Pardini v. Allegheny Intermediate Unit

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Precedential or Non-Precedential: Precedential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, 280 F.Supp.2d 447, 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.” Pardini, 280 F. Supp. 2d at 453.

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, 230 F. Supp. 2d. 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,” id., the Pardinis 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, 374 F.3d 221, 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.” Pardini, 280 F. Supp. 2d at 454.

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, 280 F.

6

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. Id. Accordingly, the 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., 918 F.2d 618, 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., 202 F.3d 642, 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., 202 F.3d 642, 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. Id.

Congress realized 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, 287 F.3d 1176 (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.’” Id., at 1179.

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].” Id. The District 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. Id. Based upon that analysis, the court

denied the request for injunctive relief, and the Court of Appeals

affirmed citing Thomas v. Cincinnati Bd. of Educ., 918 F.2d

618, 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’

purposes.” 287 F.3d. at 1180, 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 program.’” 280 F. Supp. 3d at 456.

(quoting Johnson, 287 F.3d at 1181). 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

necessary.” 289 F. Supp. 2d at 452. However, Congress has

already balanced the competing harms as well as the competing

equities. In Drinker v. Colonial School Dist., 78 F.3d. 859, 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’ order.” 287

F.3d at 1182 (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.” Id. Here, of 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 Drinker, supra, or

our the Supreme Court’s decision in Honig v. Doe, 484 U.S.

305 (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.” Id., at 323 (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. Id., at 313. 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.” Id., at 315. 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.” Id., at 323 (emphasis in

17

original).10 The Court thus concluded that the stay-put provision

“means what it says.” Id., at 324.

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 rule. 78 F.3d at 864. 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 agency.” 280 F. Supp. 2d at 454. 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.” Honig, 484 U.S. at 598

(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.” Id., 312-

3.

18

. . . due process [procedure is invoked]. To cut

off public funds would amount to a unilateral

change in placement, prohibited by the Act.

Id. (brackets in original) (quoting Zvi D. v Ambach, 694 F.2d

904, 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., 918

F.2d 618, 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

Thomas 918 F.2d at 625-26.

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, 5 F.3d. 39, 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., 202 F.3d 642, 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, 896 F.2d 808, 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, 101 F.3d

888, 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.” 918 F.2d 618 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 . . . .” id., at 892, 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

AIU. 280 F. Supp. 2d at 454. 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, 67 F.3d 484,

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,

916 F.2d 865, 869 (3d. Cir. 1990) (citations omitted).

24