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For purposes of the “stay put” provision under the Individual with Disabilities Education Act (20 U.S.C. § 1415(j)), a settlement agreement that merely requires tuition reimbursement and fails to call for “placement” lacks “the same legal effect as an affirmative agency decision to define a student’s ‘current educational placement.’”

K.D., a minor with autism, appeals the district court’s affirmance of the Hawaii Department of Education (DOE) hearing officer’s decision that K.D.’s tuition reimbursement request was untimely, that Loveland Academy (Loveland) was not his “stay put” placement, and that K.D.’s free and appropriate public education placement complied with the Individuals with Disabilities Education Act (IDEA). After K.D.’s kindergarten year in public school, his mother, C.L., enrolled him at Loveland, a private school. C.L. requested a due process hearing with the DOE, and the parties settled the request in March 2007. The DOE finalized K.D.’s individualized education program (IEP) and placed K.D. at Pearl Harbor Kai Elementary School for the 2007-08 school year. C.L. did not respond and nonetheless re-enrolled K.D. at Loveland. The Ninth Circuit first held that since K.D. did not request a due process hearing until August 28, 2009, he is not entitled to tuition reimbursement for the 2007-08 school year under the “stay put” provision of the IDEA. The provision requires that the child remain in his then-current placement “during the pendency of any proceedings;” thus, the Court found that it applies only after “a request for a due process hearing is filed.” Second, the Court concluded that K.D.’s stay put placement is not at Loveland because the March 2007 settlement agreement did not call for “placement” at Loveland and was limited to tuition reimbursement for the 2006-07 school year. Third, the Court held that K.D.’s reimbursement claim is time-barred. In so holding, the Court applied the 90-day, and not the two-year, statute of limitations because C.L. unilaterally enrolled K.D. at Loveland. Finally, the Court found that K.D.’s IEPs procedurally and substantively comply with the IDEA. AFFIRMED.