Evans' attorney, Dr. Zeisler (who was both principal of the Buckley Middle School and chairperson of the CSE), and the District's attorney -- two of whom testified.
According to Evans' testimony, Frank was placed at Kildonan by agreement of the parties until an appropriate public school placement could be developed. Evans testified that at the meeting the District agreed that its IEP was inappropriate, that it could not currently provide an appropriate program, but that, with her cooperation, it would develop a program similar to Kildonan's program in the public school setting. In the meantime, according to Evans, the District agreed that Kildonan was an appropriate place for Frank to be and agreed to pay its bill. Evans also testified that, in exchange, she agreed to withdraw her request for a hearing, and thereby her request for reimbursement of Frank's tuition at the Kildonan 1994 summer program and a bill for psychiatric evaluation of Frank.
According to Dr. Zeisler's testimony, the District agreed to fund Frank at Kildonan for an indefinite period of time, that is, until it could hire another multi-sensory instructor. Dr. Zeisler testified that at the October 26 meeting, she agreed to find another tutor in multi-sensory instruction and that the frequency of instruction would be increased to five times a week for 40 minutes. The District also agreed, according to Dr. Zeisler, to pay tuition for Frank at Kildonan until it was able to implement the IEP, that is, until it hired another multi-sensory instructor. Dr. Zeisler further testified that the CSE was not reconvened to review the agreed upon terms of this agreement, such as the replacement of the multi-sensory instructor, until January 19, 1995.
Jacobsen v. District of Columbia Board of Education, 564 F. Supp. 166 (D.D.C. 1983) held that any settlement between the parties must be spelled out in detail, as it was in Zvi D., otherwise the Court would assume that the placement, whether decided upon by administrative determination or by agreement of the parties, constituted the child's current educational placement. See Jacobsen, 564 F. Supp. at 171-72. Because the District of Columbia Public Schools ("DCPS") had advised the parents that it had made "an administrative decision to assume financial responsibility" for the private school tuition, without limiting the placement to a particular school year or providing that another placement would be considered for the following school year, Jacobsen held that "the parents were free to assume that the DCPS would continue to fund [the child] at [the private school] until a change in the placement made after Notice of a Proposed Change in Educational Program, and the exhaustion of any proceedings challenging a new proposed placement." Jacobsen, 564 F. Supp. at 171-72 See also Saleh v. District of Columbia, 660 F. Supp. 212 (D.D.C. 1987) (holding that limitations or reservations of rights must be expressly stated or court will assume placement was current educational placement).
Here, the terms of the agreement were not spelled out in detail, nor memorialized in any writing. Moreover, even if this Court were to accept as true the District's version of its terms, the agreement to fund Frank at Kildonan was not bound by a definite time limitation.
The facts of the matter are that as a result of the October 26 agreement between the parties the hearing was called off, Frank continued at Kildonan, and the District assumed full responsibility for his tuition, for which the District was billed directly. In addition, the CSE was not reconvened to amend Frank's IEP to reflect the changes agreed upon, such as the replacement of the multi-sensory instructor and the frequency of such instruction, until January 19, 1995. Thus, the program proposed by the CSE was not even available during the 1994-95 school year until January 19, 1995.
Under these circumstances, this Court concludes that, when Evans requested the impartial hearing on January 4, 1995, the Kildonan School was Frank's "then current educational placement." This conclusion is not altered by the District's unilateral attempt in December to cut off funding to Kildonan, see Zvi D., 694 F.2d at 906, nor by its subsequent agreement in February of 1996 to do what it was already required to do under the IDEA -- maintain Frank at Kildonan pending resolution of the administrative proceedings.
Because the IDEA requires that a child remain at his "then current educational placement" pending resolution of both administrative and judicial proceedings, see 20 U.S.C. § 1415(e)(3), the District is required to maintain Frank at Kildonan School pending resolution of this dispute.
In conclusion, plaintiff's motion for a preliminary injunction is granted. It is hereby ordered that defendant shall maintain Frank at the Kildonan School pending this Court's decision on the merits.
Dated: White Plains, N.Y.
May 6, 1996
Barrington D. Parker, Jr.