* * * * * * * * * * * * * DECISION ON MOTIONS

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1 XXXX XXXX v. HARFORD COUNTY PUBLIC SCHOOLS * * * * * Return to Report BEFORE GEORGIA BRADY AN ADMINISTRATIVE LAW JUDGE OF THE MARYLAND OFFICE OF ADMINISTRATIVE HEARINGS OAH NO.: MSDE-HARF-OT * * * * * * * * * * * * * DECISION ON MOTIONS STATEMENT OF THE CASE ISSUES SUMMARY OF THE EVIDENCE FINDINGS OF FACT DISCUSSION CONCLUSIONS OF LAW ORDER STATEMENT OF THE CASE This case arises from a request by C. and M. B. ("Parents"), on behalf of their son, M. P. B. ("Child"), for a hearing to determine the current educational setting of the Child pursuant to 20 U.S.C.A. 1415(j) (2000). The Parents filed their request for a due process hearing with the Office of Administrative Hearings on January 8, At the same time, Mark Martin, Esq., counsel for the Parents, filed a Motion for Summary Decision. On January 12, 2001, Patrick Spicer, Jr., Esq., counsel for Harford County Public Schools (HCPS), filed a request for a prehearing conference in this case. 1 Counsel for the Harford County Public Schools asserts that the due process hearing request was filed with his client on January 9, This dispute over dates has no significance for this Decision and will not be referred to herein. For purposes of this Decision, I will assume that the request was filed on January 8, 2001.

2 On January 18, 2001, Georgia Brady, Administrative Law Judge ("ALJ") conducted a telephonic prehearing conference. Mr. Spicer represented the HCPS. Mr. Martin represented the Parents. At the conference counsel agreed that this case could be resolved on the Motion without the need for an evidentiary presentation. Counsel also noted that a related due process hearing before Administrative Law Judge D. Harrison Pratt had taken place in November 2000 and that a decision in that case was pending. On January 19, 2001, Judge Pratt issued his Decision 2 and shortly thereafter, on January 26, 2001, Mr. Spicer filed a Motion to Dismiss in the instant case. On January 30, 2001, the scheduling order was amended to permit responses and replies on the Motion to Dismiss. Both parties then requested oral argument on the motions. Argument was heard on February 16, At the oral argument, Mr. Martin referred to a case that had been published only the day before. In order to give both parties a chance to incorporate that authority, counsel were given additional time to supply each other and me with the case and to comment on it. The parties agreed that a Decision in this matter would be issued on or before March 14, This case is governed by the following laws: Individuals With Disabilities Education Act ("IDEA") Reauthorization, Disabilities Education Act Amendments of 1997, 20 U.S.C.A (2000); 34 C.F.R (1999); Md. Code Ann., Educ (1999); Maryland State Department of Education Guidelines for Maryland Special Education Mediation/Due Process Hearings. Procedure is governed by the contested case provisions of the Administrative Procedure Act, and the Rules of Procedure of the Office of Administrative Hearings. Md. Code 2 M. P. B. v. Harford County Public Schools, OAH Case No. MSDE-HARF-OT (Jan. 19, 2001 ALJ D. H. Pratt). 2

3 Ann., State Gov't through (1999 & Supp. 2000); Code of Maryland Regulations ("COMAR") ISSUES (1) Are there any pending proceedings in this case for purposes of the stay put provision of 20 U.S.C. 1415(j)? (2) What is the Child s current educational placement for purposes of the stay put provision of 20 U.S.C. 1415(j)? A. Exhibits SUMMARY OF THE EVIDENCE The following exhibits were attached to the Parents Motion for Summary Decision: Parents Ex. A - M. P. B. v. Harford County Public Schools, OAH Case No MSDE-HARF-OT (ALJ M. Miller Aug. 20, 1999) Parents Ex. B - M. P. B. v. Harford County Public Schools, OAH Case No MSDE-HARF-OT (ALJ G. Brady Jan. 7, 2000) Parents Ex. C - Board of Education v. Harford County v. M. P. B., et. al., Civil No. JFM (D. Md. Sept. 12, 2000) (J. Motz) Parents Ex. D - Letter from C. B. to Mrs. XXXX, dated August 11, 2000 Parents Ex. E - Letter from Mark Martin, Esq. to Patrick Spicer, Esq., dated August 16, 2000, with attached tuition bill from SCHOOL 1 for school year Parents Ex. F - Letter from Patrick Spicer to Mark Martin, dated August 22, 2000 Parents Ex. G - Request for Due Process Hearing, dated August 27, The current regulations are published at 27:26 Md. Reg (Dec. 29, 2000, effective Jan. 8, 2001) (proposed 27:18 Md. Reg (Sept. 8, 2000)) (to be codified at Code of Maryland Regulations ( COMAR ) ). 3

4 Parents Ex. H - Letter from Mark Martin to Patrick Spicer, dated September 1, 2000 Parents Ex. I - Letter from Patrick Spicer to Mark Martin, dated September 7, 2000 Two exhibits were attached to the HCPS s Answer to Motion for Summary Decision. In addition, HCPS submitted two affidavits with its Reply to Petitioner s Opposition to Harford County Public School s Motion to Dismiss. Those documents are identified as follows: HCPS Ex. 1 - HCPS Ex. 2 - M. P. B. v. Harford County Public Schools, OAH Case No. MSDE-HARF- OT (Jan. 19, 2001 ALJ D.H. Pratt) Letter from C. B. to Administrative Law Judge Marleen B. Miller, dated September 10, 1999 Affidavit of Patrick P. Spicer, Esq., dated February 12, 2001 Affidavit of Leslie R. Stellman, Esq., dated February 8, 2001 B. Testimony No testimony was submitted by either party. UNDISPUTED FACTS The Parents submitted a list of undisputed facts in their Motion for Summary Decision. Although the HCPS stated that it disagreed with some of those facts, it did not specify which facts or present opposing facts. Accordingly, I consider all the facts contained within the Parents Motion for Summary Decision to be undisputed. 1. The Child is currently ten years old and, as of January 8, 2001, was attending SCHOOL 1 in XXXX, Maryland. 2. SCHOOL 1 is a private school. 4

5 3. Prior to April 26, 1999, the Child was a student at SCHOOL 2 in Bel Air Maryland. 4. SCHOOL 2 is a public school within the Harford County Public Schools system. 5. While at SCHOOL 2, the Child had an Individualized Education Program ( IEP ) that had been formulated by HCPS to address the Child s deficits in auditory processing, verbal expression and pragmatics, and to address his Attention Deficit Disorder. 6. On April 26, 1999, the Parents withdrew the Child from SCHOOL 2 and placed him at SCHOOL The Parents then requested a due process hearing to challenge whether HCPS had been providing the Child with a Free Appropriate Public Education ( FAPE ). The hearing was held before Administrative Law Judge Marleen Miller on June 23 and July 19-21, On July 6, 1999, HCPS determined that the Child needed assistive technology. This recommendation was included in the IEP HCPS proposed for the Child for the school year. HCPS did not inform the Parents of this decision. The issue of assistive technology was not raised in the hearing before Judge Miller. 9. On August 20, 1999, ALJ Miller ruled that HCPS had failed to give the Child a FAPE at SCHOOL 2 for the school year, the 1999 summer, and had failed to propose a FAPE for the school year. Judge Miller ordered the HCPS to reimburse the Parents for the cost of tuition at SCHOOL 1 for the remainder of the school year, the 1999 summer, and the school year. ( the Miller Decision ) 10. The Child returned to SCHOOL 1 for the school year. 11. On September 10, 1999, the parents wrote to Judge Miller asking why she did not also rule that the Child should remain at SCHOOL 1 for the school year. Judge 5

6 Miller did not respond to this letter but did send a copy to Mr. Spicer. 12. HCPS did not provide the Child with the assistive technology contained in the IEP it proposed for him. 13. On November 8, 1999, the Parents filed a request for a second due process hearing to obtain the assistive technology services that HCPS had determined that the Child required as part of his IEP. 14. This due process hearing was held on December 15, 1999 before Administrative Law Judge Georgia Brady. 15. On January 8, 2000, Judge Brady held that the Child needed the assistive technology and services and ordered the HCPS to provide the Child with appropriate software and training for home and for the SCHOOL 1 personnel who would be helping him with it. ( the Brady Decision ). 16. HCPS appealed both the Miller Decision and the Brady Decision to the United States District Court for the District of Maryland. Chief Judge Motz consolidated the cases on June 28, On May 12, 2000, HCPS proposed an IEP for the Child for the school year. This IEP proposed SCHOOL 2 as the appropriate placement for the Child. 18. On August 11, 2000, the Parents rejected the IEP and asked HCPS to fund the Child s placement at SCHOOL 1 under the stay-put provisions of the IDEA. 19. On August 16, 2000, counsel for the Parents made the same request to counsel for the HCPS. 20. On August 22, 2000, HCPS rejected that request, arguing that SCHOOL 1 was not the Child s stay-put placement. 6

7 21. On August 29, 2000, the Parents filed a request for a third due process hearing to challenge the IEP proposed by HCPS and the HCPS for On September 12, 2000, Chief Judge Motz affirmed the Miller and Brady Decisions. Chief Judge Motz ordered the HCPS to reimburse the Parents for the cost of tuition at SCHOOL 1 for the same period set out in the Miller Decision: the remainder of the school year, the 1999 summer, and the school year. ( the Motz Decision ) 23. The question of the school year was not before Chief Judge Motz in the appeal of the Miller Decision and the Brady Decision. 24. HCPS did not appeal the Motz Decision. 25. On October 10-11, 2000, and on November 16, 2000, a due process hearing was held before Administrative Law Judge D. Harrison Pratt on whether the IEP proposed by HCPS for the school year provided the Child with FAPE. 26. The issue of whether SCHOOL 1 was the Child s current educational placement for purposes of the stay-put provision was not raised to Judge Pratt. 27. On January 8, 2001, the Parents filed a fourth request for due process hearing in order to determine what the current educational placement of the Child was, for purposes of the stay-put provision. 28. On January 19, 2001, Judge Pratt ruled that the HCPS had proposed a FAPE for the Child at SCHOOL 2 for the school year. Judge Pratt also ruled that the Parents were not entitled to reimbursement for tuition at SCHOOL 1 for the school year. ( the Pratt Decision ) 7

8 29. As of the date of oral argument in this matter, February 16, 2001, the Parents had not yet appealed the Pratt Decision. DISCUSSION This question in this case is how to interpret and apply the so-called stay-put provision of IDEA, 20 U.S.C. section 1415(j). Section 1415(j) states: (j) Maintenance of current educational placement Except as provided in subsection (k)(7) of this section, 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 such 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. (emphasis added). The Parents argue that on August 29, 2000, the date they filed their third request for a due process hearing, the Child s then-current educational placement was SCHOOL 1 and that, therefore, HCPS was required to continue to pay for the Child s tuition there under section 1415(j). The Parents note that on that date a decision was pending on the appeal of the Miller and Brady Decisions and that this appeal, as pending proceedings, triggered the application of the stay-put provision. HCPS argues that the Miller and Motz Decisions only dealt with the and school years, and that these decisions cannot be used to fund the Child s placement at SCHOOL 1 for the school year. HCPS argues that to hold any other way would (1) absurdly and improperly extend the ruling by Judges Miller and Motz beyond the years at issue in those cases; and (2) absurdly and improperly ignore Judge Pratt s Decision that HCPS can provide FAPE to the Child at SCHOOL 2 during the school year. Because HCPS is unlikely to get reimbursement from the Parents, if it is ultimately successful, expenditures will 8

9 substantially prejudice HCPS. HCPS also argues that for the school year, the Child s then-current placement was at SCHOOL 2 the placement contained in the IEP it proposed for that year. In its Motion to Dismiss, HCPS further argued that, at least after the Pratt Decision was issued on January 19, 2001, there were no pending proceedings and any stay-put effect would have evaporated after that date. The Parents responded that there was a one-hundred-eighty day period for the Parents to determine whether to appeal the Pratt Decision and that this open appeal period extended pending proceedings until the expiration of the time to appeal. 4 Because the question of whether there is a pending proceeding triggers any determination about current education placement, I will first address HCPS s Motion on that issue. A. Motion to Dismiss: Pendent proceedings The plain language of section 1415(j) states that the Child shall remain in the then current educational placement during the pendency of any proceedings conducted pursuant to this section. Section 1415 only refers to proceedings before local and state educational agencies and appeals to state courts or to a federal District Court. See generally 20 U.S.C The question of whether stay-put applies becomes critical in determining not only where the child will remain in school during pending proceedings, but also who will fund that placement. 1. Time Periods At Issue There appear to be three separate time periods to consider for the question of whether there are/were pending proceedings in this case. First, from May 28, through September 12, 2000, the date Judge Motz issued his Decision affirming Judge Miller s and my decisions 4 HCPS filed its Motion to Dismiss for lack of a pending proceeding five work days after the issuance of the Pratt Decision. 5 As discussed below, HCPS does not dispute that the initial date to look to under section 1415(j) is the date upon which a request for due process was filed. May 28, 1999 is the date the Parents filed their first request for due process hearing the Miller hearing. 9

10 regarding the school year, the 1999 Summer, and the school year. Second, from August 29, 2000, the date the Parents filed their third request for a due process hearing regarding the school year, through January 19, 2001, the date of Judge Pratt s decision. Third, the period after Judge Pratt s decision was issued, from January 20, 2001 through the end of the 180-day appeal period or forward, if an appeal is filed to Judge Pratt s decision. There is no question that there were proceedings pending during the first two time periods. Although HCPS argues that I should find no pending proceedings in its Motion to Dismiss, if this argument was truly intended to cover the first two time periods, I believe it really raised the issue of what the Child s then-current educational placement was, and/or whether the Parents had unilaterally changed the Child s placement by returning him to SCHOOL 1. That issue is separate from the question of whether proceedings were pending; it will be discussed more fully below. There can be no dispute that there were multiple overlapping pending proceedings in this case from as early as May 19, 1999, the date the Parents filed their first request for a due process hearing, through at least January 19, 2001, the date Judge Pratt issued his decision. With regard to the third time period, from January 20, 2001 forward: the plain language of the statute would indicate that because no appeal has yet been filed on Judge Pratt s decision, that there are no current pending proceedings. The Parents argue that construing the statute this strictly would lead to an absurd off-on-off-on application of stay put that is contrary to Congressional intent. The Fourth Circuit Court of Appeals has directed that [c]ourts are not free to read into the language what is not there, but rather 10

11 should apply the statute as written. In other words, if the statutory language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion. Md. Dept. of Educ. v. Dept. of Veterans Affairs, 98 F.3d 165, 169 (4 th Cir. 1996), cert. denied, 533 U.S. 806 (1997) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). The only time courts may go beyond the plain language is if the literal application of statutory language (1) would lead to an absurd result or (2) would produce a result demonstrably at odds with the intent of Congress; in such cases, the intent of Congress rather than the strict language controls. Id. (citing Crooks v. Harrelson, 282 U.S. 55, (1930); United States v. Ron Pair Enters., Inc., 489 U.S (1989)). Under these circumstances, I must look to the opinions of superior courts for guidance. 2. Jarczynski The only case submitted by the parties on this question is Jarczynski v. St. Mary s County Public Schools, 30 IDELR 38 (D. Md. 1999). In that case, the parents received an order from a federal District Court that their child s stay-put placement was at the Lab School of Washington. The court also ordered that St. Mary s County Public Schools be responsible for all tuition and costs from August 1998 through the pendency of any proceedings between the parties. 6 The order was issued October 13, On October 18-19, 1998, an administrative due process hearing was held regarding the school year. The Administrative Law Judge ruled that the child s placement at Leonardtown High School was appropriate to meet [the child s ] educational needs and that the parents were not entitled to reimbursement for any expenses incurred by sending [the child] to the Lab School during the school year. 6 The Order was issued by the court on a motion from the Parents seeking a preliminary injunction for claims arising under the IDEA. Jarczynski, 30 IDELR at

12 Id. at 39. St. Mary s County then returned to federal court seeking relief from the court s October 13, 1998 order. The County argued that the only proceeding between the parties has been resolved in Defendants favor and the sun has set on the Court s Order. Indeed, [the child s] stay put placement is now Leonardtown High School and the financial responsibility of SMCPS to fund [the child s] Lab School tuition no longer exists. Jarczynski, 30 IDELR at 39. The court disagreed with this argument, stating It is undisputed, however, that Plaintiffs have a right to appeal the ALJ decision to this Court within 180 days. See Md. Code Ann., Educ (h) (1997). As such the conclusion of this case has not yet been reached. This Court s order, therefore, remains in full effect. See Andersen v. District of Columbia, 877 F.2d 1018, 1023 (D.C. Cir. 1989) (holding that maintenance of a child s then current educational placement under section 1415(e)(3) is required only through the level of district court review). Id. (footnote omitted). Counsel admits that this is the only case that exists in the Fourth Circuit on this issue. I believe that this is because most cases would come up on appeal on the merits and would address the stay-put argument at that point rather than before an appeal is filed. In fact this issue has not been addressed in any of the cases counsel has submitted to me, though I must believe that in all of those cases there was some delay between the issuance of an administrative decision and the date an appeal of that decision was filed. None of the courts in these cases denied tuition reimbursement to a parent (who otherwise met the stay-put criteria) for the period of time between an administrative decision and an appeal. 3. Exceptions to the literal application of statutory language. Courts have held over and over again that the intent of the stay put provision is to provide continuity of environment to a child while his or her parents litigated disputes with 12

13 the school system. Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp.2d 354, 357 (S.D.N.Y. 2000) (citing Cole v. Metropolitan Government of Nashville and Davidson County, Tenn, 954 F. Supp. 1214, 1221 (M.D. Tenn. 1997); 7 Warton v. New Fairfield Board of Educ., 33 IDELR , 1036 (D. Conn. 2000) (citing Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 84 (3 rd Cir. 1996). HCPS s position to halt application of stay put before expiration of the appeal period -- would produce a result demonstrably at odds with this Congressional intent. Under HCPS s theory, the Child would be bounced between different education placements multiple times in a single year: if I find that the Child s current educational placement in August 2000 were SCHOOL 1, the Child would stay at SCHOOL 1 until mid-january, then he would leave SCHOOL 1 and go to SCHOOL 2, until his Parents filed an appeal, and then he would return to SCHOOL 1. This is clearly not consistent with Congress s intent to keep a child in one school during disputes between his parents and the public school system. Counsel s argument would also encourage almost immediate filings of appeals in order to preserve a stay-put placement, certainly raising the number of frivolous appeals. It also seems clear that the reason for such a lengthy appeal time is to give counsel time to weigh the merits of such an appeal. Requiring a speedy appeal in order to maintain stay-put would erase any possibility of thoughtful consideration of whether real issues for appeal existed. HCPS argues that continuing to fund the SCHOOL 1 placement for months after Judge Pratt s favorable decision is absurd and places too heavy a burden on a school system. However, 7... [O]ne of the primary underlying purposes of the IDEA, to protect the children to whom it applies, extends to the practical concern of ensuring stability of environment for them during due process hearings and judicial review.... The stay put provision is premised on the rationale that preservation of the status quo, rather than an inappropriate reaction to an emergent situation, provides for the best interests of the child." Cole v. Metro. Gov. of Nashville & Davidson Cty., 954 F. Supp. 1214, 1219 (M.D. Tenn. 1997) (citations omitted). 13

14 courts have noted that Congress anticipated this heavy burden of reimbursement during the appeal process. If appeals were anticipated, and they clearly were, then the period of time between an administrative decision and the filing of an appeal also must have been considered to have been within the scope of pending proceedings in section 1415(j). See Burlington School Comm. v. Dept. of Educ., 471 U.S. 359, 370 (1985) ( If the administrative and judicial review under the Act could be completed in a matter of weeks, rather than years, it would be difficult to imagine a case in which such prospective injunctive relief would not be sufficient. As this case so vividly demonstrates, however, the review process is ponderous. A final judicial decision on the merits of an IEP will in most instances come a year or more after the school term covered by that IEP has passed. ); Jenkins v. Squillacote, 935 F.2d 303, 307 (D.C. Cir. 1991)(... there can be no doubt that a one-year placement order under the IDEA is, by its nature, too short [in duration] to be fully litigated prior to its... expiration. ) (citations omitted); Daniel R. v. State Bd. of Educ., 874 F.2d 1036, 1041 (5 th Cir. 1989) ( A placement and an IEP cover an academic year, a nine[-] month period. The Supreme Court has observed that administrative and judicial review of an IEP is ponderous and usually will not be complete until a year after the IEP has expired. ); Murphy v. Arlington Central School Dist. Bd. of Educ. 86 F.Supp.2d 354, 356 (S.D.N.Y 2000) ( Unfortunately, the administrative review process does not always coincide with the academic calendar. ). HCPS may be placed in a position of paying for tuition when it is ultimately determined that it need not; however, the courts have acknowledged this burden and still held that [t]he statute simply does not create symmetrical obligations; it imposes a duty only upon school systems to provide a free appropriate public education and provides a remedy to parents for the denial of that entitlement. Jenkins, 935 F.2d at 307 n.3 (emphasis added). HCPS argument 14

15 that it will be prejudiced by this expenditure was considered and rejected by Congress when it made the stay put provision an automatic injunction. See Board of Education of Montgomery County v. Brett Y., 959 F. Supp. 705 (D. Md. 1997) (stay-put is automatic injunction: no need to weigh elements of temporary injunction like irreparable harm). After weighing the authority presented to me, I find that the intent of Congress was to include the period of time between the issuance of an administrative decision and the expiration of the appeal period (or beyond if an appeal is filed) within the scope of pending proceedings. I further find that literal application of the statutory language would produce a result demonstrably at odds with the intent of Congress. As directed by the Fourth Circuit in Md. Dept. of Educ. v. Dept. of Veterans Affairs, 98 F.3d 165 (4 th Cir. 1996), I will follow the intent of Congress and the analysis of Judge Nickerson in Jarczynski v. St. Mary s County Public Schools, 30 IDELR 38 (D. Md. 1999). I rule that until the expiration of the appeal period, or the issuance of a decision on appeal of Judge Pratt s order, there continue to be pending proceedings in this case. Because I find that there have been continuous pending proceedings in this case since May 28, 1999, HCPS Motion to Dismiss is DENIED. B. Motion for Summary Decision: Current Educational Placement Section 1415(j) provides three ways to determine the educational placement in which a child must stay put during the pendency of any [special education] proceedings. The second, but core provision, is that the child must remain in his then-current educational placement. Id. However, a determination of this location is not necessary if the first prong -- the State or local educational agency and the parents otherwise agree -- or if the third prong -- 15

16 in the case of initial admission to a public school, the parents consent to place the child in the public school program, until all such proceedings have been completed -- are met. Id. The multiple phases of this case have triggered the first and second formulas of the stay-put provision, for different reasons. Although only the question of "stay-put" for is before me, it is helpful to follow the entire course of this litigation in order to put this year s placement into proper perspective. The component periods at issue are: (1) May 28, 1999 through the end of the school year; (2) August 29, 2000 through September 12, 2000; 8 (3) September 12, 2000 forward. 1. May 28, 1999 through the end of the school year On May 28, 1999, the Child was attending school at SCHOOL 1. The Child was unilaterally placed there by his Parents. Prior to the issuance of Judge Miller s Decision on August 20, 1999, the Parents were obligated to pay tuition for him at SCHOOL 1. On August 20, 1999, Judge Miller issued her ruling agreeing with the Parents s position that HCPS could not have provided the Child with FAPE at the HCPS's proposed placement, SCHOOL 2. She ordered that HCPS reimburse the Parents for any tuition costs they had paid during the unilateral placement period prior to her Decision and for the school year. Because Judge Miller s Decision agreed with the Parents position, this state-level administrative decision represented an agreement between the State... and the parents for purposes of making SCHOOL 1 the stay-put placement for the same period of time. 20 U.S.C. 1415(j); 34 C.F.R ; 9 Clovis Unified v. Office of Administrative Hearings, 903 F.2d 635 (9 th Cir. 8 The Parents filed their third due process hearing request on August 29, Judge Motz affirmed my and Judge Miller s decisions on the school year on September 12, CFR (c) states as follows: If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must 16

17 1990); Board of Educ. of Montgomery County v. Brett Y., 959 F. Supp. 705 (D. Md. 1997). The parties do not dispute that the September 12, 2000 Motz Decision confirmed SCHOOL 1 as the Child s agreed-upon educational placement for the school year. The next question is whether this agreed-upon educational placement converts SCHOOL 1 into the Child s thencurrent placement for the following school year. 2. August 29, 2000 through September 12, 2000 The Parents argue that since the Child was attending SCHOOL 1 for the school year, and since this placement had been approved for the prior school year, his current educational placement, for purposes of section 1415(j), was SCHOOL 1. HCPS argues that the Child s then-current educational placement was SCHOOL 2 because it proposed placement there for the Child for the school year in the IEP. HCPS further argues that the Parents decision to continue the Child at SCHOOL 1 constituted a unilateral placement, a violation of stay-put, and that the Parents should be denied any reimbursement for tuition for this school year. I find that the stay-put provision was definitely triggered and applicable for this short period because Judge Motz s decision was still pending at the beginning of the school year and was not issued until September 12, I further conclude that SCHOOL 1 was the Child s current educational placement during this time. I base my decision in part on a remarkably analogous case: Murphy v. Arlington Central School Dist. Bd. of Educ., 86 F. Supp.2d 354 (S.D.N.Y 2000). In Murphy, parents rejected the school district s IEP for the school year and be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section. 17

18 unilaterally placed their child in a private school. An initial hearing officer agreed that the school district had not provided the child with FAPE in his public placement and held that the parents were entitled to tuition reimbursement for costs at the private school. The school district appealed to a state level hearing officer. Before the state level hearing officer issued his/her decision, the school district proposed an IEP for the child s school year. This IEP proposed that the appropriate placement for the child was back in the same public school from which the child had been removed during the school year. Like the Parents in the instant case, the parents in Murphy rejected the IEP and kept the child at the private school. On December 14, 1999, the state-level hearing officer issued a decision affirming most of the initial hearing officer s decision on the prior school year. On January 7, 2000, the parents requested a due process hearing to seek reimbursement for the school year tuition and to challenge the appropriateness of the proposed placement. It appears that the parties sought resolution of the stay-put issue in federal court rather than in administrative proceedings. 10 The Murphy litigants raised the same arguments presented to me in this case:... The Plaintiffs [Parents] argue that the District now has an ongoing financial responsibility to fund [the child s] tuition at Kildonan [private school] until such time that his placement is changed by agreement of the parties, a final administrative decision in favor of the District from which Plaintiffs do not appeal, or by a court decision in the District s favor. The District disagrees. It maintains that Joseph s current educational placement is the Arlington High School [public placement]. According to the District, the SRO [State level hearing officer] issued in December 1999 was limited to the school year and has no prospective effect on either placement or payment. 10 HCPS has argued throughout this case that the Parents must raise the issue of stay-put in federal court, as the parties in Murphy apparently did. Notably, the Murphy court does not hold that the federal court has exclusive jurisdiction over this issue. The only cases presented to me by counsel are cases where the courts have either permitted a hearing on the stay-put issue, e.g., Murphy, or have held that parties do not have to exhaust their administrative remedies before proceeding on this issue in federal court. See e.g. Cole v. Metropolitan Gov t of Nashville and Davidson County, Tenn., 954 F. Supp (M.D. Tenn. 1997). Neither set of cases has prohibited parents from seeking a ruling on the then-current educational placement at an administrative hearing. I therefore reject HCPS s argument that this case is not in the proper forum. 18

19 Murphy, 86 F. Supp.2d at Like the instant case, once the Parents received a state-level administrative decision in their favor, the private placement became the agreed-upon placement for purposes of section 1415(j) and its implementing regulation, 34 C.F.R (c). The court found the District s position that this placement was then changed by a proposed IEP inherently inconsistent. Id. at 358. The court explained: By an unexplained leap of logic, the District then argues that Joseph s current educational placement is once again the Arlington High School. The fact that Arlington High School was Joseph s current educational placement prior to the SRO decision in his favor is no longer relevant. That placement was superceded by the SRO decision which, as noted, constituted an agreement between Plaintiffs and the District to a new placement, namely Kildonan.... Even if the District is correct that the SRO decision regarding placement is only relevant to the school year, it would hardly make sense to reinstate Arlington High School as the current educational placement for the term, when the SRO deemed that placement inappropriate for the year immediately prior. The District has confused the concepts of the current educational or pendent placement with what is ultimately determined to be the appropriate placement for the school year. Id. at 359 (citations omitted) (also citing Matthew K. v. Parkland School District, 1998 WL at 7 (E.D. Pa. 1998) (... pendent placement is an entirely independent determination based on the last agreed upon placement [from appropriate placement] )). The court continued to find that a proposed IEP for the current year was... similarly irrelevant to the current educational placement determination. Plaintiffs have not consented to this public school placement, there has been no agreement regarding this placement, and there has been no administrative or court decision deeming this placement appropriate. Certainly, it was not the intent of Congress for the then current educational placement to be the one which the school district proposed for the following school year. This result would completely circumvent the underlying purpose of section 1415(e)(3)(A) [now 1415(j)] to preserve the status quo. Cole v. Metropolitan Government of Nashville and Davidson County, Tenn., 954 F. Supp. 1214, 1222 (M.D. Tenn. 1997). The last agreed upon placement was Kildonan. Therefore Kildonan is Joseph s current educational placement. 19

20 The case before me differs somewhat from Murphy in that an administrative decision has been rendered on whether the proposed placement, SCHOOL 2, is appropriate for the current school year ( ). See HCPS Ex. 1, Pratt Decision. HCPS contends that this fact renders the Murphy analysis inapplicable to this case. I disagree. The Pratt decision was directed to the school year issues. None of the issues relating to the litigation, including stay put, were raised to or ruled upon by Judge Pratt. This decision therefore has no impact on whether stay put was appropriate for the litigation period of time. That period of time clearly includes the beginning of the school year through September 12, When the school year started, the child s current educational placement was the lastagreed upon placement namely SCHOOL 1. This conclusion is consistent with that reached by multiple courts who have looked to the prior year s placement to determine the current educational placement. See Warton v. New Fairfield Bd. of Educ., 33 IDELR 269 (D.Conn. 2000); Murphy v. Arlington Cent. School Dist. Bd. of Educ., 86 F. Supp.2d 354 (S.D.N.Y. 2000); Cole v. Metropolitan Gov t of Nashville and Davidson County, Tenn., 954 F. Supp (M.D. Tenn. 1997); Board. of Educ., Dist. No. 200 v. Ill. Bd. of Educ., 10 F. Supp.2d 971 (N.D. Ill. 1998); see also Board of Education of Montgomery County v. Brett Y., 959 F. Supp. 705 (D. Md. 1997) (the current educational placement is the placement in which there is an actually functioning IEP when stay-put is invoked). HCPS argues that a recent decision, also written by Judge Motz, Mayo v. Baltimore City Public Schools, 40 F. Supp.2d 331 (D. Md. 1999), negates the trend in these cases. In Mayo, Judge Motz was presented with an appeal in which there had been an administrative decision granting a parent s request for tuition reimbursement approximately three school years prior to 20

21 the year at issue in the current case. In the subsequent two years, the parents and the school district settled their disputes; the school district agreed to fund placement at a private school, with the understanding that the child would transition back into public school. Both parties specifically agreed that the private school was not the current educational placement. Judge Motz held that the question of whether the stay-put provision required the district to fund private placement for a fourth year was a close question. Id. at 333. He specifically noted that [t]his is not a clear-cut case in which the parties had agreed on an educational placement and IEP for the school year immediately prior to the year at issue. Id. Judge Motz ruled that an unappealed administrative ruling, governing a school year four years before, did not create a permanent stay-put placement at the private school. He also held that because of these facts, the child did not even have a current placement and that the district did not have to continue to perpetually fund the parents decision to keep the child in private school. After reviewing Mayo, I find that it supports the Parents position in this case. Indeed, the facts presented in the instant case are identical to those which Judge Motz saw as a clear application of stay put: a current ALJ decision in the parents favor or other circumstances (such as a recent agreed-upon IEP and placement). Mayo, 40 F. Supp.2d at 334. HCPS argues that there is not a current ALJ decision in the parents favor. I strongly disagree. The Parents seek reimbursement for the school year. Judge Miller s (and Judge Motz s) decisions govern the school year, the 1999 summer, and the school year. Judge Miller s decision is exactly the recent ALJ decision in the parents favor which Judge Motz looked for in Mayo. HCPS further argues that there is not a recent agreed-upon IEP and placement because HCPS has always disagreed with SCHOOL 1 as the placement and because HCPS and the 21

22 Parents have been litigating the and IEPs and attached placements. While the fact of litigation is undeniable, it is also irrelevant; once an Administrative Law Judge agrees with a parent s position on placement, the parent s placement is considered an agreed-upon placement under 20 U.S.C. section 1415(j). Judge Miller s decision agreeing with the Parents on the and school years created an agreed-upon placement. HCPS s argument that Mayo demands a decision to the contrary is simply wrong. The clear weight of authority holds that during the pendency of special education proceedings, the child s then-current educational placement is not changed by a proposed IEP placement, unless the parents agree to that proposal. Here, there was no such agreement on SCHOOL 2. The then-current educational placement therefore must be the last agreed-upon placement, namely SCHOOL September 12, 2000 and forward After issuance of Judge Motz s decision on September 12, 2000, any stay-put effect arising from Judge Miller s decision would have evaporated, had there not been subsequent proceedings. Of course, in this case there were. Proceedings were initiated on August 29, 2000, the date of the third due process hearing request. On August 29, 2000, the Child s current educational placement was SCHOOL 1. Section 1415(j) clearly directs that during the pendency of special education proceedings, the child shall remain in his then current educational placement, unless the parents and the local or state educational agency otherwise agree. As discussed fully above, after the filing of the due process hearing request, the Child must remain at SCHOOL 1 until his placement is changed by agreement of the parties, a final administrative decision in favor of the HCPS from which Plaintiffs do not appeal, or by a court decision in the HCPS s favor. See e.g. Murphy v. 22

23 Arlington Central School Dist. Bd. of Educ., 86 F. Supp.2d 354 (S.D.N.Y. 2000) HCPS argues that this is inequitable and absurd, particularly in light of Judge Pratt s decision finding that HCPS can provide FAPE for the Child at SCHOOL 2 for the school year. HCPS argues that the Parents have instigated protracted litigation in this case with the sole goal of extending the amount of time that HCPS may be required to pay SCHOOL 1 tuition under stay-put. First, I find little evidence of foot-dragging by the Parents. This is not a case such as that presented in Mayo, where the parents had managed to stretch out tuition reimbursement over five years. The Parents moved their Child to SCHOOL 1 in the spring of They have litigated the school year and the school year. The fact that the Parents have not yet filed an appeal of Judge Pratt s decision is also inconclusive. The Parents are permitted onehundred-eighty days to make that decision. There were only five work days between the issuance of Judge Pratt s decision and HCPS Motion accusing the Parents of delay. I cannot even be sure that the Parents had received Judge Pratt s decision by the time HCPS made this accusation. At best, this charge is baseless and uncivil. While the burden of reimbursement may be unpalatable to HCPS, the Parents have done nothing to justify barring the application of stayput on equity grounds. Finally, while HCPS may consider the application of stay put absurd, I must repeat what numerous courts have explained section 1415(j) simply does not create symmetrical obligations; it imposes a duty only upon school systems to provide a free appropriate public education and provides a remedy to parents for the denial of that entitlement. Jenkins, 935 F.2d at 307 n.3 (emphasis added). An administrative decision agreeing with HCPS is not sufficient to dissolve the application of the stay-put provision. Stay-put obligations are only 23

24 relieved by an administrative decision in HCPS s favor that is not appealed or by a court decision in HCPS s favor. See Mayo v. Baltimore City Public Schools, 40 F. Supp.2d 331 (D. Md. 1999); Jarczynski v. St. Mary s County Public Schools, 30 IDELR 38 (D. Md. 1999); Board of Educ. of Montgomery County v. Brett Y., 959 F. Supp. 705 (D. Md. 1997). Until then, HCPS must continue to fund the Child s placement at SCHOOL 1. The heavy burden of paying for tuition at SCHOOL 1 may seem unfair, particularly in light of Judge Pratt s decision but Congress clearly anticipated such circumstances when it set out the grounds for application of the statute. The Parents Motion for Summary Decision is hereby GRANTED. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact and Discussion, I conclude, as a matter of law that the term pending proceedings under 20 U.S.C. section 1415(j) includes the one hundred eighty-day appeal period after issuance of an administrative decision. I further conclude as a matter of law, that, since August 29, 2000, the Child s current educational placement, for purposes of 20 U.S.C. section 1415(j) is SCHOOL 1. I further conclude, as a matter of law, that HCPS is obligated by the August 29, 2000 invocation of 20 U.S.C. section 1415(j) to continue to fund the Child s placement at SCHOOL 1 until the expiration of the stay put provision. I further conclude, as a matter of law, that the current application of the stay put provision invoked on August 29, 2000 expires upon either the expiration of the appeal time from Judge Pratt s decision, or the issuance of a district court decision in an appeal of Judge Pratt s decision. 24

25 ORDER I ORDER that the Parents Motion for Summary Decision is GRANTED; and further ORDER that the HCPS s Motion to Dismiss is DENIED; and further ORDER that the HCPS must fund the Child s placement at SCHOOL 1 until the expiration of the current application of the stay put provision. March 12, 2001 Date Georgia Brady Administrative Law Judge GB/ #29048 APPEAL RIGHTS Any party aggrieved by this Final Decision of the Maryland State Department of Education may appeal it by filing a petition for judicial review with the circuit court for the county where the child resides or the United States District Court for Maryland, without regard to the amount in controversy, within one hundred eighty (180) days after the date that notice of the decision is sent. The Office of Administrative Hearings is not a party to the judicial review process. Md. Code Ann., Educ (h) (1999). Return to Report 25