Ashland School District v. Parents of Student E.H.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASHLAND SCHOOL DISTRICT,  No. 08-35926
Plaintiff-Appellee,
v.  D.C. No.
1:07-cv-03019-CL
PARENTS OF STUDENT E.H.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted
October 8, 2009—Portland, Oregon
Filed December 7, 2009
Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Ronald M. Whyte,* District Judge.
Opinion by Judge O’Scannlain
*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
15919
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15923
COUNSEL
Mary E. Broadhurst, of Eugene, Oregon, argued the cause for
the defendant-appellant and filed the briefs.
Andrea L. Hungerford, of the Hungerford Law Firm, LLP,
Oregon City, Oregon, argued the cause for the plaintiff-
appellee and filed the brief. Nancy J. Hungerford, of the
Hungerford Law Firm, LLP, Oregon City, Oregon, was on the
brief.
15924 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
OPINION
O’SCANNLAIN, Circuit Judge:
In this action under the Individuals with Disabilities Educa-
tion Act, we must decide the extent to which a district court
must defer to a state hearing officer’s decision to order a
school district to reimburse a student’s parents for the cost of
a private education.
I
A
E.H.,1 a student in the Ashland School District (“ASD”),
first began suffering from emotional problems in 1998, while
in the third grade. At the same time, E.H. began exhibiting
difficulty with peer integration, was teased by other children,
and developed migraine headaches. By 2000, E.H.’s fifth-
grade year, the migraines became so severe that E.H.’s par-
ents (“Parents”) hospitalized their child. E.H.’s treating physi-
cian determined that the child was suffering from anxiety and
depression, and that the migraines had a medical origin but
were triggered by psychological factors.
At this time, ASD identified E.H. as eligible for special
education services and developed an individualized education
program (“IEP”), as required by the Individuals with Disabili-
ties Education Act (“IDEA”). 20 U.S.C. § 1414(d). After
ASD implemented this IEP, E.H. repeated the fifth grade,
with improved results.
Throughout sixth grade and the first two trimesters of sev-
enth grade, E.H. maintained strong academic performance,
and even participated in a program at Southern Oregon Uni-
1
As this case was filed under seal, we have disguised the student’s name
and omitted references to gender to retain anonymity.
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15925
versity for talented and gifted children. During the latter part
of seventh grade, however, E.H. became depressed, began to
talk about suicide, and suffered from frequent migraines that
ultimately required hospitalization in the spring of 2003.
During eighth grade—the 2003 to 2004 school year—E.H.
attended one class a day at Ashland Middle School, and spent
the remainder of the school day at Willow Wind, an ASD-
operated alternative education program. In September of that
school year, ASD provided Parents with a twenty-three-page
pamphlet that outlined their rights and responsibilities under
the IDEA. Among other things, this pamphlet notified them
that a court or hearing officer might refuse to reimburse them
for private school costs if they failed to notify ASD of their
objections to the IEP prior to private school enrollment. In
late April 2004, near the end of E.H.’s eighth grade year,
ASD held an IEP team meeting to consider strategies to
smooth the transition to high school the following school
year. Over the summer, E.H. was hospitalized on two occa-
sions for suicide attempts. By this time, E.H.’s treating physi-
cians and therapists were recommending residential treatment,
rather than ordinary public school, to address E.H’s persistent
emotional and medical problems.
In September 2004, shortly after E.H.’s second discharge
from the hospital, ASD reconvened its team to draft a new
IEP. Parents indicated their desire to enroll E.H. in Willow
Wind, as they had done the previous school year, but the pro-
gram declined because it was unable to monitor the child
closely enough to prevent another suicide attempt. Thus,
ASD’s personnel wrote a modified IEP for the next school
year, to which Parents did not object. Although Parents
enrolled E.H. full time at Ashland High School in the fall of
2004, they indicated to ASD that they were actively searching
for a residential facility in which to place their child.
By late November 2004, E.H.’s emotional problems resur-
faced. Parents and ASD agreed that homebound instruction
15926 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
was appropriate, and ASD provided a tutor. ASD did not draft
a new IEP because it believed that the home placement was
only temporary pending the child’s transfer to a private resi-
dential facility. In December 2004, E.H. was once again hos-
pitalized for suicidal tendencies and threatening to injure
family members. E.H. briefly returned to Ashland High
School for a total of twelve days between December 14, 2004,
and January 24, 2005. On January 24, Parents transferred E.H.
from Ashland High School to Youth Care, a private out-of-
state residential treatment program. Prior to this transfer, Par-
ents never indicated any dissatisfaction with the education
ASD provided the child, and ASD never volunteered that,
under some circumstances, it was obligated to pay for residen-
tial educational facilities.
Youth Care operates several private residential educational
facilities that provide both medical and educational support to
enrolled students. E.H. initially attended its principal residen-
tial treatment program, located near Salt Lake City, Utah.
Youth Care’s treatment plan listed E.H.’s significant mental
health challenges as chronic depression, repeated suicide
attempts, and a homicidal fixation on E.H.’s father and sister.
Youth Care provided psychological care, intensive counsel-
ing, and educational support sessions. In July 2005, Parents
and Youth Care agreed to transfer E.H. to Youth Care’s Pine
Ridge facility, which offered less intensive psychological
treatment.
On September 8, 2005—after E.H. had been enrolled in
Youth Care for approximately seven months—Parents mailed
ASD a formal letter indicating that they were unhappy with
the educational services it had provided and requesting reim-
bursement for the cost of the residential placement. After
receiving this letter, ASD convened a meeting to draft a new
proposed IEP. Parents rejected that IEP in late January 2006,
and requested a due process hearing before a state hearing
officer to determine whether ASD had provided E.H. with a
free appropriate public education (“FAPE”) and whether they
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15927
were entitled to reimbursement for the costs of residential
treatment.
B
The hearing officer concluded that the IEPs ASD offered in
September 2004 and December 2005 did not provide E.H.
with a FAPE, as required by the IDEA.2 See 20 U.S.C.
§ 1400(d). The hearing officer further concluded that Youth
Care did provide a FAPE and was therefore an appropriate
placement. The hearing officer found that Parents had
removed E.H. from Ashland High School without notifying
ASD of their concerns with the education it was providing.
Under Oregon Administrative Rule 581-015-0156(4) (2004)3
—which required Parents to notify ASD of their concerns
either at an IEP meeting or ten days prior to withdrawing E.H.
—this failure permitted the hearing officer to deny or to
reduce the amount of reimbursement.
For the period prior to September 18—ten days after Par-
ents gave ASD notice of their objections to the IEP—the hear-
ing officer ordered ASD to reimburse Parents for half of the
cost of this residential program. He based this decision on
three factors.
First, although Parents did not satisfy the notice require-
ment until September 8, 2005, ASD was aware they were
exploring a possible residential placement by January 2004 at
the very latest. In the hearing officer’s opinion, this should
2
The hearing officer also concluded that the home tutoring ASD pro-
vided E.H. in November and December of 2004 did not properly imple-
ment the September 2004 IEP.
3
Since the parties appeared before the hearing officer, this section has
been renumbered as Oregon Administrative Rule 581-015-2515. No mate-
rial changes were made to the rule. Additionally, this rule tracks the lan-
guage of 20 U.S.C. § 1412(a)(10)(C)(iii), which grants federal district
courts the same discretion to reduce or deny an award of reimbursement
if parents fail to provide a school district with pre-withdrawal notice.
15928 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
have warned ASD that E.H. might need a residential place-
ment, which should have prompted it to consider the possibil-
ity of such placement when drafting the IEPs. ASD felt that
Parents were considering a residential placement because of
E.H.’s medical, rather than educational, needs, and therefore
it would not be obligated to pay for any residential treatment.
The hearing officer determined that because E.H.’s educa-
tional and medical problems were intertwined, ASD was obli-
gated to pay for residential treatment, and therefore
discounted this explanation.
Second, the hearing officer determined that Parents’ failure
to complain about any of the IEPs cut in ASD’s favor. The
hearing officer felt that the impact of this failure was tem-
pered, however, by ASD’s failure to provide an appropriate
IEP.
Third, the hearing officer felt that ASD’s failure to notify
Parents of its possible obligation to pay for residential care
also weighed in favor of granting reimbursement. ASD was
aware that Parents were considering a residential program
long before Parents placed E.H. in such a program, but did not
inform them of its potential responsibility to pay for that
placement. ASD had, on earlier occasions, provided Parents
with pamphlets describing their rights and obligations under
the IDEA, but there was no evidence that Parents received a
copy of this notice after September 2003. Thus, the hearing
officer felt that Parents’ failure to provide notice of their
objections to the IEP was understandable, and concluded that
the lack of notice did not heavily favor ASD.
The hearing officer also granted Parents full reimbursement
for all residential care expenses for the period after September
18, 2005. Although Parents did not satisfy the notice require-
ment, he concluded that the foregoing considerations com-
pelled requiring ASD to reimburse Parents. Moreover,
because ASD had the statutorily required ten days notice with
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15929
respect to this time period, the hearing officer determined that
it was proper to award Parents full reimbursement.
ASD appealed the hearing officer’s decision to the U.S.
District Court for the District of Oregon under 20 U.S.C.
§ 1415(i)(2).
C
The district court reversed the hearing officer’s award of
reimbursement.4 Conducting an independent review of the
record, the district court determined that Parents are not enti-
tled to reimbursement for the expenses associated with the
residential placement either before or after they provided
ASD with notice.
The district court’s determination rested on several factors,
such as the high cost of residential facilities; Parents’ clear
failure to adhere to the statutorily required notice requirement;
the medical, rather than educational, nature of E.H.’s place-
ment; Parents’ failure to give ASD notice that they were
rejecting the IEP; ASD’s cooperation and willingness to
revise E.H.’s IEP whenever Parents wished to change E.H.’s
placement; and Parents’ apparent unwillingness to consider
returning E.H. to an ASD school.
The district court also rejected Parents’ request for “interim
relief”—or reimbursement for E.H.’s residential care during
the allegedly delayed administrative proceedings—concluding
that the hearing officer’s decision was not unreasonably
delayed. Parents timely appealed this decision.
4
The district court did not consider the hearing officer’s finding that
ASD’s September 2004 and December 2005 IEPs did not provide a FAPE
or his finding that Youth Care did. As discussed infra at pages 15931-32,
this omission is not relevant to our ultimate conclusion.
15930 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
II
Parents first contend that the district court applied the
wrong standard of review to the hearing officer’s decision.
A
Parents argue that the district court reviews the hearing
officer’s decision to grant reimbursement for abuse of discre-
tion. This claim relies on a misreading of the relevant statu-
tory language and our precedent.
[1] Under 20 U.S.C. § 1415(i)(2)(C), the district court
reviews the records of the state due process hearing, hears
additional evidence offered by the parties, and then, “basing
its decision on the preponderance of the evidence, . . . grant[s]
such relief as the court determines is appropriate.” Thus, the
statute commands the district court to review the evidence and
come to its own conclusion about what relief is appropriate.
See Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S.
359, 369-70 (1996).
Parents cite our decision in Parents of Student W. v. Puyal-
lup School District, No. 3, 31 F.3d 1489, 1497 (9th Cir.
1994), for the proposition that the district court reviews the
hearing officer’s decision for abuse of discretion. This is a
misreading of Student W. There, we concluded that, because
section 1415(i)(2)(C) grants the district court discretion to
craft appropriate relief, we review its conclusion for abuse of
discretion. Id. We did not discuss the standard of review the
district court applies to hearing officer decisions.
[2] Contrary to Parents’ assertion, a district court reviews
a state hearing officer’s award of reimbursement de novo
under section 1415(i)(2)(C). Seattle Sch. Dist. No. 1 v. B.S.,
82 F.3d 1493, 1499 (9th Cir. 1996). It is true that section
1415(i)(2)(C) “carries with it the implied requirement that due
weight shall be given to these proceedings.” Bd. of Educ. v.
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15931
Rowley, 458 U.S. 175, 206 (1982). In other words, the court
“must give deference to the state hearing officer’s findings,
particularly when . . . they are thorough and careful,” B.S., 82
F.3d at 1499, and avoid “substitut[ing] [its] own notions of
sound educational policy for those of the school authorities
which [it] review[s],” Union Sch. Dist. v. Smith, 15 F.3d
1519, 1524 (9th Cir. 1994) (internal quotation marks omitted).
In the end, however, the court is free to determine indepen-
dently how much weight to give the state hearing officer’s
determinations. See County of San Diego v. Cal. Special
Educ. Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996);
Ash v. Lake Oswego Sch. Dist., No. 7J, 980 F.2d 585, 587-88
(9th Cir. 1992).
B
[3] Parents also argue that the district court’s relatively
brief opinion did not satisfy the standard of review, citing our
decision in Gregory K. v. Longview Sch. Dist., 811 F.2d 1307,
1311 (9th Cir.), aff’d sub. nom. Sch. Comm. v. Dept. of Educ.,
471 U.S. 359 (1985). In Gregory K., we held that a court
“must consider the [hearing officer’s] findings carefully and
endeavor to respond to the hearing officer’s resolution of each
material issue.” Id. The deference required by Gregory K. is
nowhere near as great as Parents imply; after responding to
the hearing officer’s conclusions, “the court is free to accept
or reject the findings in part or in whole.” Id. Although we
would have preferred that the district court’s opinion were
more detailed, it adequately responded to the hearing officer’s
conclusions before reaching a contrary result.
[4] It is true that the district court did not address the hear-
ing officer’s conclusion that the September 2004 IEP failed to
provide E.H. with a FAPE, or his holding that Youth Care did
provide E.H. with a FAPE. That failure does not mean, how-
ever, that the district court did not properly consider the hear-
ing officer’s conclusions. Although the hearing officer
dedicated a majority of his opinion to evaluating the IEPs, the
15932 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
district court, indeed, did not address the hearing officer’s
findings that E.H.’s September 2004 and December 2005
IEPs failed to provide E.H. with a FAPE. ASD did not appeal
the hearing officer’s determination that the September 2004
IEP was not adequate, and the district court therefore did not
address it. With respect to the December 2005 IEP, the district
court did not directly determine if it was proper; rather, it
found that Parents’ actions showed they were unlikely to
place E.H. back in an ASD school even if the IEP was ade-
quate. Thus, in the district court’s opinion, Parents partici-
pated in the December 2005 IEP process not to help ASD
prepare to provide their child with a FAPE, but merely as a
prelude to seeking reimbursement. Thus, we are satisfied that
the district court adequately responded to the hearing officer’s
conclusions, even if it did not do so directly.
Furthermore, the district court provided a clear rationale for
its determination. For example, while the hearing officer con-
cluded that residential placement was appropriate because he
believed that E.H.’s medical and educational difficulties were
intertwined, the district court instead concluded that Parents’
decision to place E.H. in Youth Care was motivated primarily
by their worries about E.H.’s medical condition. Similarly,
Parents’ failure to provide proper notice troubled the district
court more than it did the hearing officer, as did their repeated
failure to object to the many IEPs ASD prepared for E.H.
III
Having satisfied ourselves that the district court applied the
proper standard of review to the hearing officer’s conclusions,
we turn to the merits of Parents’ appeal.
A
[5] Parents argue that we must give deference to the hear-
ing officer’s conclusions. We disagree. Like the district court,
we may not “substitute [our] own notions of sound educa-
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15933
tional policy for those of the school authorities which [we]
review.” Smith, 15 F.3d at 1524 (internal quotation marks
omitted). At the same time, we do not review the hearing offi-
cer’s conclusions for abuse of discretion. Forest Grove Sch.
Dist. v. T.A., 523 F.3d 1078, 1084-85 (9th Cir. 2008), aff’d,
129 S. Ct. 2484 (2009). Instead, we focus our review on the
district court’s decision.
[6] When a district court hears an appeal from a state hear-
ing officer, it exercises broad discretion to craft relief under
20 U.S.C. § 1415(i)(2)(C). See Sch. Comm. of Burlington, 471
U.S. at 369-70. In a case such as this one, where Parents seek
reimbursement for private school expenses, they “are entitled
to reimbursement only if a federal court concludes both that
the public placement violated IDEA and that the private
school placement was proper under the Act.” Florence
County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7,
15 (1994). “And even then courts retain discretion to reduce
the amount of a reimbursement award if the equities so
warrant—for instance, if the parents failed to give the school
district adequate notice of their intent to enroll the child in
private school.” Forest Grove Sch. Dist. v. T.A., 129 S. Ct.
2484, 2496 (2009); see also 20 U.S.C. § 1412(a)(10)(C)(ii).
Thus, because the district court had equitable discretion to
craft appropriate relief in this case, we review its decision to
deny reimbursement for abuse of that discretion. T.A., 523
F.3d at 1084-85.
B
Parents contend that the district court’s conclusion that they
are not entitled to reimbursement was predicated on several
errors. We consider each of these claims in turn.
1
[7] Parents first claim that the district court improperly con-
sidered the high cost of residential treatment when it denied
15934 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
their request for reimbursement. Although they are correct
that the IDEA sometimes requires a school district to pay for
a child’s private education, we do not agree with their conten-
tion that the cost of E.H.’s residential treatment should neces-
sarily be irrelevant to the district court’s decision to grant or
withhold reimbursement.
[8] When a student requires a residential placement, the
IDEA requires a district to pay for reasonable, non-medical
expenses associated with that placement. See 34 C.F.R.
§ 300.104; cf. Carter, 510 U.S. at 15-16. In denying Parents’
request for reimbursement, the district court noted that much
of the cost of residential care is directed to medical expenses.
The district court concluded that much of E.H.’s medical care
was unrelated to educational needs. Given that much of E.H.’s
time in Youth Care was dedicated to psychological care, not
education, we do not believe the district court abused its dis-
cretion by considering the cost of residential treatment.
2
Parents next argue that the district court improperly consid-
ered their failure to give ASD notice of their objections to
E.H.’s IEP as a factor favoring denial of reimbursement. We
disagree.
[9] Section 1412(a)(10)(C)(iii) grants the district court dis-
cretion to “reduce[ ] or den[y]” reimbursement if parents fail
to notify a school district of their objections to their child’s
IEP prior to withdrawing the child from public school. This
is fully consistent with the discretion conferred by section
1415(i)(2)(C). Thus, the statute expressly permitted the dis-
trict court to deny relief solely because of Parents’ failure to
give ASD notice of their objections to the IEP. Moreover, we
have previously held that failure to give notice is a relevant
consideration when determining whether to deny reimburse-
ment. T.A., 523 F.3d at 1088-89.
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15935
[10] Parents argue that because ASD was aware that they
were considering a residential treatment by, at the very latest,
late January 2004, it cannot claim that it was harmed by their
failure to give notice as required by section
1412(a)(10)(C)(iii). It is true that ASD was aware of the pos-
sibility that Parents might withdraw their child from public
school in favor of a private residential facility. The district
court, however, chose to give Parents’ failure to provide
notice greater weight than ASD’s awareness that Parents
might prefer a residential placement. We cannot conclude that
this was an abuse of discretion.
3
[11] Parents also claim that the district court failed properly
to consider ASD’s role in causing their deficient notice by
failing to provide them with additional notice of its potential
obligation to pay for residential treatment. Although Parents
acknowledge that they received a twenty-three-page pamphlet
explaining their rights and obligations under the IDEA—
including their obligation to give ASD notice before unilater-
ally transferring E.H. to a residential educational setting—
Parents claim that ASD should have reminded them of this
obligation once it knew they were considering a residential
placement. We disagree.
[12] The IDEA requires ASD to notify Parents of their
rights and obligations under the IDEA. See 20 U.S.C.
§ 1415(d) (setting out the notice requirement); id.§ 1412(a)(10)(C)(iv)(I)(bb) (requiring the notice to explain
that parents’ failure to provide notice may preclude reim-
bursement). Parents do not argue that the pamphlet failed to
provide them with adequate notice. ASD complied with the
requirements of the IDEA. We—like the district court—may
require no more.
4
[13] Finally, Parents challenge the district court’s conclu-
sion that E.H.’s residential placement was necessitated by
15936 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
medical, rather than educational, concerns. The IDEA
requires ASD to provide an education that meets E.H.’s “aca-
demic, social, health, emotional, communicative, physical and
vocational needs.” B.S., 82 F.3d at 1500 (internal quotation
marks omitted). Additionally, any IEP ASD prepares must
include a statement of educational and related services that
the district will provide to the child. 20 U.S.C.
§ 1414(d)(1)(A)(i)(IV). “Related services” include “develop-
mental, corrective, and other supportive services,” such as
“psychological services, physical and occupational therapy,
recreation . . . [and] social work services.” Id. § 1401(26). The
IDEA does not, however, require ASD to address all of E.H.’s
medical concerns. See 34 C.F.R. § 300.104 (requiring a
school district to pay non-medical costs associated with resi-
dential treatment). Accordingly, “our analysis must focus on
whether [the residential] placement may be considered neces-
sary for educational purposes, or whether the placement is a
response to medical, social, or emotional problems that is nec-
essary quite apart from the learning process.” Clovis Unified
Sch. Dist. v. Cal. Office of Admin. Hearings, 903 F.2d 635,
643 (9th Cir. 1990).
Here, the district court concluded that “E.H. was not trans-
ferred to a residential facility because of educational deficien-
cies but for medical reasons. During at least the first six
months [at Youth Care], E.H. was in no condition to devote
much time or effort to schoolwork.” Ultimately, the purposes
underlying E.H.’s placement is a question of fact, and we
review the district court’s finding only for clear error. T.A.,
523 F.3d at 1083.
[14] The record contains ample evidence supporting the
district court’s conclusion that Parents placed E.H. in residen-
tial care to treat medical, not educational, problems. For
example, E.H.’s case manager testified that Parents told him
they were searching for a residential placement because of
problems at home, not at school. Likewise, E.H. was hospital-
ized in early December 2004, for threatening to harm relatives
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15937
and classmates. E.H.’s treating physician recommended a res-
idential placement only a few weeks before Parents enrolled
their child in Youth Care. Given this evidence, we cannot
conclude that the district court committed clear error in find-
ing that the residential placement was necessitated by medi-
cal, rather than educational, needs. Therefore, it was not an
abuse of discretion for the district court to conclude that the
medical nature of the placement weighed against granting
Parents’ request for reimbursement.
5
In addition to the above, the district court discussed several
other factors supporting its decision. These further convince
us that, despite the relative brevity of the district court’s opin-
ion, it did not abuse its discretion by reversing the hearing
officer’s decision.
The district court concluded that Parents’ late notice to
ASD did not cure the earlier lack of notice. The district court
noted that the purpose of the notice requirement is to give a
school district one final opportunity to modify the student’s
IEP and craft an education plan that parents find acceptable.
Given that E.H. has now been in a residential facility for a
year, the district court concluded that Parents are unlikely to
accept an IEP that calls for instruction at an ASD facility.
This conclusion also undermined Parents’ claim that they
were entitled to reimbursement because the September 2005
IEP was inadequate. ASD completed this IEP after receiving
notice of Parents’ intention to seek reimbursement for resi-
dential treatment. The district court found that Parents’ partic-
ipation in this process was not genuine, but rather was done
solely as a prerequisite to seeking reimbursement.
The district court also noted ASD’s continued cooperation
with Parents’ demands—specifically, its willingness to pro-
vide E.H. with home tutoring when migraines prevented
15938 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
school attendance. Although the hearing officer found that
homebound instruction was not a proper implementation of
the September 2004 IEP, he also noted that ASD did not
update the IEP or attempt to implement the existing one more
fully because Parents had already indicated they would be
moving E.H. to a residential program. Based on this informa-
tion, the district court reasonably concluded that ASD acted
properly.
Finally, the district court observed that prior to seeking
reimbursement, Parents had never complained about any of
the IEPs. The fact that Parents raised no objection to E.H.’s
IEP until they realized that doing so was a prerequisite to
reimbursement belies their claim that their complaint with the
IEP is genuine.5 Therefore, the district court did not abuse its
discretion by considering this factor and rejecting Parents’
claim for reimbursement.
Given the evidence before the district court, its consider-
ation of each of these factors was proper.
C
Because each of the district court’s conclusions was amply
supported by the record, we cannot say that the district court
abused its discretion by denying Parents’ claim for reimburse-
ment.
IV
[15] Because we conclude that the district court did not
abuse its discretion by denying Parents’ request for reim-
bursement under 20 U.S.C. § 1415(i)(2)(C), we must reach
their alternative claim for reimbursement under the IDEA’s
“stay-put” provision. Once a state hearing officer concludes
5
Additionally, such a complaint would have satisfied the notice require-
ment. See 20 U.S.C. § 1412(10)(C)(iii)(I)(aa).
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15939
that a residential placement is necessary to provide a child
with a FAPE, the child’s school district must pay for the cost
of that placement for the pendency of any subsequent appeal.
See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a), (d). Parents
contend that because the hearing officer’s decision was unrea-
sonably delayed, their entitlement to relief under the stay put
provision was improperly reduced. Thus, they claim that the
district court abused its discretion denying their request for
“interim” relief—reimbursement for E.H.’s residential treat-
ment for the time period after the hearing officer should have
issued his opinion but before he actually did. We disagree.
Parents argue that the hearing officer should have issued
his order by June 12, 2006, and therefore ASD should reim-
burse them for E.H.’s residential care expenses from that date
until the end of this litigation. They originally requested a due
process hearing on January 26, 2006. Ordinarily, an Oregon
hearing officer must issue his order within forty five days of
a request for a due process hearing. Or. Admin. R. 581-015-
2375(2).6 In this case, the parties waived such time limit. On
March 8, 2006, ASD moved to have Parents’ suit dismissed,
arguing that reimbursement was unavailable as a matter of
law because they had failed to give the district notice of their
intent to place E.H. in a residential facility. On March 31,
2006, the hearing officer partially granted ASD’s motion, and
denied all reimbursement for expenses prior to the period
beginning ten days after Parents gave ASD proper notice. The
hearing for this case took place between April 10 and 12, and
the record closed on May 12. On May 31, the hearing officer
granted Parents’ request that he reconsider his March 31 deci-
sion to dismiss their claims for pre-notice relief and reopened
the record. The additional hearing did not occur until Novem-
ber 2, and the hearing officer issued his new decision—this
time in favor of Parents—on January 2, 2007.
6
At the time of the parties’ appearance before the hearing officer, the
relevant regulation was numbered Or. Admin. R. 581-015-0088(2) (2003).
Subsequent to the hearing officer’s decision, this provision was renum-
bered; the text of the regulation has not changed in a material way.
15940 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
Parents’ contention that the hearing officer should have
issued his decision on June 12, 2006 is based on the written
agreement between the Oregon Department of Education and
the Oregon Office of Administrative Hearings that was in
force at the time of the parties’ due process hearing.7 Under
that agreement, the hearing officer’s decision should have
been issued within thirty days of the close of evidence. Given
that evidence in this case closed on May 12, 2006, the hearing
officer’s decision would ordinarily have been due on June 12,
2006.8
Parents point to several out-of-circuit cases to support their
claim for “interim” relief. Although the stay-put provision
does not directly authorize reimbursement for pre-decision
expenses, courts may rely on the broad discretion contained
in 20 U.S.C. § 1415(i)(2)(C) to require reimbursement if a
hearing officer’s decision is inappropriately delayed. Cf. Sch.
Comm. of Burlington, 471 U.S. at 369 (holding that the IDEA
grants district courts “broad discretion” to craft appropriate
relief). For example, in Mackey ex rel. Thomas M. v. Board
of Education for Arlington Central School District, 386 F.3d
158 (2d Cir. 2004), the Second Circuit awarded interim relief
to a parent because the state’s administrative decision was
delayed for nearly a year. When the hearing officer finally
issued his order determining the student’s appropriate place-
ment, the school year for which the parents should have been
entitled to relief under the stay put provision had already
ended. Id. at 164. The Second Circuit refused to allow the
school district “to escape the financial consequences of pen-
dency placement for which the District otherwise would have
been responsible” because of a delay caused entirely by the
state’s hearing officer. Id.7
That agreement expired on June 30, 2007, and has been replaced with
a new agreement which does not include the thirty day time limit to issue
opinions.
8
Technically, the thirty-day period ended on June 11. Because June 11
was a Sunday, however, the decision would not have been due until June
12.
ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15941
[16] We need not reach the merits of the Second Circuit’s
approach, however, because Parents would not be entitled to
relief under its reasoning. In Mackey, the administrative pro-
ceedings were unreasonably and unjustifiably delayed. Here,
the district court found that the hearing officer’s delay was not
unreasonable. This determination is based on the numerous
motions and briefs the parties filed, as well as the voluminous
record. There were many motions before the hearing officer,
and the district court reasonably concluded that he decided
each motion in a timely fashion. Thus, the district court did
not abuse its discretion by denying Parents’ motion for
interim relief.
V
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.