763 F.3d 611 (6th Cir. 2014), 13-6514, N.W. v. Boone County Bd. of Educ.

Docket Nº:13-6514
Citation:763 F.3d 611
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:N.W., a minor child, by and through his next friend and parents J.W. and J.W., et al., Plaintiffs-Appellees, v. BOONE COUNTY BOARD OF EDUCATION et al., Defendants-Appellants
Attorney:Mary Ann Stewart, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants. Karen H. Ginn, CHEVALIER, GINN & KRUER, P.S.C., Ft. Mitchell, Kentucky, for Appellees. Mary Ann Stewart, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants. Karen H. Ginn,...
Judge Panel:Before: MOORE and McKEAGUE, Circuit Judges; STAFFORD, District Judge.[*]
Case Date:August 18, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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763 F.3d 611 (6th Cir. 2014)

N.W., a minor child, by and through his next friend and parents J.W. and J.W., et al., Plaintiffs-Appellees,

v.

BOONE COUNTY BOARD OF EDUCATION et al., Defendants-Appellants

No. 13-6514

United States Court of Appeals, Sixth Circuit

August 18, 2014

Argued, August 6, 2014

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:13-cv-00007--William O. Bertelsman, District Judge.

ARGUED:

Mary Ann Stewart, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants.

Karen H. Ginn, CHEVALIER, GINN & KRUER, P.S.C., Ft. Mitchell, Kentucky, for Appellees.

ON BRIEF:

Mary Ann Stewart, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants.

Karen H. Ginn, CHEVALIER, GINN & KRUER, P.S.C., Ft. Mitchell, Kentucky, for Appellees.

Mary Suzanne Cassidy, O'HARA, RUBERG, TAYLOR, SLOAN & SERGENT, Covington, Kentucky, for Amici Curiae.

Before: MOORE and McKEAGUE, Circuit Judges; STAFFORD, District Judge.[*]

OPINION

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KAREN NELSON MOORE, Circuit Judge.

N.W., by and through his parents, brought this action under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § § 1400-1482, arguing that the Boone County Board of Education and an assortment of individual defendants (collectively, " the District" ) had failed to offer a " free appropriate public education" (" FAPE" ) to N.W., as required by the IDEA. The district court ruled against N.W., but it nonetheless ordered the District to reimburse N.W.'s parents for the costs incurred as a result of N.W. attending a private school while the litigation played out. The District appeals this portion of the district court's ruling. Because the IDEA bars a district court from ordering reimbursement absent a finding that the school district failed to provide a

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FAPE, we VACATE this part of the district court's judgment.

I. BACKGROUND

N.W. is a nine-year-old, autistic child, born in 2004, who has been diagnosed with apraxia.1 In 2007, N.W.'s parents enrolled him in the District's schools when he was three years old. An Admissions and Release Committee (" ARC" ) determined that N.W. qualified for special-education services and placed him at St. Rita's School for the Deaf under an individual education program (" IEP" ). At St. Rita's, a private school in Cincinnati, N.W. participated in a special program for children with apraxia, which included learning sign language.

In June 2010, N.W.'s parents became dissatisfied with the program at St. Rita's, removed N.W. from the school, and unilaterally placed him at Applied Behavioral Services (" ABS" ), another private school in Cincinnati. N.W.'s parents requested that the District reimburse them for the tuition and transportation costs of N.W.'s attendance. The District convened an ARC in October 2010 and generated a new IEP. The District and N.W.'s parents, however, could not agree on placement--the District maintained that it could educate N.W. in its schools; N.W.'s parents wanted N.W. to remain at ABS. Unable to reach an agreement, the parties entered mediation.

Mediation resulted in a settlement agreement. The District agreed to reimburse N.W.'s parents for the tuition and transportation expenses incurred from August 19, 2010 to November 30, 2010. Additionally, the District agreed to pay a portion of N.W.'s tuition and transportation costs through the summer of 2011. N.W.'s parents, in turn, agreed to attend an ARC that would be tasked with creating a plan for N.W. to transition into the District's schools for the 2011-2012 school year. Moreover, " [t]he parties agree[d] and acknowledge[d] that this Agreement constitute[d] a settlement of [the] disputed claim[s]." Appellants App'x at 13 (Settlement Agreement). And " [n]either party ma[de] an admission as to educational placement, negligence, or violation of IDEA or Kentucky law." Id.

In the Spring of 2011, the District attempted to convene an ARC to develop a transition plan for N.W. N.W.'s parents repeatedly rescheduled. Eventually, the parties met and created a tentative transition plan. N.W.'s parents, however, balked at the plan's implementation and filed a due-process complaint on October 31, 2011. They alleged that the District's proposed plan would fail to provide N.W. a FAPE,2 and N.W.'s parents requested a due-process hearing. In addition, they asked " [t]hat ABS be considered [N.W.'s]

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'stay-put' placement." Appellants App'x at 3 (Due Process Compl.).

On March 12-13, 2012, the hearing officer convened a hearing at which N.W.'s father and various District representatives testified. The hearing officer issued his decision three months later and found that N.W.'s parents failed to prove that the District's plan would deny N.W. a FAPE. R. 4-1 at 11 (Due-Process Hr'g Dec.) (Page ID #41). However, the hearing officer also stated that " [t]he present IEP was being used while [N.W.] was attending ABS. [N.W.] continues to be a student at ABS during the pendency of this appeal. Under the situation here where the parties are disputing the transition plan, [N.W.] stays at ABS under 'stay put[.]'" Id. at 14 (Page ID #44) (citing Casey K. ex rel. Norman K. v. St. Anne Cmty. High Sch. Dist. No. 302, 400 F.3d 508 (7th Cir. 2005)). As a result, the hearing officer ordered the District to reimburse N.W.'s parents for the costs of N.W. attending ABS for 5.5 hours per day during the 2011-2012 school year. Id. at 15 (Page ID #45).

Both parties turned to the Exceptional Children Appeal Board (" ECAB" ). The ECAB affirmed the hearing officer's determination that N.W.'s parents had failed to show that the District would not provide N.W. with a FAPE. R. 16-3 at 4 (ECAB Dec.) (Page ID #210). However, the ECAB also reversed the hearing officer's stay-put decision, holding that ABS was not N.W.'s "...

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