Bd. of Educ. of the Cnty. of Boone v. K.M., CIVIL ACTION NO. 2:14-cv-10563

THE BOARD OF EDUCATIONOF THE COUNTY OF BOONE,WEST VIRGINIA, Plaintiff, v. K.M., et al., Defendants.

CIVIL ACTION NO. 2:14-cv-10563

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

March 31, 2015

MEMORANDUM OPINION AND ORDER

Pending before the Court are Plaintiff's motion to stay the enforcement of an administrative decision [ECF 6] and Plaintiff's motion to dismiss [ECF 14].

I. BACKGROUND

Defendant K.M. has been identified as a child with disabilities. He attends public school in Boone County, West Virginia. This case concerns whether his school has provided him with a free and appropriate public education, as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400 et seq.

On May 14, 2013, K.M.'s parents, Defendants Kevin M. and Angelique M. filed a due process complaint against Plaintiff, the Board of Education of the County of Boone, West Virginia ("the Board of Education"), pursuant to the IDEA, 20 U.S.C. § 1415(b)(6), claiming that the Board of Education failed to offer K.M. a free and appropriate public education. An impartial due process hearing was held over October 7 to 9, 2013, pursuant to 20 U.S.C. §1415(f). The hearing officer's decision was issued on December 6, 2013. Defendants prevailed. The Board of Education was ordered to contract with private educational service provider Bright Futures Learning Services ( "BFLS") within five days of the date of the decision (1) to provide training for K.M., his parents, and school district personnel in the use of a speech-generating device ("SGD") and (2) to develop and implement an Applied Behavior Analysis ("ABA") educational program for K.M.

On January 21, 2014, Defendants informed the Board of Education that it was in violation of the hearing officer's decision because the Board of Education had not yet contracted with BFLS as ordered by the hearing officer. Defendants further informed the Board of Education that they would transport K.M. to BFLS to begin receiving the services ordered in the due process hearing officer's decision. On February 3, 2014, K.M. began receiving the ordered ABA services from BFLS, even though the Board of Education had not contracted with BFLS as ordered.

On February 10, 2014, the Board of Education filed this action in the Circuit Court of Boone County appealing the decision of the hearing officer, pursuant to 20 U.S.C. § 1415(i)(2). On February 18, 2014, Defendants removed the action to this Court based on federal question jurisdiction. On March 3, 2014, Defendants filed their Answer to the Complaint, along with Counterclaims asserting actions for the award of damages under Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Defendants also asserted a claim under the IDEA, 20 U.S.C. § 1400 et seq., for an injunction ordering the Board of Education to comply with the decision of the hearing officer.

On March 6, 2014, the Board of Education filed the present motion to stay the enforcement of the administrative decision. (ECF 6.) On April 7, 2014, the Board of Education filed the present motion to dismiss Defendants' counterclaims. (ECF 14.) These motions have been fully briefed and are now ripe for the Court's consideration.

II. MOTION FOR STAY

The Board of Education requests a stay of the enforcement of the hearing officer's decision during the pendency of the appeal of that decision before this Court, pursuant to Rule 62(c) of the Federal Rules of Civil Procedure.

Defendants argue that the stay request is an attempted "end run" around what is commonly referred to as the IDEA's "stay put" provision. That provision provides that the child "shall remain" in his or her "then-current educational placement" during the pendency of any proceedings conducted pursuant to the IDEA, unless the State or local educational agency and the parents otherwise agree. 20 U.S.C. § 1415(j). The "stay put" provision functions as an automatic injunction; the usual requirements for obtaining preliminary injunctive relief do not apply. Wagner v. Bd. of Educ. of Montgomery Cnty, 335 F.3d 297, 301 (4th Cir. 2003). If a party seeks relief under § 1415(j), "a district court should simply determine the child's then-current educational placement and enter an order maintaining the child in that placement." Id.

The IDEA's "stay put" provision is often invoked by a child's parents in order to maintain a placement where the parents disagree with a change proposed by the school district; the provision is used to block school districts from effecting unilateral change in a child'seducational program. Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996).¹ Here, the Board of Education does not seek to remove K.M. from public school or to change K.M.'s educational regimen there. Nor does it seek to prevent K.M. from receiving further educational services from BFLS. Rather, the Board of Education seeks not to be required to pay for those services.

However, the IDEA's "stay put" provision is also invoked by parents who advocate change in situations similar to this one. § 1415(j) does not expressly require school districts to fund private placements when a hearing officer has found in favor of the parents and the matter is under review by a state or federal court. Nevertheless, under what appears to be the widely accepted reading of § 1415(j), "once parents receive a state administrative decision that the offered public placement was inadequate and their unilateral private placement was appropriate, the private placement becomes the 'current educational placement,' and the school system is financially responsible for the cost of that placement during the pendency of the underlying litigation." Bd. of Educ. of Montgomery Cnty. v. Brett Y., 959 F. Supp. 705, 710 (D. Md. 1997). Accord Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 484 (2d Cir. 2002); Susquenita, 96 F.3d at 83; Clovis Unified Sch. Dist. v. Cal. Office of Admin. Hearings, 903 F.2d 635, 641 (9th Cir. 1990); Cnty. Sch. Bd. of Henrico Cnty., Va. v. RT, 433 F. Supp. 2d 692, 713 (E.D. Va. 2006); Bd. of Educ. of Oak Park & River Forest High Sch. Dist. No. 200 v. Ill. State Bd. of Educ., 10 F. Supp. 2d 971, 977 (N.D. Ill. 1998) ("To hold otherwise would mean thatparents who could not afford a private placement would be forced to maintain their child in a public placement that an administrative decision held to be inappropriate.").

The Court agrees with Defendants that the stay which the Board of Education requests here runs afoul of § 1415(j), and the motion will be DENIED.²

III. MOTION TO DISMISS

First, the Board of Education argues that Defendants lack standing to bring the causes of action alleged in the Counterclaim because they have not exhausted their administrative remedies under the IDEA. "Congress created a detailed administrative scheme for aggrieved parents to pursue and exhaust prior to filing a federal claim." Doe v. Alfred, 906 F. Supp. 1092, 1096 (S.D.W. Va. 1995). The IDEA "mandates certain procedural requirements for participating state and local educational agencies"; in particular, it "guarantees to parents the right to participate in the development of an 'individualized education program' (IEP) for their handicapped child, and to challenge the appropriateness of their child's IEP in an administrative hearing with subsequent judicial review." Dellmuth v. Muth, 491 U.S. 223, 225 (1989).Under § 1415(f), when a complaint has been received under subsection § 1415(b)(6), the parents or the local educational agency involved in such complaint shall have an opportunity for an impartial due process hearing. The IDEA's administrative proceeding concludes with the hearing officer's decision. See 20 U.S.C. § 1415(i)(A) (a decision made in a hearing conducted pursuant to 20 U.S.C. § 1415(f) "shall be final"). Thereafter, "[a]ny party aggrieved by the findings and decision made [during the administrative hearing] shall have the right to bring a civil action" in a state or federal court. 20 U.S.C. § 1415(i)(2)(A).³ Here, the parties appear fully to have run the IDEA's administrative gauntlet.

The Board of Education points out that on February 26, 2014, Defendants filed a State complaint with the Office of Special Programs of the West Virginia Department of Education regarding the Board of Education's alleged violations of the hearing officer's final decision. The Board of Education asserts that Defendants' counterclaims are an attempt to "short circuit the administrative process." (ECF 15 at 6.) However, although the Board of Education argues that the State complaint will "provide the Defendants with an additional administrative outlet" (Id. at 10), there is no indication here that Defendants' State complaint was filed pursuant to the IDEA's administrative scheme. Nor have Defendants argued with any clarity why the IDEAwould require Defendants to engage in a second round of administrative proceedings before bringing the counterclaims pending in this Court.

To the extent that the IDEA's exhaustion requirement may apply to Defendants' Section 504 and ADA counterclaims,⁴ Defendants assert (and the Board of Education does not contest) that Defendants specifically raised their Section 504 claims and alleged facts supporting both Section 504 and ADA claims (deliberate indifference) in their IDEA due process complaint, but the due process officer declined to consider Defendants' Section 504 claim. (ECF 17 at 14.) At the due process hearing, the hearing officer stated "I don't really rule on 504 issues." (ECF 17-4 at 8-9.) It does not appear that any further exhaustion of this issue would have been possible under the IDEA's administrative scheme.⁵

Next, the Board of Education argues that Defendants lack standing to bring the counterclaims because they are not an "aggrieved party" within the meaning of § 1415(i)(2...