The litigation on the West Coast concerning the Anchorage school district may contain an important lesson for impartial hearing officers. In Anchorage Sch. Dist., v. M.G., No. 3:17-cv-00157-SLG, 2018 WL 1041535, 71 IDELR 192 (D. Alaska Feb. 23, 2018), the court granted the parents’ motion for a stay-put order establishing that the student’s current educational placement would be Perkins School for the Blind. In May of 2016, the parents and the school district developed an IEP for the student that called for residential placement. The parties could not agree on which residential placement would be appropriate, however, and went to hearing on the issue. The hearing officer determined that Perkins was the appropriate placement. The decision required the district to pay for the student’s attendance at Perkins from May 1, 2017, the day he first attended, through February 17, 2018, and did not provide for any placement after that date. The opinion did, however, contain a statement expressing hope that before February 17, 2018 the parties could collaborate on evaluating the student to determine whether the student could return to the school district or benefit from more time at Perkins.
Some progress was made on evaluating the student and drafting a new IEP, but a new IEP was not completed by February 17, and the district issued a notice indicating intent to place the student in an interim diagnostic placement in the district. The court reasoned that under the stay-put provision of the IDEA, 20 U.S.C. § 1415(j), the current educational placement is that in the last implemented IEP. The most recently implemented IEP provided for residential placement. The court did “not read the Hearing Officer’s decision to establish a multi-stage IEP in which M.G.’s placement at Perkins definitively ended on February 18.” Id. at *2.
The Ninth Circuit Court of Appeals affirmed. 735 F. App’x 441, 72 IDELR 233 (9th Cir. Aug. 22, 2018). It stated that “Because the hearing officer’s decision confirmed that M.G.’s placement at Perkins was appropriate, Perkins constitutes M.G.’s ‘current educational placement’ for purposes of 20 U.S.C. § 1415(j).” Id. at 442. “The School District is required to maintain that placement pending the court review proceedings pursuant to section 1415, notwithstanding the funding timeline contemplated in the hearing officer’s decision.” Id. (internal quotation marks and citation omitted). The court distinguished a situation in which the then-current education placement is that established by a multi-stage IEP that places a child in a private school but expressly requires a transition to public school at the start of the next school year, facts that led to a different result in N.E. v. Seattle School District, 842 F.3d 1093, 69 IDELR 1 (9th Cir. 2016). The court declared, “In N.E., the IEP provided concrete guidelines for the second phase of the student’s education; here, no such guidelines exist for M.G.’s schooling after February 18, 2018.” 735 F. App’x at 442.
Neither the district court nor the court of appeals broke new legal ground in their decisions. The importance of the case is more its cautionary tale for impartial hearing officers issuing rulings on maintenance of placement. The order should not be open to interpretation as to whether the current educational placement is in some respect limited in time. What is the placement pursuant to the last agreed-upon IEP is the current placement. If the parties come to an agreement after the issuance of the IHO’s order to change that placement, they have that power. But a time limit and an expression of hope make a recipe for extensive – and expensive – ongoing litigation.