K.K. v. William S. Hart Union High School District, No. CV 22-2398, 2022 WL 2162016, 80 IDELR 271 (C.D. Cal. Apr. 20, 2022), is a recent case of interest concerning the application of the maintenance of placement (“stay-put”) rule, 20 U.S.C. § 1515(j). The case involved a 20-year-old student with developmental delays, bipolar disorder, and autism. The student had a history of suicidal ideation, homicidal threats, and aggression. The district placed her in an out-of-state private residential treatment center in December 2020 pursuant to her IEP; in January 2022 an agreed amended IEP spelled out that the student was to receive residential treatment services 1440 minutes per day, in an individual setting; specialized academic instruction 360 minutes per day; individual counseling120 minutes per week; and parent counseling 120 minutes per month.

The next month, however, the treatment center notified the parent it was closing its program for young adults. The parent filed a motion with the state office of administrative hearings asking for an order that the school district maintain the student’s placement at the treatment center or offer her a comparable residential program. An ALJ granted the motion, ordering that the “stay put placement shall be in a nonpublic residential placement with related services including specialized academic instruction, individual counseling, parent counseling, college awareness services, vocational counseling services, and career awareness services.” 2022 WL 2162016, at *2.

The district then proposed an amended IEP offering the student home and hospital academic instruction 300 minutes per week; individual counseling 50 minutes per week; parent and family counseling 50 minutes per week; behavior intervention implementation services from a non-public agency 15 hours per week; and behavior intervention development services from a non-public agency 10 hours per month. The parent and student did not consent to the change. The student returned home, and district provided behavioral services for 15 hours per week but did not comply with the ALJ’s order; the student did not receive any academic services. The parent filed suit, seeking a temporary restraining order requiring the district to provide services comparable to those provided in the last-agreed IEP, and an order to show cause why a preliminary injunction should not be issued.

The court granted the motion. It ruled that:

Defendant must provide plaintiff with the following services:

    1. 24 hours a day of supervision, 7 days a week, except if plaintiff is attending a school program outside the home, in which case the number of hours may be reduced by the amount of time spent outside the home with support.
    2. Two daytime staff trained in restraint techniques when initiating physical restraint, medication administration, and in providing daily hygiene assistance as needed.
    3. One overnight awake staff if she is cooperative with nighttime medications.
    4. A case manager/supervisor to manage milieu staffing and emergency issues.
    5. 360 minutes daily of individualized educational work with a certified special education teacher, including for the extended school year. This could be attendance at a public or non-public school program for impaired adults 18-22 years old. The program should have no more than a 1-3 teacher-student ratio for educational or vocational activities, with 1-1 support available when needed.
    6. Medical, nursing, and psychiatric services, including psychiatric visits once every two weeks and available on-call if needed, a nutritionist, nursing care of 2-5 hours per week, 60 minutes a week of individual counseling in two 30-minute sessions, 180 minutes of family counseling and support services while she is in the family home.
    7. Applied behavioral analysis services, up to 15 hours a week, unless provided by the school program.
    8. Transportation to and from school, medical appointments, and community activities.

Id. at *10.

In supporting its decision, the court recited the traditional standard for entry of preliminary relief, that: “(1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest,” Id. at *3. The court noted that the parent framed the argument this way rather than relying on the proposition that granting the relief should be automatic under section 1415(j).

On likelihood of success on the merits, the court cited the ALJ’s order, and rejected the district’s argument that the parent agreed to the proposed new IEP and waived the protection of the order by agreeing to take the student home when the program closed. As the court pointed out, the parent had no choice, and the district still had not obeyed the ALJ order. Similarly, the acceptance of the limited services did not constitute a waiver. As conservator, the parent had the ability to assert the rights of the student. The court further relied on authority that residential placement may fall within the scope of an IEP, and that “when there is a change in circumstances, such as the closure of a school, “a district is required to provide the student with a similar placement which closely replicates the last agreed-upon and implemented placement.” Id. at *6 (internal quotation omitted). The district’s failure to identify a comparable placement and its asserted difficulty in finding one were no excuse. The loss of educational opportunity constituted irreparable harm, even if community psychiatric services were provided. Failure to provide the residential setting led to an emergency psychiatric hospitalization after the student returned home. Equities and the public interest also weighed in favor of the student.

Closing of residential facilities is a recurrent situation in disputes between parents and school districts that wind up in front of impartial hearing officers. The district court’s entry of preliminary relief in support of the decision of ALJ gives additional authority for the proposition that a district must identify and offer a comparable placement when an existing residential program shuts down and the parent does not agree to a change in the student’s IEP.