Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2005

Pardini v. Alghny Intermediate
Precedential or Non-Precedential: Precedential

Docket No. 03-2897




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                                             PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT

                        No: 03-2897/3988

             DAVID AND JENNIFER PARDINI, on
               behalf of themselves and on behalf of
             their minor child, GEORGIA PARDINI,

                                Appellants



                                 v.

            ALLEGHENY INTERMEDIATE UNIT;
          BARBARA MINZENBERG, Program Director

          On Appeal from the United States District Court
             for the Western District of Pennsylvania
                    D.C. Civil No. 03-cv-00725
                 District Judge: Arthur J. Schwab

                   Argued: November 12, 2004

 Before: McKee, Chertoff 1 , Circuit Judges and Buckwalter2 ,
                  Senior District Judge


  1
   Judge Chertoff heard oral argument in this case but resigned
before the time the opinion was filed. The opinion is filed by a
quorum of the panel. 28 U.S.C. § 46(d).
      2
     Honorable Ronald L. Buckwalter, United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation
                  (Filed August 29, 2005)

                         OPINION

David D. Pardini (Argued)
3256 Waltham Avenue
Pittsburgh, PA 15216

      Attorney for Appellants

William C. Andrews, Esq. (Argued)
Christina Lane, Esq.
Andrews & Price
1500 Ardmore Boulevard
Suite 506
Pittsburgh, PA 15221

      Attorneys for Appellees

Janet F. Stotland, Esq. (Argued)
Education Law Center
1315 Walnut Street
Suite 400
Philadelphia, PA 19107

      Attorney for Amicus-Appellant

Linda F. Thome, Esq.
Unites States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

      Attorney for Amicus-Appellee

McKee, Circuit Judge.


                                2
       David and Jennifer Pardini brought this action on behalf
of their minor daughter, “Georgia.” They are appealing the
District Court’s ruling that she was not entitled to continue to
receive certain educational/developmental services pursuant to
the “stay-put” provision of the Individuals with Disabilities in
Education Act, until the dispute over those services is resolved.
For the reasons that follow, we will reverse.

                    I. Factual Background

       Georgia Pardini was born on April 18, 2000. She has
cerebral palsy, a condition that affects muscular coordination
and body movement. Sometime after her first birthday, Georgia
began receiving services from the Alliance for Infants and
Toddlers (“AIT”) in the form of an Individualized Family
Service Plan (“IFSP”) pursuant to the Individuals With
Disabilities in Education Act, 20 U.S.C. §§ 1400-85, (“IDEA”
or the “Act”). Shortly before Georgia’s third birthday, as she
was about to transition out of her IFSP, a dispute arose about
whether the Individualized Education Program (“IEP”) being
developed for her by the Allegheny Intermediate Unit (“AIU”)
should include the conductive education Georgia had been
receiving as part of her IFSP.3

        The AIU had evaluated Georgia as part of the normal
transition from an IFSP to an IEP that is mandated by the IDEA
when a child turns three. The District Court found that the
Pardinis received the evaluation on March 15,2003 along with
instructions telling them to “Read the report, sign the original,
and return in the enclosed envelope within 5 days [and] [i]f you
disagree with any part of the report, write a statement on a
separate piece of paper that describes the items with which you

     3
       Conductive education is an educational approach for
children with central nervous system disabilities. It is a holistic
approach to help develop problem-solving skills.
                                3
disagree.”

        The Pardinis and agents of AIU met on March 24, 2003,
but the Pardinis refused to sign the IEP because it did not
provide for the conductive education Georgia had been
receiving under the IFSP. Rather than sign, the Pardinis
requested an independent evaluation and asked AIU to continue
all of the services Georgia had been receiving pending the
outcome of that evaluation. AIU responded by advising the
Pardinis that it would instead seek a due process hearing
pursuant to 20 U.S.C. §1415(f) “to prove the appropriateness of
their evaluation and thus, deny the public expense of the
independent evaluation.” Pardini v. Allegheny Intermediate
Unit, 

, 450. (W.D. Pa. 2003). The Pardinis
reiterated their request that conductive education continue as
Georgia’s “current educational placement” in a letter dated
March 25, 2003.       Although AIU subsequently sent the
Pardinis at least two letters, one of which was dated March 31,
2003, and the other of which was dated April 15, 2003, a second
IEP meeting scheduled for April 17 was postponed because the
Pardinis did not receive adequate notice. When the Pardinis
thereafter demanded a written explanation of the services that
would be discontinued on Georgia’s third birthday, AIU
responded by asserting its intent to request a due process
hearing. AIU also informed the family that it would not continue
the conductive education during the due process proceedings
and that feature of her IFSP would be discontinued as of
Georgia’s third birthday.

       At the May 1, 2003 IEP meeting, AIU presented a Notice
of Recommended Educational Placement (“NOREP”) that
included only those services it deemed appropriate; it did not
include conductive education. The Pardinis signed noting their
objection to the absence of conductive education. The District
Court summarized that meeting and AIU’s refusal to
subsequently provide Georgia with any services as follows:
“Plaintiffs attended [the] . . . meeting . . . under protest . . .. AIU

                                  4
refused to offer Plaintiffs a NOREP that included all of the IFSP
related services and Plaintiffs signed their objection to AIU's
NOREP as such. Nevertheless, the AIU has not restarted
Georgia's IDEA services.” 

.

       The AIU and the Pardinis could not agree upon Georgia’s
IEP, and the Pardinis refused to sign a NOREP that did not
include conductive education. The AIU took the position that
it could not provide any services under the circumstances, and
it terminated all of Georgia’s services four days after her third
birthday. The Pardinis responded in a letter to AIU in which
they objected to AIU’s actions and demanded that Georgia’s
services be reinstated pursuant to the “stay-put” requirement of
20 U.S.C. § 1415(j). The AIU maintained that § 1415(j) did not
apply because Georgia was transitioning from an IFSP to an
IEP. “The Pardinis reasonably believe[d] that conductive
education, . . . has proven . . . effective and . . . beneficial to
Georgia. [] AIU . . . refused to even consider the appropriateness
and effectiveness of conductive education . . . as part of its
proposed IEP, prior to presenting that IEP to the parents.”
Pardini, 

. at 454.

       While the due process hearings were proceeding to
determine whether “a meaningful and appropriate IEP should
include . . . conductive education . . . or whether the alternatives
offered by AIU [were] adequate to insure [Georgia’s]
meaningful progress,” 

filed the instant action in
the District Court.4 The Hearing Officer did not specifically

    4
     At oral argument, the parties informed the court that the
Pardinis eventually agreed to an IEP that did not include
conductive education. However, since we conclude that Georgia
was entitled to receive conductive education as a part of
Georgia’s IEP until the dispute was resolved, they are entitled to
reimbursement of the out-of-pocket expense resulting from the
AIU’s failure to comply with 20 U.S.C. § 1415(j) as well as
                                 5
address the application of the stay-put rule. Rather, he relied
upon the District Court’s conclusion that “Georgia’s IFSP is not
pendent,” because she had reached her third birthday, and
proceeded to address the issue of “whether the parents should
receive an [Independent Educational Evaluation] at public
expense.” App. 656. Thereafter, the District Court entered a
final order ruling that § 1415(j) did not require the IEP to offer
conductive education during the pendency of the administrative
hearings.5 This appeal followed.

         Meanwhile, the state conducted due process hearings on


reasonable attorneys’ fees.
        We do not think that Mr. Pardini is precluded from
recovering reasonable attorneys’ fees otherwise provided for
under the IDEA merely because he is seeking reimbursement for
his own expenses while representing his daughter. In Zucker v.
Westinghouse, 

, 227 (3d. Cir. 2004) we recognized
that, absent an expression of congressional intent to the contrary,
a plaintiff’s entitlement to attorneys’ fees is not eliminated
merely because he/she was pro se counsel. Although we were
there discussing the right of a pro se plaintiff in a shareholder’s
derivative action, that conclusion is not limited to that specific
type of action. Since Mr. Pardini requested “such other relief as
the Court deems fitting and proper,” in his complaint, he is
entitled to recover reasonable attorneys’ fees to the extent that
he is the prevailing party.
     5
        The District Court noted the ongoing administrative
proceedings but concluded “in light of the somewhat
inexplicable communication problems and institutional
stubbornness exhibited by AIU . . . that the Pardinis face a
bewildering bureaucratic nightmare [that] must be particularly
daunting to young parents who are financially strapped and
emotionally pressed to provide for the special . . . needs of their
child.” 

.
                                6
June 10 and June 12, 2003 to determine if AIU was obligated to
continue providing the services Georgia had received as part of
her IFSP pending the resolution of the disputed IEP, as well as
whether the proposed IEP was appropriate. Ultimately, the
Dispute Resolution Hearing Officer ruled that AIU was not
obligated to continue all of Georgia’s services under the IFSP.
 The hearing was then continued to determine whether the
Paridnis should receive an independent evaluation.

       On August 29, 2003, after conducting a trial, the District
Court issued a second opinion in which the court ruled that the
Pardinis were not entitled to any relief. The court reasoned that
the stay-put provision of the IDEA did not require AIU to
provide the identical educational program that AIT had been
providing under Georgia’s IFSP because the AIT was a different
program with a different funding stream. The court also
concluded that the respective agency, not the parents, had the
ultimate responsibility for deciding upon an appropriate
educational program for Georgia. This appeal followed.6

                         II. Discussion

       The District Court concluded that the stay-put rule of §
1415(j) does not apply to a child who has reached her third
birthday and is therefore transitioning from an IFSP to an IEP.
The court explained, “[a]n IFSP is a medical model, . . .
[whereas] [a]n IEP is an educational model. Pardini, 

     Since the termination of Georgia’s services, the Pardinis
have paid for two sessions of conductive education services.
They have also paid for Georgia to receive services at the
Euromed Rehabilitation Center in Mielno, Poland, as well as
services through United Cerebral Palsy/North Coast Ohio
Conductive Education of Cleveland, and the Ronald McDonald
House of Cleveland.


                               7
Supp. 2d at 454. The court reasoned that, since Georgia was
embarking upon her first IEP and a public education, the
“applicable stay-put placement . . . is the proposed public school
placement and program” contained in the IEP that did not
include conductive education. 

court
reasoned that the AIU was not obligated to provide for
conductive education pending the outcome of the due process
hearings.

       In order to properly resolve this dispute, we must
examine the IDEA to determine if Congress intended that
disputed features of an IFSP be provided under an IEP that is
offered upon a child reaching the age of three and transitioning
from one part of the Act to another.

                  A. Statutory Background.

        In enacting the IDEA, Congress originally only provided
for children with disabilities who were between the ages 5 and
21. However, in 1986, Congress amended the ACT to extend to
disabled children who were between three and five years of age.
Accordingly, 20 U.S.C. § 1412 declares that a state is only
eligible for financial assistance when “a free appropriate public
education is available to all children with disabilities residing in
the State between the ages of 3 and 21 . . ..”

       The program providing services to children beyond their
third birthday (“school-aged children”) is referred to as “Part
B,” and the program providing services to children between the
ages of three and five is known as the “Part B Preschool
Program.” Part B defines a “free appropriate public education”
as:

   [S]pecial education and related services that:

       a.      have been provided at public
               expense, under public supervision

                                 8
              and direction, and without charge;
       b.     meet the standards of the State
              educational agency;
       c.     include an appropriate preschool,
              elementary, or secondary school
              education in the State involved; and
       d.     are provided in conformity with the
              individualized education program
              . . .”

20 U.S.C. § 1401(8).

    The IEP is a written statement prepared as the result of
consultation among a representative of the local educational
agency, the teacher, and the parents, which must contain,”
statements of: present levels and performance, annual goals and
objectives, “specific educational services to be provided[] . . .,
the extent to which such child will be able to participate in
regular educational programs, [] the projected date for initiation
and anticipated duration of such services, and . . . appropriate
evaluation procedures and schedules for determining, . . .
whether instructional objectives are being achieved.7




   7
     Under the IDEA, parents of “disabled” children have the
right to examine relevant records pertaining to the child. They
are also meaningful participants in the evaluative process and
they have a right to an independent educational evaluation of the
child if they disagree with the services the school or educational
agency offers. Parents are also entitled to advance notice
whenever the school or agency refuses to initiate or change the
identification, evaluation or educational placement of the child.
20 U.S.C. § 1415(b).


                                9
Thomas v. Cincinnati Bd. of Educ., 

, 621 (6th
Cir.1990). 20 U.S.C. § 1401(19).8

       The issue before us involves the Act’s provisions for the
child during the pendency of disputes involving the child’s
program or placement. At the outset, we referred to 20 U.S.C.
§ 1415(j) which provides in pertinent part as follows:

         D]uring the pendency of any proceedings
         conducted pursuant to this section, unless the
         State or local educational agency and the parents
         . . . otherwise agree, the child shall remain in the
         then-current educational placement of such child,
         or, if applying for initial admission to a public
         school, shall, with the consent of the parents . . .
         be placed in the public school program until all
         such proceedings have been completed.


This “stay-put provision dates back to 1975, when it was
enacted as § 615(e)(3) of the IDEA's predecessor statute, the
Education for All Handicapped Children Act. Michael C. v.
Radnor, Township School Dist., 

, 652, n9 (3rd.
Cir. 2000).

       In 1986, Congress amended the IDEA by adding the
“Part C” Program to serve children from birth to age three. 20
U.S.C. § § 1431-1445. Part C requires states that receive funds
under the statute to provide “appropriate early intervention
services as set forth in an Individualized Family Service Plan
(“IFSP”). Section 1432(4) of the IDEA defines “early

     8
       Thomas involved the Education for all Handicapped
Children Act, Pub. L. No. 94-142, 1975 U.S.C.C.A.N. (89 Stat.)
773, 789, the predecessor to IDEA. See Michael C. v. Radnor,
Township School Dist., 

, 652 n. 9 (3rd. Cir. 2000).
                                 10
intervention services” as “developmental services” that “are
designed to meet the developmental needs of an infant or toddler
with a disability.” This involves the chid’s physical, cognitive,
communication, social or emotional, and/or adaptive
development. 

that it was important to allow for an
overlap of services rather than legislate a rigid and artificial
demarcation inconsistent with the reality of early development
because “[e]arly intervention research indicated that certain
types of services required by infants and toddlers with
disabilities are comparable to . . . services required by
preschoolers with disabilities that are included in their
individualized family service plans.” H.R. Rep. at 7.

        In enacting the amendments to the IDEA, Congress
stressed that the transition from Part C to Part B upon a child’s
third birthday was to be “a smooth transition.” See 20 U.S.C. §
1412(a)(9). Congress mandated that “[c]hildren participating in
early-intervention programs . . . under [Part C], and who will
participate in preschool programs [under Part B], experience a
smooth and effective transition to those preschool programs in
a manner consistent with section 1437(a)(8) of this title. By the
third birthday, . . . an individualized education program or, if
consistent with sections 1414(d)(2)(B) and 1436(d) . . . an
individualized family service plan, has been developed and
implemented. . .. The referenced section 1437(a)(8), sets forth
certain requirements that states applying for funds under the Act
must include in their application. Congress required that such
states include a “description of the policies and procedures [] to
ensure a smooth transition. Similarly, the referenced section
1414(d)(2)(B) specifically states that “an individualized family
service plan . . . may serve as the IEP” when appropriate.


       Moreover, Congress has clearly recognized that realities
dictate that there must often be significant overlap in services

                               11
provided under Part C and Part B. Thus, Part C funds can be
used from the child’s third birthday to the beginning of the
following school year. 20 U.S.C. § 1438(3). Conversely, a state
can use Part B funds to provide services to a child who is not yet
eligible for preschool early intervention services and therefore
would not ordinarily qualify for funding under Part B. In
addition, federal regulations explain that states shall comply
with the requirement of providing a free, appropriate pubic
education (“FRAPE”) by ensuring that an IEP or an IFSP is in
effect for the child beginning at age three. 34 C.F.R. §
300.121(c)(1)(ii). Therefore, we think it is clear that an IFSP
under Part C can serve as a child’s Preschool IEP under the Part
B if the agency and the parents both agree. 20 U.S.C. §§
1414(d)(2)(A) and (B), 34 C.F.R. § 300.342(c)(1).

        Thus, in Pennsylvania, the Early Intervention Services
System Act (“Act 212") mandates appropriate special education
programs for disabled children from birth to age five. 11 Pa.
Cons. Stat. Ann. § § 875-101 et. seq. (Purdon 2002). Under that
act, the Pennsylvania Department of Education is responsible for
providing services to disabled preschool children aged 3 to 5 as
well as school aged children. The Department of Public Welfare
is responsible for providing services to children from birth to
age three.

        The instant dispute over Georgia’s conductive education
is rooted in this administrative demarcation. The Department of
Public Welfare        recognizes conductive education. The
Pennsylvania Department of Education does not recognize it.

  B. The Application of the Stay-Put Rule to Georgia’s
Transition.


      The Pardinis claim that the congressional concern for a
smooth transition to preschool and services under Part B of the
IDEA can best be accomplished through a program that includes

                               12
conductive education. Moreover, since Georgia had been
receiving conductive education as part of her IFSP, they claim
that it was part of the “current educational placement.”
However, the AIU argues that Georgia’s IEP should not merely
mirror the services she was receiving under her IFSP because
the IDEA recognizes a developmental, and educational change
in focus when a child becomes three and begins preparing for
school. The AIU states: “Stay-put does not apply to the initiation
of services from Part C to Part B of the IDEA. The programs
operate under different agencies, different eligibility
requirements, and different purposes. To argue that they are the
same is preposterous.” Appellee’s Br. at 10.

       Of course, the issue here is not whether Part C and Part
B are the same; they clearly are not. Rather, the issue is whether
§ 1415(j) required the AIU to include conductive education as
part of Georgia’s initial IEP until the agency and the parents
could resolve their dispute over her IEP.          That is a very
different question.

        In resolving that inquiry against the Pardinis, the District
Court relied largely on Johnson v. Special Education Hearing
Office, 

(9th Cir. 2002). There, parents sought an
administrative hearing to challenge an IEP that provided for a
change in the vendor that had offered a particular service under
their son’s IEP. The services that were contemplated by the
education agency were identical to those that had been offered
under their son’s IFSP before his third birthday. The agency
claimed that the vendor could not continue to provide services
after a child’s third birthday, but the agency proposed offering
the same services with a different vendor.

       In the due process hearings that followed, the Hearing
Officer ordered continuation of the placement and services, but
concluded the school district “‘need not utilize the same vendors
who provided services under that IFSP.’” 

                                13
The parents responded by seeking an injunctive order in the
District Court requiring the Hearing Officer to “issue a new
‘stay put’ order [forcing the school district] to use the same
tutors, vendors, and supervisory services [as those in their son’s
IFSP].” 

Court analyzed the dispute using the
customary criteria for resolving claims for injunctive relief.
That included an analysis of irreparable harm, and the likelihood
of success on the merits. 

that analysis, the court
denied the request for injunctive relief, and the Court of Appeals
affirmed citing Thomas v. Cincinnati Bd. of Educ., 

, 625 (6th Cir. 1990).

        Here, the District Court concluded that since “Plaintiffs
are in the transition process applying for initial services under
Part B[],” [t]he applicable stay-put placement for a three-year
old child is the proposed public school placement and program.”
Pardini, 280 F. Supp. 2d at. 455. Quoting from Johnson, the
District Court also held, “[w]hen responsibility transfers from
one public agency to another, ‘the new agency is required only
to provide a program that is in conformity with the placement in
the last agreed upon IEP or IFSP. The new agency need not . .
. provide the exact same educational program..’” (internal
citation omitted).

       We do not disagree with the reasoning in Johnson.
However, we believe the District Court misapplied that decision.
The parties in Johnson stipulated that the child’s IFSP
constituted “his current educational placement for ‘stay put’

, The parties were only disputing
whether the identical services had to be provided by the same
vendor who had provided them under the IFSP. Thus, to the
extent that it applies to our analysis at all, Johnson undermines
the District Court’s focus on the distinction between the
developmental needs of children who are less than three, and the
educational needs of children who are older than three. The
services offered under the IEP in Johnson were identical to
those that had been offered under the IFSP.

                               14
       The District Court cited Johnson in stating: “[w]hen
responsibility transfers from one public agency to another, . . .
‘the new agency need not, and probably could not, provide the
exact same educational 

.
(quoting 

). However, since Johnson
did not involve the child’s entitlement to disputed services
during the pendency of a dispute, the case is distinguishable
from the circumstances before us. It is important to remember
that Congress was concerned with the services and programs
offered to handicapped children, not with the vendors supplying
them. The District Court’s failure to recognize that distinction
undermines its reliance on Thompson.

       Moreover, the District Court’s error was compounded (or
perhaps facilitated) by its reliance upon an analysis more
appropriately utilized for ruling upon preliminary injunctions
than enforcing the Act’s stay-put rule. The court reasoned “that
Plaintiffs would not be irreparably harmed by refusal to grant
the injunction, and that the public interest would be served by
permitting the . . . proceedings to continue, which would
develop a full and meaningful record if further review became

. However, Congress has
already balanced the competing harms as well as the competing
equities. In Drinker v. Colonial School Dist., 

, 864
(3d Cir. 1996), we explained that the Act “substitutes an
absolute rule in favor of the status quo for the court’s
discretionary consideration of the factors of irreparable harm
and either a likelihood of success on the merits or a . . . balance
of hardships.”

       Although, as we have noted, the court in Johnson also
engaged in a traditional preliminary injunction analysis, that
analysis did not involve the stay-put rule. Rather, the Hearing
Officer in Johnson had already entered a “stay-put order” under
the Act and the parents were asking a court to enjoin that order,
not the proposed IEP. The court explained: “Here, the Hearing
Officer’s ‘stay-put’ order preserves the tutors, goals, and plan .

                                15
. . it only changes the plan supervisors. . . . Thus, the ‘stay put’
order correctly determined [the child’s] ‘then current
educational placement’ and [the plaintiffs have] very little
likelihood of success in challenging the ‘stay put’ 

(internal quotes in original). Moreover, “because
the [agency] offered comparable placement [to the child] no
irreparable harm would befall [him] by denying the preliminary
injunction.” 

course, there is no “stay-put order” in
place and the Pardinis are arguing that the program the AIU is
proposing is not comparable to the program Georgia had been
receiving under the IFSP. Therefore, Johnson does not support
the District Court’s holding. Moreover, we cannot reconcile the
District Court’s analysis with our decision in 

, or
our the Supreme Court’s decision in Honig v. Doe, 

(1988).

        In Honig, the Supreme Court rejected school authorities’
claim that, under the circumstances there, proposed changes to
a child’s educational placement must remain in effect until the
propriety of the placement was ultimately determined. The
Court observed, “[t]he language of § 1415(e)(3)9 is unequivocal.
It states plainly that during the pendency of any proceedings
under the Act, unless the state or local educational agency and
the parents agree . . . , ‘the child shall remain in the then current
educational placement.” 

(emphasis in original). The
facts in Honig dramatically underscore the impact and
importance of the Court’s ruling.

       Honig involved two students whose individual cases were
consolidated. Both students had engaged in disability-related
misconduct. One student had forcefully choked a classmate and
then kicked out a school window while being escorted to the
principal’s office. 

In both cases, the parents filed

    9
     20 U.S.C. § 1415(e)(3) is the forerunner to 20 U.S.C. §
1415(f), and the two provisions are identical.
                                16
suit under the predecessor of the IDEA in an effort to enjoin the
school district from expelling their children until appropriate
placements and IEPs were agreed upon. Except for the district’s
authority to impose a very brief suspension, the District Court
enjoined the school district from unilaterally acting against “any
disabled child for disability-related misconduct, or from
effecting any other change in the educational placement . . .
without parental consent pending completion of [due process]
proceedings.” 

The Court of Appeals affirmed but
modified the District Court’s order to allow for fixed
suspensions of up to 30 school days. The court reasoned that the
school district retained the authority to take such limited action
under the stay-put rule and certain provisions of the state’s
Education Code.

        On appeal, the school district asked the Supreme Court
to read a “‘dangerousness’ exception into the stay-put
provision[.]” The Court refused. The Court did not accept the
school’s argument that Congress obviously intended for schools
to retain “residual authority to . . . exclude dangerous students
from the classroom[.]” Id, at 323. The Court did not think it
obvious that Congress intended schools or educational agencies
to have any such power. Rather, the Court thought it “clear[] .
. . that Congress very much intended to strip schools of the
unilateral authority they had traditionally employed to exclude
disabled students, . . . from school.” 

(emphasis in




                               17
original).10 The Court thus concluded that the stay-put provision
“means what it says.” 

       Nor are we convinced by AIU’s claim that, since this was
Georgia’s initial IEP, it constituted the “current educational
placement” for purposes of the stay-put rule. In Drinker, we
stressed the importance of maintaining the status quo when
identifying “the then current educational placement” for
purposes of the stay-put 

. We stated:

        [I]mplicit in the maintenance of the status quo is
        the requirement that a school district continue to
        finance an educational placement made by the
        agency and consented to by the parent before the

   10
      Given this clear statutory authority, the District Court’s
belief in the primacy of the educational agency is somewhat
puzzling. The court stated: “[t]he responsibility for choosing
the educational method most suitable to the child’s needs is left
to the educational 

. To the
extent that this suggests a marginalized or diminished role for
the parents, the court’s assessment of the respective roles is
erroneous. It is clear that the parents are not to be excluded
from the decision, and the “responsibility” for the decision does
not solely rest with the educators or an educational agency.
Rather, “Congress repeatedly emphasized throughout the Act the
importance and indeed the necessity of parental participation in
both the development of the IEP and any subsequent
assessments of its effectiveness.” 

(emphasis added). Although the Court was there referring to an
IEP, parental involvement in an IFSP is no less important under
the Act. “[T]he Act establishes various . . . safeguards that
guarantee parents both an opportunity for meaningful input into
all decisions affecting their child’s education and the right to
seek review of any decisions they think inappropriate.” 

                               18
       . . . due process [procedure is invoked]. To cut
       off public funds would amount to a unilateral
       change in placement, prohibited by the Act.

original) (quoting Zvi D. v Ambach, 

, 906 (.2d. Cir. 1982).

       We are also not persuaded by AIU’s claim that the
demarcation between Part C and Part B of the IDEA, and the
administrative and fiscal division of the providers of services
offered under those respective programs, counsels against
viewing the IFSP as the “current educational placement” under
the circumstances of this dispute. This distinction simply can
not negate the explicit language of the stay-put provision,
Congress’s concern for the child’s “smooth transition,” the
Supreme Court’s analysis in Honig or our decision in Drinker.
Rather, we think it clear that “[t]he [stay-put] provision
represents Congress’ policy choice that all handicapped
children, regardless of whether their case is meritorious or not,
are to remain in their current educational placement until the
dispute with regard to their placement is ultimately resolved.”
Drinker, at 865.

      Our conclusion is not altered by the fact that Part C
programs are deemed “developmental” and part B programs are
deemed “educational.” As we explained in Drinker:

       Because the [current educational placement]
       connotes preservation of the status quo, it refers
       to the operative placement actually functioning at
       the time the dispute first arises. If an IEP has been
       implemented, then that program's placement will
       be the one subject to the stay put provision. And
       where ... the dispute arises before any IEP has
       been implemented, the current educational
       placement will be the operative placement under


                                19
       which the child is actually receiving instruction at
       the time the dispute arises.

Drinker, at 867 (quoting Thomas v. Cincinnati Bd. of Educ., 

, 625-26 (6th Cir.1990)) (internal quotation marks
omitted). Here, it is beyond dispute that Georgia was receiving
an IFSP that included conductive education when the dispute
arose. That was the “operative placement actually functioning
[when this dispute arose.” Georgia was therefore entitled to
continue to receive that service as a component of her IEP until
the dispute was resolved following her third birthday.

       Had Congress intended a prospective IEP to
       govern the Act's stay put provision, as opposed to
       an operational placement, it could have employed
       the term "individualized educational program"
       which it had already defined. Since it did not, the
       term "then current educational placement" must
       be accorded, its plain meaning. Because the term
       connotes preservation of the status quo, it refers
       to the operative placement actually functioning at
       the time the dispute first arises. . . .where, as here,
       the dispute arises before any IEP has been
       implemented, the "current educational placement"
       will be the operative placement under which the
       child is actually receiving instruction at the time
       the dispute arises

.

       In addition, 20 U.S.C. §1415(j) must be read in context
with the rest of the IDEA statute. It is a fundamental rule of
statutory construction that a statute’s provisions should be read
to be consistent with one another. United Steelworkers of
America v. North Star, 

, 43 (3d Cir., 1993). Instead of
noting the differences between the Part B and Part C programs,
we must remember that Congress sought to ensure continuity in

                                20
the education of each under the IDEA. Yet, the AIU’s attempt
to chisel distinct barriers between services provided under Parts
C and B based upon its theory of childhood development would
require us to ignore the programmatic and fiscal overlap
between Part C and Part B as well as the congressional mandate
of a smooth transition between the two. Congress stressed that
the amendments it added were “designed to promote a seamless
system of services for children with disabilities, aged birth to
five, inclusive.” H.R. Rep. No. 198, 102nd Cong., 1st Sess.
1991, WL 185659, at 7.

        Congress has clearly recognized that needs of disabled
children do not fit neatly into the age-defined stages suggested
by the AIU. Although Georgia was technically transitioning
within the administrative and fiscal structure of IDEA’s
statutory scheme, her needs did not magically change on her
third birthday. She still needed substantially the same services
she was receiving in the days preceding her birthday. Indeed, 20
U.S.C. § 1412(a)(9) describes the transition to the preschool
programs and notes that either an IEP or an IFSP may be used
and implemented for the child. The Act expressly states that an
IFSP may be used if it is “consistent with State policy,” and
“agreed to by the agency and the child’s parents.” Thus, the
IDEA both anticipates and condones the possible
interchangeability of an IFSP and IEP during transition to
preschool.

       Furthermore, even if we could accept the AIU’s theory of
“development” vs. “education,” we would still be convinced that
by the analysis in the cases we have discussed, that the
conductive education in Georgia’s IFSP was part of the status
quo that should have been maintained pending resolution of the
dispute over her IEP.




                               21
                OSEP’s Letter to Klebanoff11

       The District Court also relied upon on OSEP’s Letter to
Klebanoff. “[T]he level of deference to be accorded such
interpretive rules depends upon their persuasiveness.” Michael
C. V. The Radnor Township School Dist., 

, 649. In
evaluating persuasiveness we consider such factors as the
thoroughness, reasoning, and consistency with other agency
pronouncements.       Chester County Intermediate Unit v.
Pennsylvania Blue Shield, 

, 815 (3d. Cir. 19900).

       In Letter to Klebanoff, the OSEP answered an inquiry
regarding whether the stay-put provision mandated the
continuation of services a three-year old received in the Birth to
Three-Year old program when the parents did not agree to the
school’s proposed education program. OSEP responded to the
inquiry by stating it did not interpret 34 C.F.R. § 300.513 as
requiring a public agency responsible for providing FAPE . . . to
maintain [the] child in a program developed for a two-year old
child as a means of providing that child and . . . [h]er family
appropriate early intervention services under Part H.” 28 IDELR
478.12 However, the OSEP never explained how it reached that

  11
     “OSEP” refers to the Office of Special Education Programs
of the U.S. Department of Education.
  12
     “Part H of the IDEA requires states to provide ‘appropriate
early intervention services to all infants and toddlers with
disabilities and their families.’ The statute defines ‘infants and
toddlers with disabilities’ as ‘individuals from birth to age 2,
inclusive. Similarly, states must provide ‘a free appropriate
public education’ to disabled individuals between the ages of
three and twenty-one years old to be eligible to receive federal
funds under part B of the IDEA.” Still v. DeBuono, 

, 891 (2d. Cir. 1996) (citations omitted). Although Part H
and Part B “are distinct in notable respects, their basic structure
                                22
conclusion. Moreover, we find the discussion in Thomas v.
Cincinnati Bd. of Ed. much more helpful. We agree that the
plain meaning of “current educational placement” refers to the
“operative placement actually functioning at the time the dispute
first arises.” 

at 625-626 (6th Cir. 1990).

       In Thomas, an IEP was developed for a severely retarded
eleven year old child, but before the services were to begin,
doubts about funding caused the school to review the plan. The
Court of Appeals held that the IEP could not be the “current
educational placement” because it had never been implemented.
Likewise, here, the proposed IEP had not been implemented
when the dispute over whether it should contain conductive
education arose. Rather, Georgia’s operative placement
consisted of the services she was receiving under her IFSP.

                        III. Conclusion

       For the reasons set forth above, we hold that the stay-put
provision of the IDEA, 20 U.S.C. § 1415(j), required Georgia to
continue to receive conductive education until the dispute over
its appropriateness for inclusion in her IEP was resolved.
Accordingly, the Pardinis are entitled to the cost of the
conductive education that they purchased before the dispute was
resolved by their agreement to an IEP that did not contain it.
We will therefore reverse the decision of the District Court and
remand for the court to determine the amount of reimbursement
the Pardinis are entitled to as well as the amount of any
attorneys fees.13


and purpose are strikingly similar . . . .” 

Part B
establishes an IEP, and part H establishes an IFSP. .
    13
      The District Court reached the merits of the Pardinis’
complaint without requiring exhaustion of administrative
remedies under the IDEA because of the “bewildering
                               23
bureaucratic nightmare,” they had faced in dealing with the

. We assume that the court was
concluding that exhaustion would be futile and that failure to
exhaust was therefore excused. See W.B. v. Matula, 

,
495-96 (3d.Cir. 1995). On appeal, the AIU argues that the
reimbursement remedy the Pardinis are seeking “is an available
administrative remedy in an administrative proceeding,” and
urges us to deny relief because an administrative remedy is
available. Appellee’s Br. at 16.
   However, the issue here - the interpretation of § 1415(j) - is
a purely legal one. “Courts require exhaustion where the
peculiar expertise of an administrative hearing officer is
necessary to develop a factual record. . . . Where the factual
record is fully-developed and no evidentiary disputes remain, the
court can and should decide legal issues. Octavia P. v. Gilhool,

, 869 (3d. Cir. 1990) (citations omitted).


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