The student at the center of the case has autism and ongoing gastrointestinal care needs. During the 2024–25 school year he attended Bradley Hills, a public school in Bethesda. Over the summer, the family moved to Germantown, and, based on the new address, Montgomery County Public Schools (MCPS) assigned him to Fox Chapel Elementary School. In July 2025, the parent filed a due process complaint, alleging that MCPS did not provide the student necessary reasonable “accommodations relating to his medical and feeding needs, transportation needs, and need to be near medical care; failed to evaluate [the student] and consider his behaviors and symptoms in a timely and adequate manner; failed to provide an appropriate IEP placement; and failed to maintain his placement at Bradley Hills, which [the parent] deemed necessary to provide him with a free appropriate public education (‘FAPE’) in the least restrictive environment.” Id. at *1. The parent asked that the student be allowed to remain at Bradley Hills under stay-put and filed a motion for stay-put relief with the office of administrative hearings.

In late August, the Administrative Law Judge (ALJ) granted the motion, but the parent promptly sought clarification that the ruling required the student to remain at Bradley Hills specifically. That clarification motion was still pending on September 17, when the parent filed a pro se federal suit alleging violations of IDEA, Section 504, and the Americans with Disabilities Act (ADA) tied to the transfer to Fox Chapel, along with a motion for temporary relief. The ALJ later denied the clarification motion, ruling that the move to Fox Chapel did not amount to a change in educational placement because the basic education program and support services were not claimed to have been fundamentally changed or eliminated.

The federal district court first addressed exhaustion and ruled that the parent did not need to exhaust administrative remedies in seeking a stay-put injunction. The court noted that the Fourth Circuit has allowed a district court to consider a preliminary injunction motion to implement stay-put while due process proceedings are still pending, and observed that other circuits have explicitly said exhaustion does not apply because a belated decision will not remedy the alleged violation and would not vindicate the right to remain in the current placement. Citing the exhaustion requirement, however, the court dismissed all claims to the extent they sought anything other than a stay-put injunction.

On stay-put itself, the court leaned on circuit precedent: “‘the term ‘educational placement’ as used in the stay-put provision refers to the overall educational environment rather than the precise location in which the disabled student is educated.’ AW ex rel. Wilson v. Fairfax Cnty. Sch. Bd., 372 F.3d 674, 676 (4th Cir. 2004).” 2025 WL 2962754, at *4. The parent, the court said, offered no grounds to dispute that the new placement was identical in specialized instruction, related services, and other supports. Without a material difference in the educational services, the stay-put requirement was satisfied.

The court acknowledged, however, that “issues relating to the commute to or from school could, under certain circumstances, provide a basis to conclude that a change in the geographic location of an educational placement results in a material change that would violate the stay-put requirement . . . .” Id. at *5. The parent argued that the transfer prevented safe implementation of the Individualized Education Program (IEP) because of the new school’s distance from the student’s gastrointestinal specialist and his feeding therapy and medical providers, and that a long commute carried serious medical risks including motion sickness, reflux, and g-tube complications. But the parent had not presented evidence of those matters to the ALJ and furnished only limited information about them. On that record, the court said, the ALJ properly denied the motion to enforce stay-put.

The parent did submit various medical documents to the court in lieu of a reply brief on the motion for temporary relief. The court said the commute argument and the new evidence, including letters from the student’s medical providers, should be presented to the ALJ in the first instance. The court therefore denied the motion for a preliminary injunction, dismissed the portions of the case that had not already been dismissed on exhaustion grounds, and remanded to the ALJ for consideration of stay-put relief. The court added that the parent “may also, as suggested by the Board, submit a request for a Change of School Assignment based on [the student’s] unique circumstances, to which [the school system] should give careful consideration.” Id. at *6. The dismissal was without prejudice to refiling.

In the absence of a requirement to exhaust a request for stay-put injunctive relief in the first place, it may seem odd for the court to remand the stay-put issue to the ALJ. But the parent was the one who sought stay-put relief from the ALJ to begin with, and parents do frequently pursue that option. A more basic concern with the decision may be that, since “placement” embodies “place,” the idea that a change of place is not a change of placement might seem wrongheaded. The courts are widely of the view, though, that an interpretation consistent with that of the Fofanah court is correct, and it is true that school districts frequently change school assignments of children without disabilities based on factors such as moves within the district and availability of space and personnel.

The significance of Fofanah lies in what it confirms within its own four corners: stay-put protects the overall educational environment rather than a specific building, so a reassignment that leaves specialized instruction, related services, and other supports intact ordinarily will not trigger stay-put. At the same time, the opinion leaves open that commute-related circumstances can, in a given case, render a geographic change material enough to violate stay-put – but only on a developed record. And because a parent need not exhaust administrative remedies before seeking a stay-put injunction, yet the ALJ remains the proper forum for evidence that was never presented there, the decision illustrates how these parallel tracks can meet, and how a case can be routed back for the factual record the provision’s application requires.

The procedural history was complex and involved multiple ALJ decisions, only two of which were before the court. In an initial decision, an ALJ found that the school district failed to offer the student a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA) and ordered reimbursement for tuition at the private school selected by the parents. Two subsequent ALJ orders interpreted that reimbursement decision as an express determination that the private school was the appropriate placement for stay-put purposes. In a later clarification, however, the ALJ who issued the original reimbursement decision explained that the decision addressed appropriateness only for reimbursement and did not decide whether the private school was appropriate for stay-put.

The Ninth Circuit viewed that clarification as dispositive. It compared the case to L.M. v. Capistrano Unified School District, 556 F.3d 900 (9th Cir. 2009), where reimbursement had been awarded without an adjudication that the private placement was appropriate for stay-put. As in L.M., the court emphasized that the decision maker ultimately disavowed having reached the merits of whether the private placement constituted the student’s then-current educational placement for stay-put purposes.

Under the IDEA regulation at 34 C.F.R. § 300.518, a placement becomes the stay-put placement if a hearing officer agrees with the parents that a change of placement is appropriate. The dispute in Landers therefore turned on whether the initial reimbursement decision reflected such an agreement. Relying on the ALJ’s later clarification, the Ninth Circuit concluded that it did not and that stay-put relief was therefore unavailable.

In a concurring opinion, Judge Christen acknowledged that, absent the ALJ’s later clarification issued more than a year after the reimbursement decision, it was understandable why the parents and subsequent ALJs viewed the original decision as establishing the private school as the stay-put placement. Judge Christen observed that the district court’s reversal of the stay-put orders could have been avoided and noted that the parents were not barred from filing a new due process complaint to litigate stay-put, though it was regrettable that additional proceedings would be required.

In a separate, non-precedential decision issued the same day, the Ninth Circuit affirmed the tuition reimbursement and attorneys’ fees awards in favor of the parents.

The decision reflects that a reimbursement award alone does not automatically establish a private placement as the stay-put placement, and that clarity as to whether a decision addresses appropriateness for reimbursement, stay-put, or both can be determinative of the availability of stay-put relief.

The student in Davis had autism spectrum disorder and other conditions and exhibited aggressive behavior toward others, self-injury, and property destruction. He had been placed in a residential facility by the school district, but the facility unilaterally discharged him at the end of October 2021. The district asserted that it was unable to identify a replacement residential placement and instead offered in-home services or virtual services with a support aide in a high school classroom. At the same time, the district continued to search for a new residential setting, but the student was rejected by nineteen residential facilities.

Shortly before the residential facility discharged the student, the parent filed a due process complaint. After the discharge, the parent sought judicial relief, asking the district court to order the continuation of a residential placement or comparable services under the IDEA’s stay-put provision. The district court denied the request for a temporary restraining order and preliminary injunction.

The court of appeals affirmed. It concluded that the stay-put mandate did not apply because the District of Columbia had not effectuated a fundamental change in the student’s educational placement by attempting to alter or undo the services required by the IEP. 80 F.4th at 326. Instead, the residential component of the IEP became unavailable for reasons outside the district’s control. Id. at 327. The court emphasized the district court’s finding that the district had conducted a thorough and ongoing search for an appropriate placement.

The court further explained that even if the stay-put provision were triggered, relief would still be unavailable. Section 1415(j) contemplates maintaining a then-current placement, but “a student cannot remain in an unavailable placement.” Id. at 328. Under the circumstances presented, the statute did not require the district to create an alternative placement to replace the one that no longer existed.

The court noted, however, that the denial of stay-put relief did not foreclose other forms of judicial intervention. It left open the possibility that a court could grant injunctive relief under traditional equitable standards rather than through the automatic operation of the stay-put provision. The court also observed that if an administrative hearing officer or a court ultimately determined that the district failed to provide a free appropriate public education, compensatory education or retroactive reimbursement could be warranted. Id. at 330.

Taken together, the decision reflects that stay-put operates to preserve an existing placement, not to require districts to recreate one that has become unavailable through circumstances beyond their control.

The court first considered the claims of student K.T., who turned 21 in December 2021. The hearing officer issued a pendency order on August 23, 2022, requiring the New York City Department of Education (DOE) to fund transportation to and from the student’s home and iBrain retroactive to July 6, 2022, the date the due process complaint was filed. The DOE did not appeal that order. As a result, the court held that the order became final and enforceable, and the DOE was required to comply with it.

The court did not decide whether K.T.’s age otherwise terminated eligibility for pendency services under 20 U.S.C. § 1415(j). Instead, the court emphasized that the enforceability of the pendency order turned solely on the DOE’s failure to appeal. The court noted that a separate administrative proceeding addressed whether K.T. had aged out of IDEA eligibility and whether pendency terminated for the 2022–23 school year. Any relief relating to pendency after the purported termination of the August 2022 order would need to be resolved in that separate proceeding. For purposes of the case before it, however, the court ordered full compliance with the pendency order for the period during which it remained in effect and retained jurisdiction to resolve any disputes regarding the timing of its termination.

The court next addressed claims by ten families seeking reimbursement for transportation costs under pendency orders. The court explained that the pendency orders themselves defined the scope of the DOE’s obligation. For four students, the orders expressly required reimbursement only for transportation services “actually provided.” The court granted summary judgment to the DOE on those claims, reasoning that transportation services are “actually provided” only when a student is transported to and from school.

For the remaining six students, the pendency orders required reimbursement for transportation services “to and from iBrain” or used similar language without expressly limiting reimbursement to services actually utilized. The parents argued that this language encompassed all transportation costs incurred under their contracts, regardless of whether the students used the services. The court concluded that the orders were ambiguous and that clarification from the issuing hearing officers was required. The court remanded those cases to the IHOs for clarification and noted that additional factfinding might be necessary, including evidence regarding industry practices that may require parents to pay transportation providers regardless of usage.

The decision serves as a cautionary reminder that pendency orders must clearly specify the scope of required reimbursement. Ambiguous remedial language may result in remand, delay, and additional litigation to determine the precise obligations imposed on school districts.

The student, a sixteen-year-old classified with an emotional disturbance, attended an IEP meeting on June 15, 2023, at which the parent and the district agreed that the student required a twelve-month placement in a nonpublic residential school. The court therefore treated the IEP’s recommendation of a nonpublic residential placement as the student’s last agreed-upon educational program for stay-put purposes.

Despite this agreement, none of the thirteen residential schools to which the district referred the student agreed to accept her. The district instead proposed an interim public school day placement. The parent rejected that option and unilaterally enrolled the student at Crossroads Academy, a private residential school. The parent then filed suit seeking preliminary relief requiring the district to fund the Crossroads placement during the pendency of the dispute or until a suitable residential placement became available.

The district opposed the motion on exhaustion grounds, arguing that the parent was required to complete administrative proceedings before seeking judicial relief. The court rejected that argument, explaining that alleged violations of the IDEA’s stay-put provision, 20 U.S.C. § 1415(j), fall outside the exhaustion requirement under controlling Second Circuit precedent.

The district also relied on Ventura de Paulino v. New York City Department of Education, 959 F.3d 519 (2d Cir. 2020), to argue that funding a unilateral parental placement was impermissible. The court disagreed, distinguishing Ventura de Paulino on the ground that, in that case, the district had offered an available placement consistent with the agreed-upon program, whereas here, no residential placement conforming to the IEP was available. The Second Circuit had expressly identified such circumstances as potential candidates for injunctive relief.

The court concluded that this case presented the type of extraordinary circumstances contemplated in Ventura de Paulino. Because the district failed to offer any available placement consistent with the IEP, the parent demonstrated a likelihood of success on the merits. The court also found irreparable harm, noting that the parent could not afford the tuition and had borrowed funds to maintain the placement. Finally, the court held that the balance of equities and the public interest favored injunctive relief.

The decision underscores that when a district agrees that a residential placement is required but cannot identify an available school to implement that placement, stay-put may require funding of a parentally selected residential program during the pendency of due process proceedings.

The district initially found the student eligible for special education under the autism spectrum disorder category before she entered kindergarten in 2016. At the parents’ request, the district evaluated the student for hearing loss and reassessed her eligibility for autism. The district determined that the student was eligible under the IDEA category of hearing impairment, but no longer qualified under the autism category. An IEP was developed to address the hearing impairment, followed by additional assessments and a subsequent IEP for the 2017–18 school year.

At the beginning of the 2018–19 school year, the parents requested an independent educational evaluation (IEE), which the district granted, and they also filed a due process complaint. The 2017–18 IEP expired on November 2, 2019. The district delayed convening an IEP meeting during the 2018–19 school year, citing the pending IEE, the due process complaint, and a lack of parental cooperation. After receiving the IEE, the district continued to delay, asserting that the parents refused further assessments and that the due process matter remained pending. The district ultimately developed a new IEP in May 2019, shortly before the end of the school year.

The parents later filed multiple due process complaints. The claims before the court were limited to allegations that the district denied FAPE by delaying implementation of the 2019 IEP and by failing to provide FAPE during the 2018–19 school year.

The court concluded that the delay in convening an IEP meeting before January 2019 was likely not an IDEA violation. The court relied on evidence that the father had stated he would not participate in IEP meetings until completion of the IEE and found that the district had reasonable latitude in attempting to secure parental participation.

The court did find a likely procedural violation based on the 122-day delay between receipt of the IEE and development of a new IEP. Although the due process complaint triggered stay-put protections requiring the student to remain in her then-current placement, the court emphasized that stay-put does not excuse a district from maintaining a statutorily compliant IEP. 2022 WL 17818393, at *5 (quoting Anchorage School District v. M.P., 689 F.3d 1047, 1057 (9th Cir. 2012)).

Nonetheless, the court determined that the procedural violation did not result in a denial of FAPE. The hearing officer had found that the district’s continued implementation of the 2017–18 IEP during the 2018–19 school year adequately met the student’s needs. That conclusion was supported by evidence of the student’s above-average classroom performance, progress reports, and witness testimony.

The court also rejected several challenges to the due process hearing and review procedures, concluding that any procedural errors were harmless given the provision of FAPE during the relevant school year. The court addressed each claim in turn.

First, the court rejected the argument that the impartial hearing officer (IHO) acted improperly by denying the parents’ request for production of the student’s entire educational record. The IHO concluded that she lacked authority to compel production of the entire record and that, in any event, the request was irrelevant to the issues raised. The court further noted that the parents failed to identify specific relevant records that were missing.

Second, the court rejected the parents’ objection to limitations placed on the independent evaluator’s testimony. The district had received the IEE report before parental consent to its dissemination was obtained, but there was no dispute regarding the report’s findings. The IHO subpoenaed the evaluator but limited testimony to issues not already resolved, excluding matters deemed irrelevant.

Third, the court upheld the IHO’s decision to prohibit the student’s aunt from questioning witnesses. Although the aunt was permitted to sit with and advise the father during the hearing, the IHO barred her from questioning witnesses or addressing opposing counsel on the ground that doing so would constitute the unauthorized practice of law.

The court also rejected the parents’ Section 504 claim, which was based on the same factual allegations as the IDEA claim.

The case is notable for two reasons. First, it reflects the court’s view that a failure to have a current IEP in place does not necessarily result in a denial of FAPE where the student continues to receive adequate special education services under a prior IEP. The court contrasted this outcome with cases in which reliance on an outdated IEP was found to deny FAPE because the IEP no longer reflected the student’s present levels of performance or needs.

Second, the decision is noteworthy because courts infrequently address challenges to hearing officers’ evidentiary rulings in detail. Here, the court carefully reviewed and upheld multiple discretionary rulings made by the IHO during the hearing process.

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. 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.

The SRO refused to award compensatory education on the ground that implementation of the pendency placement agreed to by the parents and the school district put the student in the same position he would have been but for the denial of FAPE under the IEP proposed by the school district. The pendency arrangement consisted of related services provided daily in the mornings at a district school and daily instruction by a special education teacher in the afternoons at home or in the local public library. The SRO noted that the student made progress on most of his IEP goals during the school year with those services and achieved several short-term objectives. Moreover, said the SRO, the parents did not specifically identify further compensatory education services needed to put the student in the position he would have been had FAPE been offered.

On the motion for summary judgment appealing the SRO’s denial of compensatory education, the court first rejected an exhaustion argument, reasoning that even though the request for review of the IHO decision may have been procedurally deficient under state regulations for failing to indicate the relief to be granted by the SRO, the SRO recognized that the initial due process complaint asked for compensatory education, and on appeal the parents had asked for reversal of the IHO decision, which ruled in favor of the district and denied all relief.

Turning to the merits of the compensatory education claim, the court reasoned that an FAPE violation does not automatically trigger an award of compensatory education, and that the SRO considered the substantive adequacy of the services furnished during stay-put as well as the settings in which they were provided. The court declared: “This Court agrees with SRO Bates’ finding that no compensatory education was required to compensate A.K. for the denial of [a] FAPE because any deficiencies he had suffered already had been mitigated through his pendency placement. Therefore, A.K. was in the ‘position [ ]he would have occupied had the [D]istrict complied with its obligations under the IDEA.’” 2022 WL 95485, at *8 (quoting M.M. v. New York City Dep’t of Educ., No. 15-CV-5846, 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017)). The court went on to state that the parents failed to provide evidence about what additional services would be required to make up for any deficiencies in the education provided during pendency. The judge emphasized that the purpose of compensatory education is not to punish the district.

The court’s decision helps fill out the development of the law regarding compensatory education, joining decisions such as Doe v. East Lyme Board of Education, 790 F.3d 440 (2d Cir. 2015) and  Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005), both of which were cited in the opinion. Clearly, the nature, intensity, and effectiveness of the pendency services need close attention when relief is sought to make up for a denial of FAPE under an IEP that the district offered but did not implement because of stay-put.

The student was diagnosed with ADHD, a developmental coordination disorder, and a specific learning disability in reading. After the student received neuropsychological evaluations in December 2017 and January 2018, the Lab School enrolled the student for the 2018-19 school year. The public school system offered an IEP in July 2018, which called for the student to receive what the parents believed to be inadequate amounts of specialized instruction, and the parents filed for due process. The hearing officer issued a decision on May 24, 2019, in favor of the parents, finding a failure to offer free, appropriate public education and ordering the system to reimburse the parents for the tuition for the 2018-19 school year.

The system offered a new IEP for 2019-20, which the parents also considered inadequate, and the parents again filed for due process. The parties settled, with the system placing the student at the Lab School and funding the tuition. After that school year the system again proposed an IEP for the 2020-21 school year with which the parents disagreed. That proposal called for placement of the student at a local public school, the Murch School. The parents again filed for due process, contending that:

(1) the May 2019 HOD—the hearing officer decision that ordered DCPS to place H.R. at the Lab School and fund his education there for the 2018-19 school year—created an “agreement” between the parties that the Lab School was H.R.’s stay-put placement pending resolution of the 2020 due process proceedings, and (2) placing H.R. at Murch instead of the Lab School would change H.R.’s educational placement “because, among other things, it [would change H.R.’s] number of specialized instruction hours and [would change H.R.’s] school … from a non-public school to a public school with classes containing upwards of thirty students.”

2022 WL 2110503, at *3 (quoting in part the hearing officer decision).

The hearing officer granted the parents’ motion for stay-put relief on Jan. 11, 2021. The merits of the case continued to pend, and the challenged IEP expired. The public school system offered a new IEP on Apr. 29, 2021. The parents filed a motion for directed verdict as to the 2020 due process request, then a motion to dismiss that hearing request as moot, meanwhile filing a new due process request over the April 29, 2021, IEP. The hearing officer ultimately dismissed the parents’ challenge to the 2020 IEP, ruling not that it was moot but rather that the 2020 IEP met free, appropriate public education standards. The parents promptly appealed the hearing officer decision to district court and requested a preliminary injunction.

In recommending that the injunction be granted, the magistrate judge reasoned that the stay-put injunction is automatic when section 1415(j) applies, and the usual preliminary injunction standards need not be met. The ruling said that the relevant IEP for determining the current placement is that prior to the challenged IEP, and that agreement by the school system to an IEP or placement makes it the current placement. The challenged IEPs of 2020 and 2021 thus did not establish the current educational placement. Since the parties did not focus on any recent uncontested IEP, the magistrate judge looked to the location of the educational services, noting, “Other courts have also recognized that a student’s enrollment at a school like the Lab School can determine the operative ‘current educational placement’ for a DCPS student, prioritizing the “physical school” factor over the student’s IEP.” Id. at *6 (collecting authorities). The magistrate judge further stated that the 2019 settlement related to the 2019-20 school year also placed the student at the Lab School.

The decision reasoned further that the proposal to withdraw funding for the Lab School and enroll the student at the public school with special education services was a fundamental change of the student’s educational placement, pointing out that cases have determined that a change in location can constitute a fundamental change in education placement if the change substantially alters a student’s educational program. “The principal difference between placement at Murch and the Lab School is that at Murch H.R. would be educated in a general education setting at a public school instead of in the exclusively special education environment at the Lab School, which is private. Hearing Officer Lazan observed that the Lab School is ‘a stand-alone special education school where the Student does not associate with typically developing students and does not attend classes in the general education environment. . . . ’ Murch, by contrast, is ‘a DCPS elementary school that provides education services to both general education and special education students.’” Id. at *7 (quoting hearing officer decision, then declaration in record). Moving the student to Murch would leave the student with only 15 hours per week in a special education setting.

The magistrate judge noted that the hearing officer’s ruling on the merits that the 2020 IEP was appropriate was not germane. Approval of the school’s proposal did not imply that it worked no fundamental change. As the magistrate judge stated, “The Court will examine the adequacy of the April 2020 IEP when it rules on the merits of the Parents’ appeal; the IDEA requires that the status quo be preserved in the interim.” Id. at *8. Ultimately, the defendant did not object to the recommendation, and the district judge adopted it.

The decision thus gives guidance about what the current education placement should be deemed to be and what a change in that placement constitutes, all in the context of the recurrent situation of a public school system wishing to move a student from a specialized private setting to a public school with special education instruction.

The parents gave notice to the public school system on June 17, 2021, that they would enroll the student at Cooke unless they were offered an appropriate placement.  The parents filed a due process hearing request on July 1. In an October 7, 2021, decision on the parents’ request for “pendency protection” (i.e., stay-put), the hearing officer found that the school system had failed to identify a school that could meet the student’s needs as set out in his IEP and that there was no pendency placement available for him given that the student had aged-out of Learning Spring. The parents filed the action in court and sought emergency relief, but briefing was delayed at the request of the school system with the consent of the parents.

Interpreting the Second Circuit’s decision in Ventura de Paulino v. Department of Education, 959 F.3d 519, 529 (2d Cir. 2020), the court said that it could not order funding for the new school under the pendency placement provision, 20 U.S.C. § 1415(j). It said that a unilaterally chosen private placement could not constitute the student’s current educational placement even if it was substantially similar to the agreed-upon placement at Learning Spring that was no longer available. It said that the parents’ remedy was to pursue a claim for reimbursement of tuition at the new private school, though the parents had claimed they were of low income and could not afford to pay the tuition.

The court also rejected emergency relief under 14 U.S.C. § 1415(i)(2)(C)(iii), which permits any relief the court determines is appropriate to enforce the provisions of the IDEA. The court said that the primary consideration was irreparable harm, and that the student was currently attending the Cooke school under the temporary waiver of fees that the private school agreed to provide. The school, said the court, had said it would give 30 days notice before terminating the student. The court further said that the agreement of the parents to the delays in proceedings requested by the school system evidenced a lack of imminent harm. The court also questioned likelihood of success on the merits, specifically whether it had jurisdiction, because the administrative process had not been exhausted.

The decision is of greatest significance in its extension of Ventura de Paulino’s reasoning from the situation that occurred there – parental dissatisfaction with a previously agreed-upon placement that remained available to the student to the situation where the previously agreed-upon placement no longer existed. Whether other courts will make this leap remains to be seen, but impartial hearing officers may wish to be alert for future developments. The additional holdings in the case, particularly those about irreparable injury and exhaustion, will have less significance for IHO decision making. Parent attorneys who are aware of the case may be understandably reluctant to agree to even routine requests for delays by respondents if there is a potential need for emergency relief at some point in the case. The L.B. court did not discuss the extensive caselaw regarding excusing of exhaustion in IDEA cases, from Honig v. Doe, 484 U.S. 305 (1988), to cases such as Stropkay v. Garden City Union Free School District, 593 F. App’x 37 (2d Cir. 2014) (applying futility exception when school system failed to implement IEP), and Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990), which excused exhaustion when the school system failed to identify an appropriate private school for a student. Nevertheless, litigants may wish to take note of the L.B. court’s approach to the issue.