The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING "STAY PUT" PRELIMINARY INJUNCTION
[Order to Show Cause Issued February 26, 2010]
On February 8, 2008, Plaintiffs, J.H., a minor and his parents, filed suit against the Los Angeles Unified School District (the "District"), seeking an order that would (1) reverse a decision of the California Office of Administrative Hearings ("OAH"), dated November 30, 2009, and (2) award relief under the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (collectively the "IDEA"), 20 U.S.C. §§ 1400 et seq. (Compl. ¶ 1.) Jurisdiction exists pursuant to 20 U.S.C. § 1415(i)(3)(A).
On February 17, 2010, Plaintiffs filed an Ex Parte Application for Temporary Restraining Order to Enforce Stay Put During Pendency of Litigation. The District filed an opposition to the Ex Parte Application on February 19, 2010. On February 26, 2010, the Court issued a Temporary Restraining Order ("TRO") enforcing the Stay Put and an Order to Show Cause ("OSC") why a preliminary injunction should not issue. Prior to the hearing on whether the TRO should be converted into a preliminary injunction, the District filed an opposition brief on March 26, 2010. A hearing was held on March 29, 2010.
After reviewing the papers submitted by the parties and hearing oral argument, the Court hereby issues a preliminary injunction enforcing the "Stay Put" placement described herein
The IDEA seeks "to ensure that all children with disabilities have available to them a free appropriate public education ["FAPE"] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A).
Under Part C of the IDEA, states must provide disabled children under the age of three with an Individualized Family Service Plan ("IFSP") setting forth early intervention services the toddler or infant needs. 20 U.S.C. § 1435(a)(4). Under Part B of the IDEA, states must provide disabled children between the ages of three and twenty-one with special education and related services under an Individualized Education Program ("IEP"). 20 U.S.C. § 1412(a)(1)(A), (a)(4).
An IEP is a written statement that is developed for each disabled child by an IEP team typically consisting of the parents, a special education teacher, a representative of the local education agency, an expert, and, sometimes, the child. 20 U.S.C. § 1414(d); Christopher S. v. Stanislaus County Office of Educ., 384 F.3d 1205, 1208 n.1 (9th Cir. 2004). Parents who are dissatisfied with an IEP may file a complaint triggering a meeting with the IEP team "where the parents of the child discuss their complaint" and the educational agency "is provided the opportunity to resolve the complaint...." 20 U.S.C. § 1415(f)(1)(B)(i)(IV). If the complaint is not resolved "to the satisfaction of the parents within 30 days of the receipt of the complaint," the parents may request a due process hearing. Id. § 1415(f)(1)(B)(ii). Following such a hearing, "[a]ny party aggrieved by the findings and decision... shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States," id. § 1415(i)(2)(A).
While such administrative or subsequent judicial proceedings are pending, the "stay put" provision of the IDEA entitles the child to remain in his "current educational placement." 20 U.S.C. § 1415(j); L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 911 (9th Cir. 2009). Section 1415(j) provides, in relevant part, that "[d]uring 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...."
The IDEA does not expressly define "current educational placement." However, courts have generally construed the phrase to mean "the placement described in the child's most recently implemented IEP." Johnson v. Special Educ. Hr'g Office, 287 F.3d 1176, 1180 (9th Cir. 2002). However, § 1415(j) also provides that the state and the parents may "otherwise agree" to an alternative placement, which then becomes subject to the stay put provision. Clovis Unified Sch. Dist. v. Cal. Office of Admin. Hr'gs, 903 F.2d 635, 641 (9th Cir. 1990). Such an agreement concerning the child's pendent placement will be implied where the parents receive a state administrative agency decision in favor of their choice of placement. Id. (discussing Sch. Comm. of the Town of Burlington v. Mass. Dep't of Educ., 471 U.S. 359, 372-73 (1985)). The IDEA's implementing regulations confirm this rule, providing that "[i]f 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 the stay put provision. 34 C.F.R. § 300.518(d).
The regulations further provide that when the complaint concerns a child who has turned three years old and is thus transitioning from Part C of the Act to Part B, "the public agency is not required to provide the Part C services that the child had been receiving" under his IFSP. Id. § 300.518(c). However, so long as "the child has been found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services... the public agency must provide those special education and related services that are not in dispute between the parent and the public agency." Id.
J.H., the son of George and Jennifer ("Parents"), is a four-year-old boy diagnosed with autism and apraxia who is eligible for special education services under the IDEA. In 2008, J.H. was referred to the District for a comprehensive assessment as part of his transition to Part B of the IDEA at age three. As part of this transition, a school psychologist, an OT therapist, and a speech and language pathologist assessed J.H. in July 2008.
Following this assessment, J.H.'s IEP team convened for the first time on September 10, 2008, to discuss his initial placement in the District. The District offered to place J.H. in the Preschool Collaborative Classroom ("PCC") at the Westminster Early Education Center for an extended school year. The PCC is a class of fourteen general education students and ten special education students taught by a special education teacher. An occupational therapist ("OT") is present weekly to work with the children's gross motor skills, and several of the special education students have behavioral intervention implementation (BII) aides. ...