FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASHLAND SCHOOL DISTRICT, 

No. 08-35926 Plaintiff-Appellee,

D.C. No.

v.  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
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 plaintiffappellee and filed the brief. Nancy J. Hungerford, of the

Hungerford Law Firm, LLP, Oregon City, Oregon, was on the

brief.

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15923
OPINION

O’SCANNLAIN, Circuit Judge:

In this action under the Individuals with Disabilities Education 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 fifthgrade year, the migraines became so severe that E.H.’s parents (“Parents”) hospitalized their child. E.H.’s treating physician 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 Disabilities 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 seventh grade, E.H. maintained strong academic performance,

and even participated in a program at Southern Oregon Uni1As this case was filed under seal, we have disguised the student’s name

and omitted references to gender to retain anonymity. 

15924 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
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 ASDoperated 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 occasions for suicide attempts. By this time, E.H.’s treating physicians 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 program 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 resurfaced. Parents and ASD agreed that homebound instruction

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15925
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 residential facility. In December 2004, E.H. was once again hospitalized 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-ofstate residential treatment program. Prior to this transfer, Parents 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 residential 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 residential 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 counseling, 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 reimbursement 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

15926 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
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.2See 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 Parents gave ASD notice of their objections to the IEP—the hearing 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 requirement 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

2The hearing officer also concluded that the home tutoring ASD provided E.H. in November and December of 2004 did not properly implement the September 2004 IEP. 

3Since the parties appeared before the hearing officer, this section has

been renumbered as Oregon Administrative Rule 581-015-2515. No material changes were made to the rule. Additionally, this rule tracks the language 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. 

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15927
have warned ASD that E.H. might need a residential placement, which should have prompted it to consider the possibility 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 educational and medical problems were intertwined, ASD was obligated 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 tempered, 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 requirement, he concluded that the foregoing considerations compelled requiring ASD to reimburse Parents. Moreover,

because ASD had the statutorily required ten days notice with

15928 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
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 entitled 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 placement; 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.

4The 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. 

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15929
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 discretion. This claim relies on a misreading of the relevant statutory 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. Puyallup 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.

15930 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
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 independently 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 hearing 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, however, that the district court did not properly consider the hearing officer’s conclusions. Although the hearing officer

dedicated a majority of his opinion to evaluating the IEPs, the

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15931
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 adequate. Thus, in the district court’s opinion, Parents participated 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 concluded 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 hearing officer’s conclusions. We disagree. Like the district court,

we may not “substitute [our] own notions of sound educa15932 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
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 officer’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 hearing 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 considered the high cost of residential treatment when it denied

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15933
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 contention that the cost of E.H.’s residential treatment should necessarily 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 discretion by considering the cost of residential treatment.

2

Parents next argue that the district court improperly considered 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 discretion 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 district 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 reimbursement. T.A., 523 F.3d at 1088-89.

15934 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
[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 possibility 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 unilaterally 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 reimbursement). 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 conclusion that E.H.’s residential placement was necessitated by

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15935
medical, rather than educational, concerns. The IDEA

requires ASD to provide an education that meets E.H.’s “academic, 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 “developmental, 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 residential treatment). Accordingly, “our analysis must focus on

whether [the residential] placement may be considered necessary for educational purposes, or whether the placement is a

response to medical, social, or emotional problems that is necessary 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 transferred to a residential facility because of educational deficiencies 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 residential 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 hospitalized in early December 2004, for threatening to harm relatives

15936 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
and classmates. E.H.’s treating physician recommended a residential 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 finding that the residential placement was necessitated by medical, 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 opinion, 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 residential treatment. The district court found that Parents’ participation 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 provide E.H. with home tutoring when migraines prevented

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15937
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 information, 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 consideration 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 reimbursement.

IV

[15] Because we conclude that the district court did not

abuse its discretion by denying Parents’ request for reimbursement 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

5Additionally, such a complaint would have satisfied the notice requirement. See 20 U.S.C. § 1412(10)(C)(iii)(I)(aa). 

15938 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
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 unreasonably 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 treatment 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 reimburse 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 decision to dismiss their claims for pre-notice relief and reopened

the record. The additional hearing did not occur until November 2, and the hearing officer issued his new decision—this

time in favor of Parents—on January 2, 2007.

6At 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 renumbered; the text of the regulation has not changed in a material way. 

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15939
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 placement, 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 pendency placement for which the District otherwise would have

been responsible” because of a delay caused entirely by the

state’s hearing officer. Id.

7That 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. 

8Technically, 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. 

15940 ASHLAND SCHOOL v. PARENTS OF STUDENT E.H.
[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 proceedings 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.

ASHLAND SCHOOL v. PARENTS OF STUDENT E.H. 15941