Change of Educational Program in which it proposed to place Simon in the Coolidge Senior High Learning Disabilities Program.
On August 19, the parents appealed the proposed placement and requested a due process hearing. A hearing was scheduled for September 4, but was continued to October 19 at the request of the plaintiffs in order that the child could be independently evaluated. During the same month, Simon's parents placed him at Forman School, a private boarding special education school in Litchfield, Connecticut. The hearing scheduled for October 19 was continued to November 25 at the request of DCPS, and on November 25 the case was closed when counsel for the parents failed to appear at the due process hearing.
A new hearing was scheduled for January 13, 1982. At that hearing, the parties concluded that the Kingsbury IEP was defective and it was agreed that a new IEP conference would be scheduled in one week and that DCPS would thereafter propose a placement within 20 working days. A new IEP was drafted on January 22 and DCPS advised counsel for the plaintiffs that a placement decision would be rendered on or before February 24. On February 24, 1982 DCPS advised the plaintiffs that it had "made an administrative decision to assume financial responsibility for Simon Jacobsen at the Forman School. Further recommendations will be rendered as deemed appropriate." See Defendants' Motion Exhibit 7.
On July 21, 1982, DCPS informed plaintiffs that Simon had been accepted for evaluation for placement at the Chelsea School in Silver Spring, Maryland. The letter also advised the parents "that our review does not support a need for continued residential placement for Simon, and therefore, we will not assume any further financial responsibility for such placement." See Defendants' Motion Exhibit 8. Just a few days after sending the July 21 letter, DCPS sent the parents a Notice of Proposed Change in Educational Program advising them that DCPS was recommending the Coolidge Senior High Learning Disabilities Program as Simon's placement for the 1982 -- 1983 school year.
On August 1, 1982, plaintiffs' counsel advised DCPS that plaintiffs had appealed the decision to place Simon at Coolidge. Counsel also questioned the referral to Chelsea and the recommendation for Coolidge and noted that the parents' attempts to contact the Chelsea representative had been unsuccessful in that they had been advised that he was on vacation. Plaintiffs' counsel also advised DCPS that plaintiffs would expect funding at Forman pending a final determination on Simon's educational placement.
By letter dated September 1, 1982, plaintiffs were informed that a due process hearing was scheduled for September 10. In another letter dated September 1, DCPS advised plaintiffs that another appointment had been scheduled for Simon at Chelsea School. Plaintiffs responded on September 3 noting their confusion over the DCPS referral to Chelsea in view of its recommendation for Coolidge. They also complained that DCPS was late in responding to their letters.
The due process hearing was continued at plaintiffs' request; they requested the continuance because of the confusion concerning the referral of Simon to Chelsea and the recommendation for placement at Coolidge. Simon was interviewed at Chelsea between September 7 and 10, 1982, and accepted by that school by letter dated September 16. DCPS then sent a Notice of Proposed Change in Educational Program on September 15 recommending Simon's placement at Chelsea. Plaintiffs re-enrolled Simon at Forman on or about September 17.
On October 15, a due process hearing was held to address the appropriateness of the DCPS proposed placements at Coolidge and Chelsea. Plaintiffs appeared and requested a continuance of the hearing so they could file the instant action in order to require DCPS to fund Simon at Forman for the 1982 -- 1983 school year based on their contention that Forman constituted Simon's "current" placement. See 20 U.S.C. § 1415(e)(3). The hearing officer granted a ten day continuance. This action was filed on October 18, but although it is captioned a complaint for declaratory and injunctive relief, a motion for preliminary injunction was not filed. Defendants answered the complaint on November 10 and plaintiffs' motion for summary judgment was filed on December 16, 1982.
DCPS filed a cross motion for summary judgment and the motions were heard on March 22, 1983.
The final due process hearing was held on November 5, 1982. The hearing officer determined that the DCPS IEP dated January 1982 did not "conform to the requirements of the law" and directed DCPS to prepare a new IEP within 20 school days. The hearing officer refrained from deciding the appropriateness of either Coolidge or Chelsea due to a lack of sufficient information. Finally, he determined that DCPS had adopted the Forman School as Simon's placement. He directed DCPS to fund Simon at Forman until "it has placed Simon in an appropriate special education program." The hearing officer based this determination on his finding that Forman was Simon's present educational placement.
The parties agree that the sole issue presented in this case is whether DCPS is financially responsible for Simon's placement at Forman School for the 1982 -- 1983 school year, where it had agreed to fund the placement at that school for the 1981 -- 1982 school year.
When a school system recommends a proposed special education placement and the parents disagree, the parents may request and obtain an impartial due process hearing. 20 U.S.C. § 1415; 34 C.F.R. §§ 300.506 -- 300.510. During the pendency of any administrative appeal, and indeed, any appeal to the courts, "the child shall remain in the then current educational placement of such child." 20 U.S.C. § 1415(e)(3); 34 C.F.R. § 300.513. Of course, the parents are free to place the child in a private special education setting during this period, but when they do so, it is at their own expense and not that of the school system. 34 C.F.R. § 300.403.
Therefore, when a parent is dissatisfied with the school recommended educational placement, the parent may appeal and pending the outcome, the child remains at his present placement, be it public or private, at DCPS expense. While in some cases, DCPS has been held financially responsible for the parents' unilateral placement in a private institution, those cases represent the exception and not the rule, and resulted due to the failure of DCPS to provide the necessary procedural safeguards in processing requests for special education.
Plaintiffs contend that when DCPS agreed to place and fund Simon at Forman School for the 1981 -- 1982 school year, that school became Simon's current and present placement under 20 U.S.C. § 1415(e)(3) and 34 C.F.R. § 300.513, and that Forman remains his present placement during the pendency of any administrative or judicial proceedings until another appropriate placement is finally determined.
On the other hand, DCPS contends that the agreement to place and fund Simon at Forman School was for 1981 -- 1982 only and that Simon's present placement is the public school system.
DCPS cites Zvi v. Ambach, 520 F. Supp. 196 (E.D.N.Y.1981), affirmed, 694 F.2d 904 (2d Cir.1982) in support of its argument. In that case, the parents and the public school system argued whether the school system should place and fund Zvi in a private special educational placement at The Alternative School for the 1978 -- 1979 school year, where his mother had enrolled him during the 1977 -- 1978 school year. A hearing was scheduled, but before the hearing the matter was settled by a letter agreement dated November 27, 1978. 520 F. Supp. at 198. In that letter, the school committee agreed to fund his placement at The Alternative School for 1978 -- 1979 but not for 1977 -- 1978. The agreement also provided:
This funding is being provided with the stipulation that a review of Zvi's classification will be conducted at the end of the current year with a view towards placing him in an appropriate public program in September, 1979.
Id. When the parties could not agree upon a placement for the 1979 -- 1980 school year, the parents initiated administrative proceedings. A hearing officer ordered the committee to fund him in the private school for the 1979 -- 1980 school year because the committee had failed to have a physician present at the classification hearing. Zvi attended the same private school during 1980 -- 1981 despite a contrary recommendation by the committee. His parents again initiated administrative proceedings and argued, pursuant to 20 U.S.C. § 1415(e)(3), that pending a final determination of their appeal, Zvi's placement for 1980 -- 1981 was The Alternative School. 520 F. Supp. at 203.
The trial court ruled that the committee was not financially responsible for Zvi's placement at the private school. The Court reasoned that "since he was not promised and was not receiving public funding when the proceedings [regarding the 1980 -- 1981 school year] were initiated and since he began the new school year in his private program without any new assurances, he is not entitled to public funding during the pendency of the proceedings." Id.
In reaching this decision, the district court concluded that for the purposes of the "status quo" provision found in 20 U.S.C. § 1415(e)(3), the proceedings referred to in that section commenced when the parents presented a complaint to the committee regarding the proposed educational placement. Since Zvi's mother did not file the complaint until sometime after July 17, 1980 at a time when Zvi had not been promised and was not receiving public funding because he was no longer in school, the status quo provision did not apply. Section 1415(e)(3) provides:
During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed.