Sam K. v. State of Hawaii Dep’t of Educ.

A department of education may give implied consent for the placement of a student with disabilities in private education under the Individuals with Disabilities Education Act by failing to timely develop an alternative when a student is likely to continue attending the same school, ultimately creating a bilateral placement.

Sam K., a disabled student, brought suit against Hawaii’s Department of Education (“DOE”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) for failing to reimburse Sam K.’s parents for expenditures on private school. Sam was placed in Loveland Academy (“Loveland”), a private school, after his parents settled with the DOE, both agreeing that Sam would attend Loveland for the school years of 2007–08 through 2009–10, and that the DOE would cover the cost of Sam’s tuition. After the 2009–10 school year ended, the DOE met with the parents to develop a new Individual Education Plan (“IEP”) for Sam, but the parties were unable to reach an agreement. The DOE informed the Parents that it had created a final IEP for Sam in April 2011, when the 2010–11 school year was almost over. The IEP called for Sam to be placed in public school, but his parents refused to remove Sam from Loveland. The parents requested and received a due process hearing that determined that the placement of Sam in Loveland was a unilateral decision, and that the parents’ request for the due process hearing was untimely. The parents appealed, and the district court reversed the finding, concluding that placement was bilateral and that a two-year statute of limitations applied. On appeal, the Ninth Circuit agreed, holding that the DOE tacitly consented to Sam’s ongoing education at Loveland by failing to promptly offer any alternatives when the DOE was aware that Sam was enrolled for the 2010–11 school year at Loveland. The panel also held that the reduction of attorney’s fees was reasonable, given the prevailing rates in the community. AFFIRMED.