The First Circuit Court of Appeals has issued a ruling in favor of Portland Public Schools addressing the breadth of the “stay put” provision under state and federal special education laws. In reaching this ruling, Mr. and Mrs. Doe v. Portland Public Schools,1 the Court of Appeals reversed a decision by the Federal District Court of Maine, which had ordered Portland to keep paying for an expensive private school placement despite the fact that the original hearing officer in the case had upheld Portland’s proposed IEP. This is an important ruling in both Maine and New Hampshire for those involved in special education litigation, although it does involve an esoteric area of special education law. We address this below.
Background
Most readers know that state and federal special education laws include a provision governing what the child’s placement should be during the pendency of a special education due process hearing and any appeal from that hearing. In a nutshell, the law requires that the child should remain in his or her “then current educational placement” during the pendency of the litigation.2 This language has been interpreted to mean that the child shall remain in the last educational placement agreed upon between the parent and the school.3 But there is an additional gloss on this requirement addressing what “stay put” should be if a hearing officer rules in part or in whole in favor of the parent, and the case then moves on into court. Does the “stay put” placement then change?
The federal IDEA rules address this question as follows:
- “If the hearing officer in a due process hearing … agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents for purposes of [stay put].”4
Clearly, then, if the parent and school are in a dispute about what the child’s current placement should be, and the hearing officer rules for the parent and the school appeals, the child’s “stay put” placement for the life of the appeal will become the placement sought by the parent and agreed upon by the hearing officer, regardless of what the stay put placement had been before the hearing officer entered a ruling.
The Earlier Portland Rulings
The Portland case presented a more nuanced stay put question than the simple example just noted above. In this case, Portland had initially found a student ineligible for special education, and then two years later found the student eligible and offered the child an IEP and placement in any of Portland’s elementary schools that the family might choose. The family privately placed the child in a special purpose private school, the Aucocisco School. They asked the hearing officer to rule that Portland had denied the student a FAPE by finding him initially ineligible and they sought reimbursement of tuition costs at the private school as a type of compensatory education. They also sought a ruling that Portland’s proposed IEP and placement were inappropriate and an order that the Aucocisco placement was appropriate for the child going forward.
The hearing officer ruled that Portland had erred when it decided that the child was not eligible for special education. But she also ruled that Portland’s IEP and proposed placement were appropriate, and denied an order for the Aucocisco placement going forward. She ordered reimbursement of past costs to address approximately 20 months of a FAPE denial for ineligibility, but denied the request for a placement and tuition order going forward.5
The District Court agreed with the Parents that, essentially, any order for reimbursement of private tuition costs at any point in the past would be sufficient for the child’s stay put placement to change, and become whatever placement the reimbursement order had upheld. Although not at issue in this case, the logic of the Parents’ position would be that even if a hearing officer upheld three years’ of public school IEPs and placements, but had found a FAPE denial four years earlier and ordered private tuition reimbursement to address that finding, this order would require the local school to continue that private placement during any further appeal, even though the hearing officer had upheld all of the public school’s IEPs during the most recent three years.
The First Circuit Ruling
Portland challenged this ruling at the First Circuit Court of Appeals, and the First Circuit agreed with Portland. The First Circuit focused on the language of the rule quoted above, which speaks in the present tense about a hearing officer ruling agreeing with a parent that a change in the child’s placement “is appropriate.”6 The Court also ruled that a hearing officer order for reimbursement of the cost of a private placement is different in kind than a hearing officer order that a placement is “appropriate.”7 In the former situation, a hearing officer can order reimbursement even if the private school does not meet all of the requirements that would otherwise have to be met for an IEP and placement to be appropriate. As the Court noted, “the question of whether a unilateral placement is ‘proper’ [for reimbursement purposes] is ‘viewed more favorably to the parent’ than the question of whether ‘the placement was required in order to provide a free appropriate public education.”8 Thus, just because a hearing officer orders reimbursement for a private placement does not mean that the hearing officer has concluded that a change of placement for the child is appropriate.
In this case, the facts strongly supported Portland on these points. First, the hearing officer in ordering reimbursement had specifically stated that the reimbursement standard is less demanding than the broader standard for determining an appropriate IEP and placement. Further, when she ruled that Portland’s current IEP and placement were in fact appropriate, she specifically ruled that she was not ordering an ongoing placement at Aucocisco.
Although most Maine and New Hampshire schools are not involved in ongoing special education litigation, this ruling is an important outcome for those who are. A different outcome undoubtedly would have encouraged further litigation and appeals by parents against schools, hoping that they can turn a small, partial victory on only a piece of their case into a longstanding stay put order to continue paying the costs of expensive private placements.
