The opinion of the court was delivered by: Haight, Senior District Judge.
MEMORANDUM OPINION AND ORDER
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
There is no dispute that Joseph is a "child with a disability" as that
term is defined by the Act, 20 U.S.C. § 1401 (3)(A), and that the
IDEA applies in this case. Joseph was identified as a student requiring
special education in 1994.
Prior to the events that led to the present disputes, Joseph completed
the 1997-1998 school year in the Arlington District School. Therefore, as
the 1998-1999 school year approached, Arlington High School was Joseph's
then-current educational placement.
An individualized education program ("IEP") was prepared for the
1998-1999 school year which continued to place Joseph at the Arlington
School. However, Plaintiffs rejected the IEP and requested a due process
hearing, as is their right, pursuant to the IDEA, 20 U.S.C. § 1415.
According to the stay-put provision under the Act, 20 U.S.C. § 1415
(j), Joseph should have remained in his then-current educational
placement, Arlington High School, pending the hearings requested by
Plaintiffs. Unwilling to allow their son to remain in what they felt was
an inappropriate educational placement, Plaintiffs unilaterally withdrew
Joseph from the Arlington School, and enrolled him at Kildonan, a private
school. Joseph attended Kildonan for the 1998-1999 school year.
Plaintiffs fronted the money for Joseph's tuition.
During the course of the 1998-1999 school year, Plaintiffs continued to
pursue their administrative remedies. The statutory scheme in New York
provides for a two-tier system of administrative review. N Y Educ. Law
§ 4404 (McKinney 1999). For reasons that are not relevant here, the
impartial hearing officer ("IHO"), who presided over the initial
hearing, did not reach a decision until July 7, 1999. The IHO held that
the proposed IEP for the 1998-1999 school year was inadequate to meet
Joseph's special needs, Kildonan was an appropriate placement, and that
Plaintiffs were entitled to reimbursement for Joseph's tuition and the
costs of a private speech pathologist, Gerard Brooks. The District filed
a timely appeal invoking the second tier of administrative review.
Unfortunately, the administrative review process does not always
coincide with the academic calendar. Disputes often are not resolved
before an interim decision must be made regarding the student's education
while the parents and school district continue to debate what placement
is in the best interests of the child. This is such a case. Before the
SRO reached a decision on the District's appeal regarding Joseph's
placement during the 1998-1999 school year, which was by then completed, a
meeting was convened on September 2, 1999 to discuss Joseph's placement
for the 1999-2000 term. An IEP was proposed placing Joseph back at
Arlington High School. Plaintiffs did not accept this IEP and continue to
enroll Joseph at Kildonan to date. Plaintiffs also continued to fund
Joseph's tuition for the 1999-2000 school year.
On December 14, 1999, the SRO reached a decision regarding the
District's appeal. The SRO held that the District had not met its burden
to demonstrate that the IEP proposed for the 1998-1999 school year was
properly tailored to meet Joseph's needs, and that the services provided
by Kildonan were appropriate. Accordingly, the SRO upheld the IHO's award
of tuition reimbursement. However, the SRO reversed the IHO's award of
for the services of Gerard Brooks, the speech pathologist. In their
submission dated February 9, 2000, Plaintiffs stated that the District
has "not paid us for the services of Gerard Brooks as ordered by the
SRO." Plaintiffs apparently misunderstood that portion of the SRO's
decision. The SRO held that the District is not responsible for the cost
of services provided by Gerard Brooks. Plaintiffs may appeal that portion
of the SRO decision pursuant to 20 U.S.C. § 1415 (i)(2) and N Y
Educ. Law § 4404(3). However, unless and until a court overturns
that portion of the SRO decision, Plaintiffs are not entitled to
reimbursement for the cost of the speech pathologist.
As a result of the SRO decision, the District reimbursed Plaintiffs for
Joseph's tuition for the 1998-1999 school year by check in the amount of
$20,750.00 dated January 24, 2000. The District maintains that the
payment in no way affects its right to appeal the SRO decision, and has
not yet decided whether it will, in fact, pursue an appeal.*fn1
On January 7, 2000, Plaintiffs requested a due process hearing for the
purpose of seeking reimbursement for the 1999-2000 school year, and
challenging the appropriateness of the recommended public school program
and placement for Joseph for the 1999-2000 term. By virtue of the
disagreement over Joseph's IEP for the 1999-2000 school year and
Plaintiffs' initiation of the administrative review process, the parties
have begun anew the same process that was just recently completed with
respect to the 1998-1999 school year.
The District disagrees. It maintains that Joseph's current educational
placement is the Arlington High School. According to the District, the SRO
decision issued in December 1999 was limited to the 1998-1999 school year
and has no prospective effect on either placement or payment. The
District asserts that "plaintiffs have made no contention of relatedness
concerning their claims for the 1999/00 school year with their claims
previously before this Court concerning the 1998/99 school year."
(Defendant's Response to Second Set of Judicial Interrogatories pp.
1-2). Consequently, the District maintains that Plaintiffs must first
exhaust their administrative remedies before seeking relief for the
1999-2000 term in this Court.
Although the District is correct that it is premature for this Court to
rule on the appropriateness of the 1999-2000 IEP before it is finally
adjudicated at the administrative level, including a possible appeal to
the SRO, Joseph's "current educational placement," as that phrase is used
in the Act, is disputed by the parties. Since Plaintiffs have made clear
their intentions to continue to enroll Joseph at Kildonan, at least until
the current dispute over placement has been settled, financial
responsibility for his tuition during this interim period must also be
determined. The Act's stay-put provision provides in relevant part that
"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." 20 U.S.C. § 1415 (j). "This provision is, in
effect, an automatic preliminary injunction." Zvi D. v. Ambach,
694 F.2d 904, 906 (2nd Cir. 1982). Parents seeking to invoke the stay-put
provision of the Act need not exhaust their administrative remedies
first. Were exhaustion required, it would defeat the purpose behind the
stay-put provision, which determines the child's interim placement during
the pendency of administrative proceedings. Cole v. Metropolitan
Government of Nashville and Davidson County, Tenn., 954 F. Supp. 1214,
1221 (M.D.Tenn. 1997) ("Indeed, the protection of the stay put rule would
be of little benefit if the plaintiffs are forced to proceed with
administrative remedies in order to apply it. . . . [T]he rule is
intended to protect the student during the challenge to the change in
placement."). Since there is clearly a dispute between the parties over
what Joseph's current educational placement is, Plaintiffs are presently
properly before this Court, on that issue as well as on the related issue
of tuition payment.
As the Second Circuit noted in Zvi D., "[p]ayment and placement are two
different matters." Zvi D., 694 F.2d at 908. Nevertheless, as in the case
at bar, where both payment and placement are the subjects of dispute, the
one determines the other. Accordingly, I will consider each issue in
A. The Current Educational Placement
The Supreme Court has held that "parents who unilaterally change their
child's placement during the pendency of review proceedings, without the
consent of state or local school officials, do so at their own financial
risk." School Committee of Town of Burlington, Mass. v. Department of
Educ. of Mass., 471 U.S. 359, 373-374, 105 S.Ct. 1996, 85 L.Ed.2d 385
(1985). Therefore, where parents reject a proposed IEP and unilaterally
enroll their child in a private school in contravention of the stay-put
provision, they must front the money for their child's tuition. However,
retroactive reimbursement is not barred in the event that a court, or an
administrative decision that has become final pursuant to
20 U.S.C. § 1415 (i)(1), upholds the parents'
private placement. Burlington, 471 U.S. at 372, 105 S.Ct. 1996. As applied
to the case at bar, Plaintiffs violated § 1415(j) when they rejected
the proposed IEP for the 1998-1999 school year and enrolled Joseph at
Kildonan.*fn2 Accordingly, Plaintiffs were responsible for Joseph's
tuition in the first instance.
The Supreme Court in Burlington also held that an administrative
decision in favor of the parents and the private school placement "would
seem to constitute agreement by the State to the change of placement."
Burlington, 471 U.S. at 372, 105 S.Ct. 1996. This refers to that portion
of the stay-put provision which provides that the child remain in the
current educational placement unless the parents and State or local
education agency "otherwise agree." 20 U.S.C. § 1415 (j). Therefore,
once the parents receive an administrative decision in their favor, the
current educational placement changes in accordance with that decision,
and the parents are no longer in violation of the stay-put provision.
This holding was later carried into the regulations as
34 C.F.R. § 300.514 (c).*fn3 Turning to the case at bar, once the
SRO issued its decision in December 1999, determining that ...