established Loveland Academy as a bilateral
placement through the end of the 2009-2010 school year. See May
24, 2012 Findings of Fact and Conclusions of Law, Mot. for Stay
Put, Ex. 5 at 28.
the IDEA,11/ the Court finds that the instant action is a
straightforward Motion for Stay Put.
It is well-settled that
this type of motion does not require the moving party to
establish the traditional factors necessary to obtain preliminary
relief; it functions as an “automatic” preliminary injunction.
See Joshua A., 559 F.3d at 1037 (citations omitted).
“the fact that the stay put provision requires no specific
showing on the part of the moving party, and no balancing of
equities by the court, evidences Congress’s sense that there is a
heightened risk of irreparable harm inherent in the premature
removal of a disabled child to a potentially inappropriate
educational setting . . . .
It is unlikely that Congress
intended this protective measure to end suddenly and arbitrarily
before the dispute is fully resolved.”
Id. at 1040.
With respect to Defendant’s argument that Plaintiffs
should not be awarded Stay Put because their claim for
reimbursement was untimely and thus precluded by the statute of
limitations under H.R.S. § 302A-443(a)(2), the Court observes
that Defendant does not cite to any case law to support this
assertion that Stay Put should be denied based upon a statute of
limitations issue that is currently on appeal.
Stay Put is
available to Plaintiffs by statute, and Congress has evinced a
strong policy of protecting the status quo of a child’s then-
See Opp. Mem. at 13.
current educational placement, regardless of the outcome on the
Because Plaintiffs have appealed the Hearings Officer’s
decision and the Court has determined that Loveland is Sam K.’s
“then-educational placement” for purposes of this action, the
Court concludes that Plaintiffs are entitled to Stay Put
regardless of whether they ultimately prevail on the merits with
respect to whether they are barred from seeking reimbursement for
past tuition payments at Loveland due to statute of limitations
In K.D., the court acknowledged that the purpose behind
the stay put provision of the IDEA was to maintain the status
665 F.3d at 1120.
Having concluded that Loveland Academy
is Sam K.’s then-current educational placement, the Court grants
Plaintiffs’ Motion for Stay Put in order to maintain the status
quo during the pendency of the instant appeal, and in order to
uphold the mandates of the IDEA and the significant policy
concerns for which it was enacted.
For the foregoing reasons, the Court GRANTS Plaintiffs’
Motion for Stay Put.
IT IS SO ORDERED.
Honolulu, Hawaii, August 22, 2012.
Alan C. Kay
Sr. United States District Judge
Sam K., et al. v. Dep’t of Educ., State of Hawaii, et al., Civ.
No. 12-00355 ACK-BMK: Order Granting Plaintiffs’ Motion for Stay
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