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MURPHY v. ARLINGTON CENT. SCH. DIST. BD. OF EDUC.

March 1, 2000

PEARL MURPHY AND THEODORE MURPHY, PLAINTIFFS,
V.
ARLINGTON CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, DEFENDANT.



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.

While the District's appeal was pending before the state review officer ("SRO"), on August 8, 1999 Plaintiffs filed an action in the Northern District of New York. Plaintiffs sought a temporary restraining order requiring the District to fund Joseph's tuition at Kildonan during the pendency of the District's appeal challenging the IHO's decision. The case was subsequently transferred to this Court and referred by me to Magistrate Judge Maas. Judge Maas filed a report and recommendation in which he concluded that this Court lacked subject matter jurisdiction over the instant action as a result of Plaintiffs' failure to exhaust their administrative remedies as the Act requires. He also found that Kildonan should not be considered Joseph's current educational placement. Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, Plaintiffs filed objections to the Magistrate Judge's report. In light of those objections, I reserved decision in order to develop a more complete record and to allow for further briefing regarding the timeliness of the District's appeal to the SRO and the reasons for the SRO's delay in making a decision. Subsequent events and circumstances have rendered the Magistrate Judge's report, while careful and thorough, almost entirely inapplicable.

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 reimbursement

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.

Plaintiffs' contend that in light of the SRO decision issued in December 1999, Kildonan is now Joseph's current educational placement and should remain his placement during the pendency of these proceedings. Accordingly, Plaintiffs argue that the District now has an ongoing financial responsibility to fund Joseph's tuition at Kildonan 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. 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.

II. DISCUSSION

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 turn.

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 ...


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