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Settlement agreement does not establish stay-put where school district only agrees to tuition reimbursement and not formal placement at private school.

K.D. v. Department of Education, State of Hawaii, 58 IDELR 2 (9th Cir. 2011):  A U.S. Court of Appeals held that a school district’s agreement to pay a student’s tuition at a private school for the remainder of that particular school year did not establish the private school as the student’s pendency placement during any future disputes.

As part of a settlement to a due process complaint, the school district agreed to pay the tuition for a student with moderate to severe autism while he finished the school year at a private school.  Notably, the settlement agreement never called for “placement” of the student at the private school, merely tuition reimbursement.  Following resolution of the complaint, the school district conducted IEP team meetings to develop the student’s program going forward.  However, the parent again filed a due process complaint and sought to establish the private school as the student’s pendency placement, thereby entitling the parent to reimbursement.

The Court affirmed the district court’s determination that reimbursement was not warranted.  Overall, the Court found that the school district offered appropriate IEPs, defeating the parent’s claim for reimbursement.  Regarding her argument that tuition should be reimbursed based on the student’s stay-put placement, the Court held that there was no pendency for the period in which no due process complaint was in effect.  Following the parent’s filing of a new complaint, the private school was not pendency, since the settlement agreement did not agree to “place” the student at the private school.  Rather, the agreement only allowed for tuition reimbursement and therefore was not a “placement” that would serve as pendency.

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