Opinion
Civil No. 02-4065 ADM/AJB
June 17, 2003.
Sonja D. Kerr, Esq., Kerr Law Office, Inver Grove Heights, MN, appeared for and on behalf of Plaintiff.
Nancy E. Blumstein, Esq., Ratwick, Roszak Maloney, P.A., Minneapolis, MN, appeared for and on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Plaintiff Sarah Pachl's ("Plaintiff" or "Sarah"), a minor by her parents, Kevin and Suzanne Pachl (the "Pachls"), Motion for Determination of Stay-Put and Request for Injunctive Relief [Docket No. 23]. On June 13, 2003, counsel for the parties presented oral arguments on their respective positions. For the reasons stated below, Plaintiff's Motion is denied.
II. BACKGROUND
Pursuant to the Individuals with Disabilities Education Act ("IDEA") § 1415(j), Plaintiff seeks a statutory injunction ordering a "stay-put" placement for Extended School Year ("ESY") education services for Plaintiff for the summer of 2003. See 20 U.S.C. § 1415(j). Defendant School Board of Independent School District No. 11 ("Defendant" or the "District") contests the applicability of IDEA § 1415(j), the "stay-put" provision, and contends that even if applicable, this section of the statute does not require the District to pay the full cost of Plaintiff's placement at an out-of-state residential facility preferred by the parents.
The present dispute is one chapter in a larger history between the parties involving the education of eleven-year-old Sarah Pachl. Sarah presently attends her neighborhood school during the regular school year, and the parties agree that she requires ESY services during the summer. In the spring of 2001, the Pachls initiated a due process hearing requesting Sarah's ESY placement at Children's Care Hospital and School ("CCHS") in Sioux Falls, South Dakota. Defendant opposed this placement as too restrictive, believing it could provide an appropriate ESY program locally as it had previously done, and in accordance with its education of Sarah during the school year. Peterson Aff. ¶ 5. The hearing and subsequent appeal resulted in a determination by the Hearing Review Officer that the District was capable of providing ESY services and denying the Pachl's request for placement at CCHS. Id. ¶ 6. This led to the filing of further proceedings, distinct from the instant suit, in federal district court.
Together, the IDEA and Minnesota law create an administrative procedural scheme for adjudicating parental challenges to an education agency's assessments and recommendations. See 20 U.S.C. § 1415; Minn. Stat. § 125A.09.
In the spring of 2002, another due process hearing was requested, this time by the District, seeking approval of a proposed Individualized Education Program ("IEP") for Sarah. Prior to the date of the hearing, the parties reached a mediation agreement (the "Agreement") in which, among other things, the District agreed to provide partial funding for Sarah's attendance at CCHS for the summer 2002 program. See Agreement ¶ 2 (Kerr Aff. Ex. 2). The Agreement begins by setting forth terms for an educational evaluation of Sarah. Id. ¶ 1. Next, paragraph 2, the focal section in this case, addresses ESY education for the then-approaching summer:
Sarah will attend CCHS summer 2002 as a unilateral parent placement for ESY. The District will sign a contract with CCHS for the educational component not to exceed $3250.00. CCHS is 8 weeks during summer 2002.
Id. The following paragraph states that Sarah would receive 24 hours of homebound ESY tutoring for the four weeks she would not be attending CCHS in South Dakota. Id. ¶ 3. The Agreement then recites that the "proposed IEP of Jan 2002 will become an interim IEP for Sarah effective May 6, 2002. This interim IEP will be Sarah's `stayput' unless judicially changed otherwise in the event of a dispute." Id. ¶ 4.
Pursuant to this Agreement, the District paid approximately $3200 of the cost of CCHS for the 2002 term and the Pachls' insurer provided $11,983.99. Pachl Aff. ¶ 9. In October 2002, the parents' insurer changed and on May 15, 2003, the new provider formally denied coverage for CCHS costs for summer 2003. Therefore, the Pachls seek full payment for CCHS's 2003 program (estimated to be $19,433.50) from Defendant. The District maintains the CCHS was a parental, not a District placement, and recommended in its proposed IEP of April 1, 2003, that Sarah receive 2003 ESY in her community, to be provided by the District. Peterson Aff. ¶ 16; Pachl Aff. Ex. 32 (proposed IEP and related information). The Pachls rejected this proposal and now move to enjoin Defendant to pay for 2003 ESY placement at CCHS.
A letter dated February 28, 2003, from Defendant to Mr. Pachl reiterates the District's position that "CCHS during the summer of 2002 was a unilateral parent placement, not a District placement." Pachl Aff. Ex. 25.
III. DISCUSSION
A. The IDEA
In relevant part, the IDEA provides that "during the pendency of any proceedings conducted pursuant to this section, unless the State or local education agency and the parents agree otherwise, the child shall remain in the then-current educational placement of such child." 20 U.S.C. § 1415(j). The purpose of this "stay-put" provision is to "preserve the status quo pending resolution of judicial or administrative proceedings" in which the parties dispute the appropriate placement of the child. Monahan v. Nebraska, 491 F. Supp. 1074, 1088 (D.Neb. 1980), aff'd in part, vacated in part, remanded by 645 F.2d 592 (8th Cir. 1981). It thus acts as "an automatic preliminary injunction," such that a court need not consider the usual equitable factors required to secure injunctive relief. Id.; see generally Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (expounding test for equitable injunction).
1. Exhaustion of Remedies
The District initially argues this Court lacks jurisdiction to hear this matter due to the Plaintiff's failure to exhaust her administrative remedies regarding the 2003 ESY placement. Plaintiff counters that any attempt to do so would be futile and that she is therefore excused from this requirement. Though adherence to the administrative review process is generally required before seeking relief in a judicial proceeding, a party may circumvent these procedures by demonstrating that exhaustion would be inadequate to protect the asserted rights or futile as a matter of law or practicality. Honig v. Doe, 484 U.S. 305, 326-27 (1988). The CCHS program began yesterday, June 16, 2003.
The Pachls were informed of their insurer's denial of coverage for this program May 15, 2003. Accordingly, they could not have been guaranteed a resolution to the dispute prior to the commencement of this ESY placement. Even if, as Defendant advocates, the Pachls should have requested a due process hearing immediately upon receipt of Defendant's 2003 IEP recommendation, there would have been no certainty of a final, appealable administrative decision by June 16. The Court, therefore, finds that exhaustion of administrative remedies in the present case would have been futile as a practical matter and that Plaintiff's failure in this regard does not defeat the instant Motion. See Honig, 484 U.S. at 326-27.
2. Stay-Put Placement
The District additionally asserts that even if the stay-put provision may be invoked, the applicable placement would not be CCHS, but rather the last public agency ESY placement. It submits that the CCHS enrollment was a unilateral parental placement and, as such, the District has no responsibility to bear the cost of Sarah's participation in the program. Plaintiff avers that the mediation Agreement establishes Defendant's obligation to pay for CCHS until a determination on the underlying dispute is reached.
A school district is not responsible for the cost of a unilateral parental placement at a private institution unless the program is necessary to fulfill the student's right to a free appropriate public education ("FAPE") and public placement is inadequate. Stockton v. Barbour County Bd. of Educ., 112 F.3d 510 at *3 (4th Cir. 1997) (table decision) (citing Florence County Sch. Dist. v. Carter, 510 U.S. 7, 9-10, 15 (1993); School Comm. of Burlington, Mass. v. Department of Educ. of Mass., 471 U.S. 359, 369-70 (1985)). Thus, parents choosing private programs over recommended public accommodation must proceed at their own financial risk and seek reimbursement after the fact. Burlington, 471 U.S. at 373-74.
Under the circumstances of this matter, the applicability of the stay-put rule is dubious, given its goal of preserving the status quo in order to avoid disruption of the student's education by unilateral action. See, e.g., Monahan, 491 F. Supp. at 1088. Although Sarah attended CCHS last summer, she attended her neighborhood school during the regular academic year, thereby making public placement with the District her most recent, and a mutually accepted, educational experience. However, even applying § 1415(j) to the ESY placement, it does not mandate enforcement of a "parent's private placement" that was not recommended, nor deemed appropriate, by the school district. Zvi D. v. Ambach, 694 F.2d 904, 908 (2d Cir. 1982); see also Peter G. v. Chicago Pub. Sch. Dist. No. 299 Bd. of Educ., No. 03 C 0687, 2002 WL 818008, at *5 (N.D.Ill. April 30, 2002). Even where, as here, the parties had mediated an agreement under which the district funded a portion of the private placement, participation in a private program is not considered the child's "then-current educational placement" within the meaning of the IDEA. See Zvi D., 694 F.2d at 908; Peter G., 2002 WL 818008, at *5.
In both Zvi D. and Peter G., the respective school authorities and parents disagreed as to proper placement for the child. Zvi D., 694 F.2d at 907; Peter G., 2002 WL 818008, at *1. Before the due process hearing, the parties in Peter G. reached a settlement agreement wherein the district agreed to reimburse the parents for private education and related services expenses for a specified period of time. Peter G., 2002 WL 818008, at *1. When the parents sought a stay-put order to maintain this funding for the child's private tuition, the court held that the district's agreement, pursuant to the settlement negotiations, did "not constitute a public agency placement" and therefore was not within the purview of IDEA's stay-put provision. Id. at *5. Instead, the court concluded that the initially-recommended public placement was the proper stay-put location. Id. Similarly, in Zvi D., the court ruled that a stipulation providing reimbursement for a private institution was not the then-current placement, stating that "[p]ayment and placement are two different matters." Zvi D., 694 F.2d at 908.
In the instant case, the applicable ESY stay-put is the agreed upon placement of the summer of 2000, the last placement approved of and authorized by the District. Plaintiff attempts to distinguish the present facts from those of the decisions discussed above by arguing the parties specifically agreed CCHS would function as the stay-put in the event of a dispute. The text of the Agreement reveals, however, that there was no specification of CCHS as the ESY stay-put placement, and that the only reference to a "stay-put" in the two-page, handwritten Agreement, is in regard to the proposed IEP of January 2002. See Agreement ¶ 4. In fact, the terms of Sarah's attendance at CCHS are set forth in paragraph 2, while the stay-put language cited by Plaintiff, establishing the interim IEP, is found in paragraph 4, a separate component of the mediation agreement. Id. ¶¶ 2, 4. Plaintiff proffers nothing articulating an express assignment of CCHS as a stay-put placement by the District. By contrast, paragraph 2 explicitly states that "Sarah will attend CCHS summer 2002 as a unilateral parent placement for ESY," remarking that "CCHS is 8 weeks during summer 2002." Id. ¶ 2 (emphasis added). Thus, by its plain terms, the Agreement clarifies that the CCHS placement was at the Pachls' discretion for the specific term of eight weeks during 2002. The District's willingness to pay for the educational portion of this program does not render it a public placement subject to § 1415(j). See Peter G., 2002 WL 818008, at *5. Therefore, the Motion for injunctive relief pursuant to the IDEA "stay-put" provision is denied.
The policy implications of such situations also militate in favor of this conclusion. A school district participating in conciliation should not be penalized for making a one-time agreement to assist in meeting the costs of a summer program of the parent's choice as part of mediating a larger dispute over educational placement.
B. Equitable Preliminary Injunction
Although Defendant discussed equitable remedies both at the Motion hearing and in its memorandum, Plaintiff presented no argument for an equitable injunction, relying on the IDEA's statutory injunction. Accordingly, issuance of a preliminary injunction need not be addressed. In conclusion, while the Court can readily understand the Pachls' desire to send their child to the program of their choice, from which Sarah benefitted last summer, the District's resources are limited, and as the matter presently stands, the District has fulfilled its obligations under the law in the provision of ESY and FAPE for Sarah.
In any case, the lack of irreparable harm would defeat any such request, as Plaintiff cannot establish at this juncture that CCHS is necessary under the law. See Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 738 (8th Cir. 1989) (affirming that failure to show irreparable injury is sufficient for denial of an injunction). Students are not entitled to the very best or preferred placement, but to a FAPE, "personalized instruction with sufficient support services to permit the child to benefit educationally," which is being offered by the District in the present case. See Board of Educ. v. Rowley, 458 U.S. 176, 203 (1982); Peterson Aff. ¶ 6 (stating the 2001 due process hearing resulted in the Hearing Review Officer finding the district capable of providing appropriate ESY services). Furthermore, if it is later determined that CCHS is mandated by the IDEA, the Pachls are entitled to reimbursement from Defendant. See Burlington, 471 U.S. at 373-74.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Plaintiff's Motion for Determination of Stay-Put and Request for Injunctive Relief [Docket No. 23] is DENIED.