                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                      _____________________

                          Nos. 97-30949
                           and 98-30088
                      _____________________


                 ST. TAMMANY PARISH SCHOOL BOARD,

                                                Plaintiff-Appellee,

                              versus

              STATE OF LOUISIANA; THE STATE BOARD OF
                ELEMENTARY AND SECONDARY EDUCATION;
                 LOUISIANA DEPARTMENT OF EDUCATION;
        THE LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS,

                                              Defendants-Appellants,

                              versus

            DONNA SLOCUM, Individually and on behalf
                of her minor child Daniel Slocum;
               DOUGLAS SLOCUM, Individually and on
            behalf of his minor child Daniel Slocum,

                                              Defendants-Appellees.

_________________________________________________________________

          Appeals from the United States District Court
              for the Eastern District of Louisiana
_________________________________________________________________
                           May 27, 1998

Before KING, BARKSDALE, and PARKER, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     In these two interlocutory appeals, concerning the Individuals

with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq.,

the primary issue is, pending a ruling on the merits, payment of

costs for a disabled student placed at an out-of-state facility.

The State of Louisiana, the State Board of Elementary and Secondary

Education, the Louisiana Department of Education, and the Louisiana
Department   of   Health   and    Hospitals      (collectively,     the   State

defendants) appeal from four orders regarding the placement of

Daniel Slocum at a private residential facility in Kansas, at the

expense of the Louisiana Department of Education, during the

pendency of this IDEA litigation.               We AFFIRM, and REMAND for

further proceedings.

                                     I.

     Daniel Slocum is an autistic child, eligible for IDEA special

education and related services.          Until April 1996, he was educated

in a self-contained classroom in the public schools of St. Tammany

Parish, Louisiana.     On 3 April 1996, his parents and the School

Board staff met to prepare an individualized education program

(IEP) for him.

     At the IEP meeting, it was agreed that, because of the

recently-increased     severity    of    Daniel    Slocum’s    self-injurious

behavior, he could no longer be educated in the self-contained

classroom.   Accordingly, the IEP, agreed to by the Slocums and the

Board, provided that Daniel Slocum’s placement was “Hospital or

Homebound Services or other institution providing assessment and

training   and    treatment”.      The    IEP    stated   further    that   the

“[s]election of the site will be made in accordance with the

provisions of [State] Bulletin 1706, Section 451(B)”; and that

“[r]eferral will also be made to [the Louisiana Department of

Health and Hospitals] and any other appropriate State agency”.

     The Bulletin referenced in the IEP states:               “School systems

must apply to the [Louisiana] Department [of Education] when a


                                   - 2 -
student is referred to or is to be placed in an approved public or

nonpublic day or residential school outside the geographic area of

the   school     system,      unless    the     placement   is    in    an   approved

cooperative       operated      by     school     systems”.       Regulations      for

Implementation of the Exceptional Children’s Act, Bulletin 1706, §

451B (Office of Special Educational Services, Louisiana Dept. of

Educ. 7/1/94) (emphasis added).

      On 4 April, the day after the IEP meeting, the Slocums’

attorney informed the School Board by letter that the Slocums had

enrolled Daniel Slocum in Heartspring School, a private residential

facility in Wichita, Kansas, pending selection of a site by the

School Board.      That same day, 4 April, the School Board formally

requested the Louisiana Department of Education to assist it and

the Slocums in locating a residential facility for Daniel Slocum,

and also requested guidance on how the placement was to be funded.

      A   week    later,   on    11    April,    the   Department      of    Education

responded that, because the IEP did not indicate that a specific

placement decision had been made, the Department was unable to

carry out its responsibilities under Bulletin 1706, § 451B; but

that, once the IEP committee had made a specific placement decision

and the site selected was determined to be outside the geographic

area of the School Board, the Department would then review the

School Board’s request.

      In early May, the Superintendent of the School Board requested

assistance       from   the     State    Superintendent          of    Education   in

determining a placement and program for Daniel Slocum.


                                        - 3 -
      That June, the Slocums requested a due process hearing,

seeking to have the School Board pay for Daniel Slocum’s education

and related services at Heartspring.                  By letter to the Department

of Education, the School Board demanded in late July that the State

assume those costs and advised that “the Department of Education

should participate in the due process hearing if the possibility

exists that the State of Louisiana might be held responsible for

the cost of the residential placement”.

      The Department of Education’s Office of Special Educational

Services responded in early August that the School Board’s request

for State     participation       at    the     due    process   hearing   had   been

referred to the legal staff for review and recommendation. In mid-

August, the Department declined the School Board’s request for

Department participation in the hearing.

      Later that month, despite this refusal, the School Board

advised the Commissioner of Administration, the Governor, and the

Secretary of the Louisiana Department of Health and Hospitals

             that, based on the circumstances of the case,
             ... the State of Louisiana, the Department of
             Education, and/or the Department of Health and
             Hospitals need to be made parties to these
             proceedings.

      The due process hearing was conducted on 18-20 September and

13-15 November 1996, without the participation of any of the State

defendants. In January 1997, the Independent Hearing Officer ruled

in   favor    of   the   School        Board,    finding     that   the    placement

recommended for Daniel Slocum in the April 1996 IEP was designed to




                                         - 4 -
address     primarily       medical    concerns       and   was    not   required      for

educational purposes.

     The Slocums appealed to the Louisiana Department of Education,

which assigned a three-member State Level Review Panel.                        In April

1997,   a   majority     of    the    Panel    reversed      the    decision      of   the

Independent Hearing Officer, concluding that residential placement

at Heartspring was appropriate; and that the School Board was

obligated to reimburse the Slocums for the costs of Daniel Slocum’s

education and related services there.                  The Panel stated, however,

that the School Board was “not precluded from asking for a sharing

of cost, expenses or reimbursement from the State Educational

Authority, the State Department of Education, Department of Health

and Human Resources, or any other Louisiana entity or Federal

agency that they may apply to”.

     A week later, the Slocums filed an action in federal court

against the State of Louisiana and the School Board, seeking

damages and attorneys’ fees.             That action has been stayed pending

resolution of the underlying action for the interlocutory appeals

in issue (the hereinafter described action filed in district court,

under IDEA, for review of the Review Panel’s decision).

     As noted, later in April 1997, pursuant to the IDEA, 20 U.S.C.

§ 1415(e)(2), the School Board filed in federal court the action

which spawned these interlocutory appeals.                        The action is for

judicial     review    of     the    State    Level    Review      Panel’s   decision.

Section     1415(e)(2)       provides,       inter     alia,      that   “[a]ny    party

aggrieved by the findings and decision” of the state educational


                                         - 5 -
agency “shall have the right to bring a civil action ... in any

State court of competent jurisdiction or in a district court of the

United States”.     20 U.S.C. § 1415(e)(2).         Named as defendants, in

addition to the Slocums, were the State of Louisiana, the State

Board   of    Elementary   and    Secondary    Education,    the   Louisiana

Department of Education, and the Louisiana Department of Health and

Hospitals.

     On 30 June, the Slocums moved, pending resolution on the

merits, for keeping the placement at Heartspring, pursuant to 20

U.S.C. § 1415(e)(3), referred to as the “stay-put” provision.             The

section provides:

             During the pendency of any proceedings
             conducted pursuant to this section, unless the
             State or local educational agency and the
             parents or guardian otherwise agree, the child
             shall remain in the then current educational
             placement of such child....

20 U.S.C. § 1415(e)(3) (emphasis added).

     In that motion, and also pursuant to § 1415(e)(3), the Slocums

also requested that, during the pendency of the litigation, the

School Board pay the costs of Daniel Slocum’s education and related

services at Heartspring.     They did not seek relief from the State

of Louisiana or its Department of Education. But, the School Board

countered that the State should share in any assessment of such

stay-put costs.

     In mid-August 1997, the district court granted the Slocums’

motion.   It concluded that, from the 3 April 1997 date of the State

Level Review Panel’s decision (rendered a year after the initial

placement     at   Heartspring)     until     the    resolution    of   these

                                    - 6 -
proceedings, Heartspring was Daniel Slocum’s § 1415(e)(3) “current

educational    placement”.   (The      court     decided   that      it   would   be

premature for it to determine Daniel Slocum’s “current educational

placement” at the time of the earlier 3 April 1996 IEP, because

that “would essentially be deciding the merits of the school

board’s” challenge to the Review Panel decision.)                And, it ordered

the Department of Education, not the School Board, to pay the cost

of Daniel Slocum’s education and related services during this

“current educational placement”.            On 25 September, the district

court denied the State defendants’ motion for rehearing.

     The State has appealed both orders. The district court denied

the State defendants’ motion for a stay pending appeal, and ordered

immediate enforcement of the stay-put order.               Likewise, our court

and the Supreme Court denied a stay pending appeal.

     In early October 1997, the State defendants moved in the

district court for authority to manage or participate in Daniel

Slocum’s IEP conference at Heartspring, then scheduled for mid-

November.     That motion was denied as moot, because the November

conference was postponed.

     Next, the State defendants moved in early November 1997 for an

order requiring scheduling and state management of an IEP for

Daniel   Slocum,    asserting,        on   the    basis    of    a    Heartspring

advertisement, that his condition had dramatically improved and

warranted reevaluation.      The State defendants maintained that the

administration     of   Prozac   to    Daniel     Slocum    in    February    1996

triggered the increase in his self-injurious behavior that March,


                                      - 7 -
when the St. Tammany IEP evaluation was conducted; and that Daniel

Slocum’s condition improved when he was taken off Prozac, just

prior to his enrollment at Heartspring in April 1996.             The State

defendants also asserted that the stay-put order was ineffective

while it was on appeal to our court.

     The district court denied the motion in late December.               And,

at the end of January 1998, it denied a motion for reconsideration.

The State defendants have also appealed both orders.

     Trial is set for 15 June 1998.

                                     II.

     The   State   defendants’      motion    to   consolidate    these    two

interlocutory appeals is GRANTED.           For each appeal, based on the

facts and circumstances of this case, we conclude, dubitante, that

we have jurisdiction under the collateral order doctrine.

     Concerning the appeal from the stay-put order, see Susquenita

School Dist. v. Raelee S., 96 F.3d 78, 81 n.4 (3d Cir. 1996) (stay-

put order qualifies as a collateral order because it conclusively

determines student’s pendent placement and tuition reimbursement

rights   associated   with   such     placement;     resolution    of     those

questions is completely separate from the merits issues which focus

on adequacy of the proposed IEP; and the propriety of the pendent

placement and the concomitant financial responsibility are not

effectively reviewable on appeal of a decision on the merits).

     Similarly, as for the appeal concerning the denial of the

State defendants’ motion for scheduling and state management of an

IEP for Daniel Slocum, the orders in issue conclusively deny the


                                    - 8 -
State defendants a right to schedule and manage an IEP pending a

merits-decision; resolution of that question is separate from the

merits-decision, which focuses on the adequacy of the April 1996

IEP; and the interlocutory order is not effectively reviewable on

appeal of the merits-decision.

      In the first appeal, the State defendants raise the following

issues: (1) whether the district court erred by imposing liability

on the Department of Education for interim costs pending a merits-

decision; (2) whether those costs are reasonable; (3) whether the

Department can obtain reimbursement from the Slocums if the State

defendants prevail on the merits; (4) whether IDEA, as interpreted

by the district court, is unconstitutional; and (5) whether the

Slocums violated IDEA by unilaterally placing Daniel Slocum at

Heartspring, without giving the School Board and/or the State

defendants    an    opportunity    to    make     a    site   determination      in

accordance with the IEP.     At issue in the second appeal are whether

the district court erred (1) by concluding that the stay-put order

remains in effect while it is on appeal; and (2) by refusing to

allow   the   State   defendants    to   manage       or   participate    in    the

formulation of Daniel Slocum’s IEP.

      Regarding our standard of review, the State defendants assert

that their challenges to the orders raise only legal questions,

reviewed de novo; the Slocums respond that, because the orders were

entered pursuant to the IDEA stay-put provision, which functions as

an   automatic     injunction,    our    review       is   only   for   abuse    of

discretion.      Of course, we, not the parties, determine the proper


                                    - 9 -
standard of review.      See, e.g., United States v. Vontsteen, 950

F.2d 1086, 1091 (5th Cir.) (en banc) (“no party has the power to

control our standard of review”), cert. denied, 505 U.S. 1223

(1992).

     Our court has not considered the appropriate standard of

review for such IDEA interlocutory orders.           The Act provides that

“the court shall receive the records of the [state] administrative

proceedings, shall hear additional evidence at the request of a

party, and,     basing   its   decision   on   the   preponderance   of   the

evidence, shall grant such relief as the court determines is

appropriate”.     20 U.S.C. § 1415(e)(2).            Accordingly, we have

described the district court’s § 1415(e)(2) review as “virtually de

novo”. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d

245, 252 (5th Cir. 1997), cert. denied, ___ U.S. ___, 118 S. Ct.

690 (1998).     And, our court will “review de novo, as a mixed

question of law and fact, a district court’s [merits-]decision that

a local school district’s IEP was or was not appropriate and that

an alternative placement was or was not inappropriate under the

IDEA”.    Id.

     For these interlocutory appeals, however, we are not reviewing

the merits of Daniel Slocum’s IEP or his placement at Heartspring.

Instead, we are reviewing interlocutory orders relating to Daniel

Slocum’s interim placement, to include the costs of such placement,

during the pendency of this litigation.         Under such circumstances,

we will review for abuse of discretion.        See 20 U.S.C. § 1415(e)(2)

(authorizing court to “grant such relief as the court determines is


                                  - 10 -
appropriate”); School Committee of Town of Burlington, Mass. v.

Department    of   Educ.   of   Mass.,    471   U.S.   359,   369-70    (1985)

(interpreting IDEA as conferring “broad discretion on the court” to

order “appropriate” relief, including “retroactive reimbursement to

parents” for the earlier costs of placement in a private school);

Susquenita, 96 F.3d at 86-87 (interpreting IDEA to permit district

court to award costs pending a merits-decision and reviewing such

assessment for abuse of discretion).

     In addition, our court has not considered whether IDEA permits

a district court to order payment of the costs of an interim

placement,    prior   to   a    merits-decision.       Because    the    State

defendants do not challenge the district court’s authority to award

such costs, we assume, without deciding, that such an award is

authorized under IDEA, as interpreted by the Third Circuit in

Susquenita.

                                     A.

     Concerning the district court’s holding the Department of

Education solely responsible for payment of the costs of Daniel

Slocum’s education and related services at Heartspring from 3 April

1997 (the date of the Review Panel decision) through the pendency

of this litigation, the State defendants maintain that (1) the

Department is not vicariously liable for the School Board’s IDEA

violations; (2) imposition of liability on the Department violates

due process, because the State defendants were not parties to the

administrative hearings; (3) the district court excluded evidence

relevant to the validity of the administrative decision; (4) the


                                   - 11 -
procedure for determining interim liability was improper; and (5)

the district court erred by concluding that the Review Panel

decision constituted an agreement between the State and the Slocums

that Heartspring was an appropriate educational placement for

Daniel Slocum.

                                        1.

      As noted, § 1415(e)(2) gives the district court authority to

“grant such relief as [it] determines is appropriate”.                   20 U.S.C.

§   1415(e).       In   Burlington,    the    Supreme     Court     construed   this

language      as   authorizing   a     district      court     to   “order   school

authorities to reimburse parents for their expenditures on private

special education for a child if the court ultimately determines

that such placement, rather than a proposed IEP, is proper under

the   Act”.        Burlington,   471     U.S.     at    369    (emphasis     added).

Burlington dealt with retroactive reimbursement, rather than, as

here, reimbursement pending a merits-decision. But, in Susquenita,

the Third Circuit extended Burlington to include awarding stay-put

costs pending a merits-decision, concluding that “the concerns

cited by the Court in support of retroactive reimbursement favor

including the interim assessment of financial responsibility in the

range of relief available under the IDEA”.               Susquenita, 96 F.3d at

86.     Other      than   Burlington,        which     dealt   with    retroactive

reimbursement after a merits-decision, the Susquenita court did not

cite authority for its decision to impose financial responsibility

on the school district prior to a merits-decision.




                                      - 12 -
     IDEA does not contain an express provision for reimbursement,

or for the allocation between local and state educational agencies

of financial responsibility for such reimbursement.         Reimbursement

to parents for private school tuition (whether retroactive or

pending a merits-decision) is an equitable remedy, which may be

imposed in the discretion of the district court.       Accordingly, we

must examine the language and structure of IDEA as a whole, in the

light of its purpose, to determine whether, pending a merits-

decision, it permits allocation of financial responsibility to the

Department for interim placement costs.       See Gadsby by Gadsby v.

Grasmick, 109 F.3d 940, 952 (4th Cir. 1997).        (Gadsby considered

the cost-allocation issue in a different procedural posture — after

a merits-decision.)

     The purpose of IDEA

            is principally to provide handicapped children
            with a free appropriate public education which
            emphasizes special education and related
            services designed to meet their unique needs.
            The Act contemplates that such education will
            be provided where possible in regular public
            schools, with the child participating as much
            as possible in the same activities as
            nonhandicapped children, but the Act also
            provides for placement in private schools at
            public expense where this is not possible.

Burlington, 471 U.S. at 369 (internal quotation marks and citations

omitted).

     We agree with Gadsby that “[t]here is nothing in either the

language or the structure of IDEA that limits the district court’s

authority    to   award   reimbursement   costs   against    the   [state

educational agency], the [local educational agency], or both in any


                                 - 13 -
particular case.”       Gadsby, 109 F.3d at 955.    We also agree that

“both the language and the structure of IDEA suggest that either or

both entities may be held liable for the failure to provide a free

appropriate    public    education,   as   the   district    court      deems

appropriate after considering all relevant factors”.             Id.

     First,    IDEA   places   primary   responsibility     on    the   state

educational agency, by providing that it “shall be responsible for

assuring that the requirements of this subchapter are carried out”.

20 U.S.C. § 1412(6).

          This language suggests that, ultimately, it is
          the     [state     educational      agency]’s
          responsibility to ensure that each child
          within its jurisdiction is provided a free
          appropriate public education. Therefore, it
          seems clear that [a state educational agency]
          may be held responsible if it fails to comply
          with   its   duty   to  assure   that   IDEA’s
          substantive requirements are implemented.

Gadsby, 109 F.3d at 952.        In Gadsby, the Fourth Circuit found

support in the legislative history of § 1412(6), which indicates

that the provision was included in the statute to “assure a single

line of responsibility with regard to the education of handicapped

children”.    Gadsby, 109 F.3d at 953 (quoting S. REP. NO. 94-168, at

24 (1975)).

     That the district court did not err by interpreting IDEA to

allow it to impose liability upon the Department, rather than the

School Board, for the costs pending a merits-decision is further

supported by § 1414(d)(1):

          Whenever a State educational agency determines
          that a local educational agency ... is unable
          or unwilling to establish and maintain
          programs of free appropriate public education

                                 - 14 -
           which meet the requirements [for the provision
           of a free appropriate public education], ...
           the State educational agency shall use the
           payments which would have been available to
           such local educational agency to provide
           special   education   and   related   services
           directly to handicapped children residing in
           the area served by such local educational
           agency.

20 U.S.C. § 1414(d)(1).

     “Under this provision, once [a local educational agency] is

either unable or unwilling to establish and maintain programs in

compliance with IDEA, the [state educational agency] is responsible

for directly providing the services to disabled children in the

area.”   Gadsby, 109 F.3d at 953.       See also Todd D. by Robert D. v.

Andrews, 933 F.2d 1576, 1583 (11th Cir. 1991) (state educational

agency must take responsibility for providing free appropriate

public   education   where   disabled    student      is   better   served   by

regional or state facility than local one); Kruelle v. New Castle

County Sch. Dist., 642 F.2d 687, 696-98 (3d Cir. 1981) (affirming

district   court’s   order   requiring       state   educational    agency   to

provide student with full-time residential program where local

educational agency failed to provide adequate program).

     In this regard, IDEA requires state educational agencies to

establish policies and procedures for the administration of funds

to local educational agencies and to ensure that those funds are

expended in accordance with IDEA’s provisions.              See 20 U.S.C. §§

1413(a)(1),   1413(a)(2).       And,     §    1413(a)(13)     directs   state

educational agencies to establish “policies and procedures for

developing and implementing interagency agreements between the


                                 - 15 -
State educational agency and other appropriate State and local

agencies to ... define the financial responsibility of each agency

...   and   [to]   resolve   interagency     disputes”.         20   U.S.C.   §

1413(a)(13).       But,   although   the   Department     has    established

regulations and procedures for the development of interagency

agreements, there is no applicable interagency agreement covering

the dispute at hand.

      Florence County School Dist. Four v. Carter, 510 U.S. 7, 16

(1993), directs that “[c]ourts fashioning equitable relief under

IDEA must consider all relevant factors”.          In Gadsby, the Fourth

Circuit stated that district courts, in determining whether to

allocate reimbursement costs against the state, or the local,

educational agency, should consider “the relative responsibility of

each agency for the ultimate failure to provide a child with a free

appropriate public education”.       Gadsby, 109 F.3d at 955.          As the

Fourth Circuit noted, “in some instances it would be unfair to hold

the [state educational agency] liable for reimbursement costs of

private school tuition, where the [local educational agency] was

primarily responsible for the failure”.          Id.   On the other hand,

“there may be cases in which it would be unfair to hold the [local

educational agency] liable for costs, where, for example, there was

no appropriate facility within the [local educational agency]’s

jurisdiction for the child and the [state educational agency]

failed to provide an alternative.”         Id.

      In determining that the Department, rather than the School

Board, should be liable for the placement costs pending a merits-


                                 - 16 -
decision, the district court, noting its broad equitable powers to

fashion appropriate relief, considered the following factors: (1)

the School Board had requested that the State participate in the

administrative hearings, but it refused; (2) the State defendants

had   a     full    opportunity     to    brief    and     orally   argue   the   cost

allocation issue; (3) pursuant to § 1412(6), the Department is

ultimately responsible for implementing IDEA’s provisions; and (4)

Congress’ goal of ensuring consistency and stability in a disabled

child’s      education     would    be    thwarted    if      interagency   budgetary

disputes were allowed to disrupt the financing of that child’s

educational placement.            We note also that, the day after the IEP

meeting, the School Board’s Supervisor of Special Education wrote

to    the    Department’s        Office    of   Special       Educational   Services,

requesting that the Department assist the family and the School

Board to locate, evaluate, and ultimately approve a residential

facility for Daniel Slocum.

       We conclude that, pending a merits-decision, the district

court       did    not   abuse   its     discretion      by   allocating    financial

responsibility to the Department, rather than the School Board, for

the costs of Daniel Slocum’s education and related services at

Heartspring from the date of the Review Panel’s decision through

the balance of this litigation.              The court considered the relevant

factors, and its decision is supported by the record, as well as by

IDEA’s structure and purpose.

       Along this line, we reject the State defendants’ contention

that the imposition of such interim liability on the Department


                                          - 17 -
violates the intent of the 1997 amendments to IDEA which, according

to the State defendants, reflect congressional intent to require

state supervision while continuing local responsibility.                   Even

assuming that those amendments apply, they do not support this

contention.        Nothing in them prohibits a district court from

exercising its discretion to allocate interim liability to the

Department, rather than the School Board.

                                        2.

       Next,     the    State   defendants     contend    that   imposition   of

liability on the Department violated due process, because it was

based on administrative proceedings to which they were not parties.

       The State defendants assert that, although LA. REV. STAT.

17:1952 (West Supp. 1997) permits a claim against the State in the

administrative process, neither the Slocums nor the School Board

took the necessary steps to make the State defendants parties.

That    Louisiana       statute   requires     the   Department    to   prepare

regulations       and     establish    procedures        to   ensure    parental

participation in the determination of appropriate special education

for children with disabilities.              It does not contain an express

provision establishing a procedural mechanism for making the State

a party to IDEA administrative proceedings.

       Along this line, the regulations promulgated by the Department

for due process hearings and state level administrative review are

found in Bulletin 1706, §§ 507-513.             With respect to due process

hearings, they provide:

               A parent initiates a [due process] hearing by
               sending written notice to the LEA [local

                                      - 18 -
           educational   agency].   The LEA initiates a
           hearing by    sending written notice to the
           parent and    the SDE [State Department of
           Education].

Regulations for Implementation of the Exceptional Children’s Act,

Bulletin 1706, § 507 (Office of Special Educational Services,

Louisiana Dept. of Educ. 7/1/94). Those regulations do not contain

provisions or a procedural mechanism for making the State a party

to IDEA administrative proceedings.

     Despite the absence of any Louisiana statute or regulation

establishing such a procedure, and as described supra, the School

Board attempted to obtain the State defendants’ participation in

the administrative proceedings; but, the State defendants declined.

They were, however, made parties to this federal court action — the

School Board’s challenge to the administrative decision — and had

the opportunity to participate in the proceeding to award placement

costs pending a merits-decision.

     In sum, the State defendants had notice and an opportunity to

be heard prior to the imposition of the interim cost liability at

issue.   There was no due process violation.

                                 3.

     The State defendants summarily assert that the district court

erred by refusing to consider any “merits” issues challenging the

validity of the administrative rulings.        Moreover, they do not

state what issues should have been considered; they state merely

that “the defenses set forth herein, as well as others, should have

been considered by the district court before assessing interim cost

liability”.   We assume that the referenced issues include the

                               - 19 -
reasonableness of the costs, and whether they are subject to IDEA’s

exclusion for medical services, see 20 U.S.C. § 1401(17), discussed

infra.

      In Susquenita, the Third Circuit stressed that the issues to

be   reviewed    in   a   stay-put      proceeding          “are   narrow,   involving

practical questions of where [the student] should attend school

while    the    review    process      proceeds,       who    must    pay    for   [the]

placement, and when that payment must be made”; and that “merits”

issues, such as the adequacy of the IEP, were not properly before

it on the interlocutory appeal.             Susquenita, 96 F.3d at 81.

      In ruling on the stay-put placement, the district court

considered the narrow issues that were properly before it.                         To the

extent that the State defendants sought consideration of issues

related to the merits, such as the adequacy and meaning of the IEP,

and the propriety of the placement at Heartspring prior to the date

of the State Level Review Panel decision in favor of the Slocums,

the district court properly refused to consider such issues in

ruling    on    stay-put     placement.          As    stated,       the    nature    and

reasonableness of the interim costs are discussed infra.

                                           4.

      The State defendants contend further that the interim cost

issue should not have been determined through ordinary motion

practice,      because     (1)   the    ruling        was    based    solely    on    the

administrative proceedings, to which they were not parties; and (2)

the documents submitted by the Slocums did not provide a factual

basis    for   determining       whether    Heartspring’s          charges     were   for


                                        - 20 -
special education and related services or were, instead, subject to

the   medical   services   exclusion.     See   20    U.S.C.   §   1401(17)

(excluding from definition of “related services” medical services

other than for diagnosis or evaluation).             The State defendants

assert that the district court should have conducted an evidentiary

hearing in which they would have had the opportunity to submit

evidence and to cross-examine witnesses regarding Heartspring’s

charges.

      But again, with respect to the first contention, the State

defendants had the opportunity to participate in the administrative

hearings; they declined to do so.       Accordingly, the fact that they

were not parties to those proceedings is not a basis for requiring

an evidentiary hearing in district court.        The State defendants’

second contention, concerning the costs documentation submitted by

the Slocums, is discussed in part II.B., infra.

                                  5.

      The district court’s imposition of interim liability upon the

Department is based, in part, on its conclusion that, for purposes

of the stay-put determination, the State Level Review Panel’s

decision constituted an “agreement” between the Slocums and the

State that Heartspring is the appropriate placement for Daniel

Slocum.    The State defendants challenge this conclusion, claiming

the Independent Hearing Officer and Review Panel members are

completely independent of the Department.

      As discussed, IDEA’s “stay-put” provision states, in pertinent

part:


                                - 21 -
            During the pendency of any proceedings
            conducted pursuant to this section, unless the
            state or local educational agency and the
            parents or guardian otherwise agree, the child
            shall remain in the then current educational
            placement of such child....

20 U.S.C. § 1415(e)(3) (emphasis added).               In Burlington, the

Supreme    Court   stated    that   the    state   administrative    agency’s

decision in favor of the parents, who had unilaterally placed their

child in a private school after rejecting the IEP proposed by the

school district, “would seem to constitute agreement by the State

to the change of placement”, and that the parents “were no longer

in violation of § 1415(e)(3)” after the date of the administrative

agency’s decision in their favor.          471 U.S. at 372.

     Consistent with Burlington, the district court did not abuse

its discretion by concluding that, for purposes of § 1415(e)(3),

the Review Panel decision constituted an “agreement” between the

State and the Slocums that, during the pendency of this action,

Heartspring was the appropriate educational placement.

                                      B.

     The State defendants note that the State receives only about

$400 per year per student for special education, so that the

unfunded liability greatly exceeds the IDEA federal funding. Along

this line, they contest the district court’s not making findings

that the Heartspring costs (ranging from $12,000 to $20,000 per

month)    were   primarily   for    educational,     rather   than   medical,

purposes.   Likewise, they assert that the court either rejected or

ignored questions concerning the reasonableness of the costs, by



                                    - 22 -
apparently taking the position that, for stay-put purposes, they

are not subject to review.

     In denying the State defendants’ motion for rehearing, the

district court stated that the “determination of educational or

medical expenses focus[es] squarely on the substantive question of

liability” and, thus, was not properly before it in ruling on the

stay-put motion.   This implies that, at trial on the merits, the

State defendants will be given an opportunity to challenge the

interim costs (i.e., whether they are subject to IDEA’s medical

services exclusion).    See 20 U.S.C. § 1401(17) (excluding from

definition of “related services” medical services, other than for

diagnosis or evaluation).

     With respect to the reasonableness of the interim costs, the

district court stated: “Whether Daniel [Slocum’s] interim expenses

are excessive as a matter of law is not at issue; IDEA makes clear

that during these proceedings, Daniel is to stay at Heartspring at

public expense as long as those expenses are properly documented”.

This implies that properly documented expenses, no matter whether

unreasonable or excessive, must be paid by the State during the

stay-put period.   The Slocums maintain that the reasonableness of

interim costs is not properly considered during the stay-put

period; but, they acknowledge that reasonableness may become an

issue during the merits portion of the litigation.

     Although the district court stated that it would “retain

oversight for the purpose of resolving disputes over reimbursement

requests, which must be properly documented”, it is unclear whether


                              - 23 -
such oversight includes review for reasonableness or excessiveness.

For example, in a footnote to its order denying reconsideration of

the order denying the State defendants’ motion to manage an IEP (as

discussed in part II.G., infra), the district court indicated that

reasonableness of the interim costs was reviewable, and that, if

they succeed on the merits, the State defendants might be able to

recover funds paid to Heartspring:

           The state defendants complain that the
           reimbursement   requests  submitted   by  the
           Slocums have recently increased, justifying
           defendants’ access to Heartspring records and
           greater involvement in the IEP process.    If
           these requests are reasonable and properly
           documented, however, the state defendants are
           obligated to pay, with success on the merits
           the remaining avenue for recovery of these
           funds.

      On the other hand, as discussed in part II.C., infra, the

district court also stated that, even if the State defendants

ultimately prevail on the merits and the State Level Review Panel

decision is held to be erroneous, they are not entitled to be

reimbursed by the Slocums for the interim costs of Daniel Slocum’s

education and related services at Heartspring.

      It is not clear whether the State defendants have requested

the   district   court   to   rule   on   any   disputes   over   specific

reimbursement requests. The Slocums assert that they have not; but

the record reflects that the State defendants apparently believe

that they lack sufficient data upon which to base a specific

challenge. For example, in their motion for rehearing of the order

denying their motion to conduct and manage an IEP conference, the



                                 - 24 -
State defendants requested that the court order the Slocums to

produce documentation to support Heartspring’s invoices.

     Accordingly, it is unclear whether the district court intends

to allow the State defendants to be reimbursed by the Slocums for

any of the Heartspring costs during the stay-put period, regardless

of whether such costs are unreasonable, excessive, or covered by

IDEA’s medical services exclusion, and irrespective of whether the

State defendants prevail on the merits.          In any event, at some

point in these proceedings, the State defendants must be given a

meaningful   opportunity   to   challenge     both    the   nature   and    the

reasonableness of the Heartspring costs.             The timing of such an

opportunity is, of course, a matter to be determined by the

district court, in the exercise of its sound discretion.              But, in

so ruling, we do not reach, nor do we express an opinion on,

whether   the   State   defendants      are   entitled      under    IDEA    to

reimbursement for any such challenged stay-put costs.

                                   C.

     The most troubling issue is whether the district court abused

its discretion by concluding that the Slocums will not be required

to reimburse the Department for at least some of the stay-put

costs, even if the State defendants prevail on the merits.                  (In

this regard, the State defendants contend that the district court

should have required the Slocums to post a bond as security for

such potential reimbursement.)     This discussion overlaps with that

in part II.B., because it does not seem possible — and certainly

not advisable — at this stage of the litigation to attempt to


                                 - 25 -
distinguish between unreasonable or excessive costs that pertain to

discrete   or   episodic    events   or   incidents,   as   opposed   to

unreasonable or excessive costs that are ongoing and fundamental to

the stay-put facility.     It is for the district court, in the first

instance, to make that call.

     In ruling that the Department is not entitled to be reimbursed

by the Slocums for stay-put costs, even if the State defendants

prevail — in other words, even if the Review Panel decision, which

is the basis for the stay-put order and the award of interim costs,

is reversed — the court reasoned as follows:

           By virtue of the State Level Review Panel’s
           decision, the state has agreed as a matter of
           law with the child’s placement. Even if the
           Court were to eventually decide that the
           panel’s decision was in error, an agreement
           still exists for the period of time leading up
           to this Court’s decision [on the merits] and
           the parents would not be deemed in violation
           of the law during that time frame.         The
           parents, therefore, should not be made to
           reimburse the state or school board for a
           placement with which the state agreed and for
           which no violation of law took place. In this
           interim period, the parents are deemed in
           compliance with IDEA and Daniel is entitled to
           a free, appropriate public education....

                A primary purpose of the stay-put
           provision is to protect a child from being put
           in an unsuitable placement and possibly
           incurring harm while awaiting the lengthy
           outcome of the litigation. If parents who are
           in compliance with the IDEA are required to
           reimburse the school district or the state,
           parents without substantial means could be
           forced to leave a child in the less suitable
           placement because they cannot afford to pay
           for    the    private    interim    placement.
           Additionally, parents may be forced to
           withdraw their child from a placement which
           they and the state agree is appropriate
           because the parents might not have the

                                - 26 -
            financial resources to repay the educational
            costs which accumulate during the litigation.
            This is directly contrary to the purpose of
            IDEA.

(Emphasis added.)

     Obviously, because a merits-decision lies in the future, we do

not now address whether, should the State defendants prevail, the

Department can recover some, if not all, of the stay-put costs.

See Susquenita, 96 F.3d at 87 n.10.                Restated, this issue is

premature. Should it be presented to our court following a merits-

decision, it will be subject to review then.

                                        D.

     Next, the State defendants claim that, as interpreted by the

district    court,   IDEA     unconstitutionally       creates    an   unfunded

liability exceeding federal authority, in violation of the Tenth

and Eleventh Amendments.         They concede, however, that the existing

record     is    inadequate       for    determining      such     significant

constitutional     issues   as    the   scope   of   federal     authority   for

imposing absolute and unfunded liability on the States, whether the

States     are   being   forced    to    provide     services    beyond   their

competence, and the legitimacy of federal regulation of state

education resulting in federal redirection of state budgeting

decisions.

     Because the State defendants have not had a fair opportunity

to develop the record on these issues, we do not address them.




                                    - 27 -
                                E.

     For the appeal from the stay-put order, the final issue raised

is whether the Slocums’ unilateral placement of Daniel Slocum at

Heartspring violated IDEA and constitutes a waiver of their right

to seek payment of stay-put costs.       This issue is not properly

before us on interlocutory appeal.       The Slocums enrolled Daniel

Slocum at Heartspring on 4 April 1996.    The stay-put order at issue

deals only with the time period commencing a year later, on 3 April

1997, when the State Level Review Panel ruled in favor of the

Slocums.     The district court expressly noted that it was not

determining whether the Slocums were in compliance with IDEA before

that date, 3 April 1997.

     The State defendants assert further that the Slocums cannot

expect the State to pay for the costs of Heartspring, because there

has never been a determination that the State defendants do not

have an appropriate program or facility to meet Daniel Slocum’s

needs.     Again, such a determination goes to the merits of the

appropriateness of Daniel Slocum’s IEP, and is, therefore, not

properly before us.   We note, however, that the State defendants

acknowledged in their post-argument brief in our court that “there

is no state operated facility specifically designated for children

with autism” and “[t]here also is no specific interagency agreement

whereby a state educational agency provides educational services to

children with autism”.




                              - 28 -
  F.




- 29 -
     In their second interlocutory appeal (State management of an

IEP), the State defendants raise two issues.                 The first claim is

that IDEA limits the duration of the stay-put determination to

three   specific       proceedings:        due    process       hearings;      state

administrative     review     proceedings;        and,    for      reviewing     such

decisions, civil actions brought in state or federal court.                       20

U.S.C. § 1415(b), (c), and (e).           Under IDEA, according to the State

defendants, the term “civil action” does not include appeals to

circuit courts of appeals.          Therefore, the State defendants assert

that interim placement or “stay-put” judgments entered pursuant to

20 U.S.C. § 1415(e)(3) by a district court dissolve once such a

judgment is appealed.          (Of course, it is the State that is

appealing.)

     In support of that contention, the State defendants rely on

Kari H. v. Franklin Special School Dist., 125 F.3d 855 (table),

1997 WL 468326 (6th Cir. 1997) (unpublished).                At issue in Kari H.

was whether the stay-put provision continued to apply after the

district court had ruled on the merits and after the parents had

appealed that decision.         For starters, pursuant to the Sixth

Circuit’s     Rules,     citation    to    such    unpublished       opinions     is

disfavored.      In any event, in contrast to that case, we are

reviewing a stay-put order prior to trial on the merits.

     Restated,     the    district    court      has   not   yet    ruled   on   the

appropriate placement for Daniel Slocum.               We note, also, that this

contention is inconsistent with our court’s (and the Supreme




                                      - 30 -
Court’s) denial of the State defendants’ motion to stay the stay-

put order pending appeal.

      Whether the stay-put order remains in effect pending an appeal

of a merits-decision is not properly before us.        At issue can only

be whether an interlocutory appeal of that stay-put order dissolves

it.   Needless to say, it does not.       Otherwise, a party unhappy with

the stay-put ruling, in this instance the State defendants, could

simply seek to frustrate the purpose for stay-put orders by taking

interlocutory appeals.

                                     G.

      The second, and last, issue raised by the second interlocutory

appeal   concerns   the   district   court    characterizing   the   State

defendants’ right to conduct an IEP meeting as a discovery issue

for the merits proceeding.      They contend that the ruling, which

bars them from any meaningful participation in the IEP process

until resolution of the merits, is highly prejudicial because it

prohibits    the    State   defendants,       non-parties   during     the

administrative process, from having any access or involvement in

any IEP or placement decisions, despite the fact that the entire

stay-put financial burden is being borne by the Department.

      The State defendants assert that IDEA grants them authority to

convene and manage the IEP, and, if necessary, to initiate a

reevaluation of Daniel Slocum.            They maintain that a dramatic

improvement in his condition warrants such a reevaluation; that §§

1401(20) and 1414(a)(5) provide that the IEP process involves

continuous procedures that are not fixed as of any date, and


                                - 31 -
contemplate the need for periodic review and assessment of a

child’s progress; and that, because the Department is paying for

the Heartspring educational services, it should supplant the local

educational agency with respect to the performance of IEP-related

functions.

     The State also relies on regulations promulgated by the United

States Department of Education, which provide:

             After a child with a disability enters a
             private school or facility, any meetings to
             review and revise the child’s IEP may be
             initiated and conducted by the private school
             or facility at the discretion of the public
             agency.

34 C.F.R. § 300.348(b)(1).

     The Slocums respond that the State defendants are not entitled

to such relief because (1) Daniel Slocum is current on his IEP and

there   is   no   need    for    an   evaluation;    (2)   the   fact    that   the

Department is responsible for costs during the stay-put period does

not support the type of assessment sought by the State defendants;

and (3) there is no legal support for such an evaluation.                       They

contend further that the stay-put injunction protects Daniel Slocum

from unwarranted assessment by the State defendants, and that, to

permit them to convene an IEP conference would void the entire

stay-put concept.

     The Act and the regulations require that IEPs be reviewed at

least   annually,        20     U.S.C.    §   1401(20);    and    that    regular

reevaluations be conducted every three years, or more frequently

when conditions warrant, or when a parent or teacher requests such

reevaluation.      34 C.F.R. § 300.534.             Daniel Slocum’s last St.

                                         - 32 -
Tammany IEP was developed on 3 April 1996.                     According to the

Slocums, another IEP was developed in May 1996 at Heartspring, and

the most recent IEP was developed in May 1997 at Heartspring, with

the School Board’s participation.             The Slocums assert that Daniel

Slocum was last reevaluated in April 1996, and is not due for

another reevaluation until April 1999.

     In the words of the district court, it was “not persuaded that

IDEA permits the relief the defendants seek”.              For the two reasons

given below, we do not decide whether the district court may grant

such relief, either pursuant to the authority cited by the State

defendants, or to § 1415(e)(2), which, as stated, grants the

district court “broad discretion” to “grant such relief as [it]

determines is appropriate”.           20 U.S.C. § 1415(e)(2); Burlington,

471 U.S. at 369.

     First,      a    review   and,   if   necessary,    revision,        of    Daniel

Slocum’s IEP is to take place in May 1998; the parties have agreed

that the School Board and the State defendants will be allowed to

participate in this process. 34 C.F.R. § 300.344 (1997).                       Second,

the parties apparently have commenced discovery in anticipation of

the 15 June trial.         It is, therefore, likely that, during such

discovery,    the      State     defendants    can    discover      much       of   the

information they seek.

                                       III.

     For   the       foregoing   reasons,     and    subject   to   the    concerns

expressed in this opinion, the orders appealed from are AFFIRMED,




                                      - 33 -
and   the   case   is   REMANDED   to   the   district   court   for   further

proceedings consistent with this opinion.

                                                    AFFIRMED and REMANDED



ENDRECORD




                                    - 34 -
KING, Circuit Judge, specially concurring:



     I concur in the judgment and in the opinion, except for Parts

II.B and II.C, which contain dicta implying that the Louisiana

Department of Education may be entitled to recoup from the Slocums

all or part of the expenses that it incurred in paying for the

Heartspring placement during the stay-put period.             Resolution of

these interlocutory appeals does not require us to address the

issue   of   whether   and   under    what    circumstances   the   IDEA   may

authorize the Department’s recoupment of costs incurred during the

stay-put period.




                                     - 35 -
