D.P. Ex Rel. E.P. v. School Board of Broward County

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 3, 2007

No. 05-15188

THOMAS K. KAHN

________________________

CLERK

D.C. Docket No. 04-60297 CV-KAM

D.P., o.b.o. E.P., D.P. and K.P.,

L.P., o.b.o. E.P., D.P. and K.P.,

Plaintiffs-Appellants,

versus

SCHOOL BOARD OF BROWARD COUNTY,

Defendant-Appellee.

________________________

No. 05-15193

________________________

D.C. Docket No. 04-61461 CV-KAM

L.M.P., on behalf of E.P., D.P. and K.P.,

Plaintiff-Appellant,

versus

THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA

Defendant-Appellee.

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(April 3, 2007)

Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.

COX, Circuit Judge:

We consider in these consolidated appeals whether the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400 et seq., (“IDEA”) requires a school

board to continue providing services to children who have reached three years of age

pursuant to Individualized Family Service Plans previously developed for those

children under Part C of the IDEA until such time as Individualized Educational

Plans are developed for the children under Part B of the IDEA. We conclude that it

does not. Therefore, we affirm the district court’s judgments of dismissal.

I. BACKGROUND & PROCEDURAL HISTORY

D.P., E.P., and K.P. are autistic triplets who live with their parents

(collectively, “Appellants”) in Broward County, Florida. Prior to their third birthday,

the triplets received individualized care under the Early Intervention Program

administered under Part C of the IDEA. The services provided the triplets under Part

C of the IDEA were provided pursuant to Individualized Family Service Plans

2

(“IFSPs”). Pursuant to IFSPs, disabled infants and toddlers may be provided with

developmental services such as speech, occupational, and physical therapy services;

medical services for diagnosis and evaluation purposes; and social work services.

20 U.S.C. § 1432(4)(E). While IFSPs may include an educational component, they

do not necessarily include such a component. Id.

On January 4, 2004, the triplets turned three and “aged out” of the Part C

program. At the same time, they became eligible for services under Part B of the

IDEA. Part B of the IDEA guarantees free appropriate public education (“FAPE”)

to disabled children older than three. Services provided under Part B of the IDEA are

generally provided pursuant to Individualized Educational Plans (“IEPs”) rather than

IFSPs. IEPs differ from IFSPs in that they are focused on the educational needs of

disabled children. 20 U.S.C. § 1414(d)(1)(A). However, at the time the triplets

turned three, no IEPs had been developed for them.

On January 6, 2004, the Appellants initiated an administrative action by filing

a due process complaint pursuant to the IDEA’s provisions. The due process

complaint alleged that the School Board of Broward County (“the Board”) was

contemplating modifying the services provided in the triplets’ last IFSPs and sought

an injunction requiring the Board to continue the services in the IFSPs. Appellants

purported to invoke the “stay put” provision in Part B of the IDEA, 20 U.S.C. §

3

1415(j). On January 9, 2004, an Administrative Law Judge (“ALJ”) held a telephone

conference with the parties to the administrative action during which the parties

agreed that no evidentiary hearings were necessary as the dispute presented only

questions of law that could be resolved on papers submitted by the parties. After the

matter had been fully briefed, the ALJ issued an order holding that the “stay put”

provision did not require the Board to provide services pursuant to the triplets’ last

IFSPs. The ALJ denied Appellants’ requests for injunctive relief, for reimbursement

of the costs Appellants had incurred in continuing the services previously provided

under the IFSPs, and for attorneys’ fees and costs. Appellants appealed the ALJ’s

order to the federal district court in a case styled D.P. and L.P., on behalf of E.P.,

D.P., and K.P. v. School Board of Broward County (“D.P. I”). The complaint in D.P.

I requested a declaration that the Board must continue the services provided to the

triplets pursuant to the IFSPs, an injunction requiring the Board to do so, and

reimbursement of the costs Appellants had incurred in continuing the services

previously provided under the IFSPs.

On August 17, 2004, while D.P. I was still pending in the district court,

Appellants filed another due process complaint alleging, among other things, that the

Board had failed to have IEPs in place for the triplets on their third birthday and that,

instead, the Board belatedly had developed temporary IEPs for the triplets. The

4

temporary IEPs proposed placement of the triplets in the Baudhuin Preschool for pre-

kindergarten children with autism. Appellants alleged that the temporary IEPs were

invalid by reason of the parents’ refusal to consent to them. This second

administrative action sought a declaration that the temporary IEPs were invalid and

an injunction requiring the Board to provide the triplets with services pursuant to

their last IFSPs until valid IEPs were in place. It also sought reimbursement from the

Board for the costs that the parents had incurred in continuing the services previously

provided under the IFSPs. Appellants requested that the ALJ first resolve (without

an evidentiary hearing) the legal issues of whether the temporary IEPs were invalid

and, if so, what remedy was due. After receiving briefing on those questions, the ALJ

determined that the temporary IEPs were invalid because the parents had never

consented to them. However, the ALJ also found that nothing in the IDEA or Florida

law obligated the Board, as a result of the parents’ refusal to consent to the temporary

IEPs, to provide the triplets with the Early Intervention Services they had been

receiving previously under Part C of the IDEA. The ALJ denied Appellants’ requests

for reimbursement. Finally, the ALJ ordered Appellants to file a statement indicating

whether, in light of the resolution of the threshold questions, Appellants believed

there to be any remaining unresolved issues in their action. Appellants filed no such

5

statement. Instead, they filed a complaint in the district court challenging the ALJ’s

decision.

The second district court case was styled L.M.P. on behalf of D.P., K.P., and

E.P. v. School Board of Broward County (“D.P. II”). In D.P. II, Appellants claimed

that the Board failed to provide the triplets with FAPE as required by the IDEA.

Appellants asked the district court to declare the temporary IEPs invalid, order the

Board to reimburse Appellants for the costs they had incurred in continuing the

services formerly provided under the IFSPs, order the Board to continue the services

provided under the IFSPs, and award Appellants attorneys’ fees and costs.

The Board moved to dismiss D.P. I and D.P. II, arguing in both cases that

Appellants’ claims failed as a matter of law because neither the IDEA nor any other

provision of law requires the Board to continue to provide services to the triplets

pursuant to their IFSPs until valid IEPs are in place.

On March 8, 2005, the district court granted the Board’s motion to dismiss the

complaint in D.P. I pursuant to Fed. R. Civ. P. 12(b)(6). On August 19, 2005, the

district court granted the Board’s motion to dismiss in D.P. II, also for failure to state

a claim upon which relief can be granted. Judgment was entered for the Board in

both cases. Appellants appealed both judgments to this court, and we consolidated

the cases on appeal.

6

II. CONTENTIONS OF THE PARTIES & ISSUES ON APPEAL

Appellants contend that the IDEA entitles the triplets to continued services

pursuant to their IFSPs until valid IEPs are put in place for them. Appellants further

contend that, because the parents did not consent to the temporary IEPs proposed by

the Board, there are no valid IEPs for the triplets. They argue that the district court

erred in refusing to issue an injunction requiring the Board to provide the services

previously provided under the IFSPs.

The Board contends that the IDEA imposes no duty to continue to provide

services under IFSPs to children who have reached age three. The Board also argues

that, according to the plain language of the IDEA’s “stay put” provision, because the

triplets have never enrolled in public school, the proper placement for them while an

IEP is not yet in place is the public school program.

III. STANDARD OF REVIEW

We review de novo the district court's grant of a motion to dismiss under Fed.

R. Civ. P. 12(b)(6) for failure to state a claim, accepting the factual allegations in the

complaint as true and construing them in the light most favorable to the plaintiff.

Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (citing Hill v.

White, 321 F.3d 1334, 1335 (11th Cir. 2003)). Dismissal is appropriate “when, on the

basis of a dispositive issue of law, no construction of the factual allegations will

7

support the cause of action.” Marshall County Bd. of Educ. v. Marshall County Gas

Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

IV. DISCUSSION

In the orders granting the motions to dismiss, the district court relied on the

plain language of the pendency, or “stay put,” provision of the IDEA to hold that the

statute does not require the Board to provide the services that had previously been

provided under the IFSPs. We have said, “‘In construing a statute we must begin, and

often should end as well, with the language of the statute itself.’ . . . Where the

language Congress chose to express its intent is clear and unambiguous, that is as far

as we go to ascertain its intent because we must presume that Congress said what it

meant and meant what it said.” United States v. Steele, 147 F.3d 1316, 1318 (11th

Cir. 1998) (quoting Merritt v. Dillard, 120 F.3d 1181, 1185 (11th Cir. 1997) (other

citations omitted).

The “stay put” provision, which governs during the course of all administrative

and judicial proceedings regarding a child’s proper placement under Part B of the

IDEA, says:

Maintenance of current educational placement

[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

8

child shall remain in the then-current educational

placement of the 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.

20 U.S.C. § 1415(j).

Appellants contend that, through use of the disjunctive “or,” the statutory

provision provides alternative placements for the triplets. According to Appellants,

while their due process requests were pending, the triplets could have been placed in

the public school program or they could have remained in their then-current

educational placement. Appellants cite a Third Circuit case, Pardini v. Allegheny

Intermediate Unit, 420 F.3d 181 (3d Cir. 2005), to support their contention that the

triplets “then-current educational placement” was the last IFSP from the Early

Intervention Program.

We find Appellants’ argument unpersuasive in light of the unambiguous

language of the statute. The disjunctive “or” does indeed provide alternatives; but,

contrary to Appellants’ contention, the alternatives separated by the “or” are mutually

exclusive. As the district court stated, if the educational agency (here, the Board) and

parents do not agree to a placement for the child, which of the other two alternatives

applies depends on one fact only – whether the child is applying for initial admission

to a public school. If the child is not applying for initial admission, he shall remain

9

in his existing educational placement. Or, if the child is applying for initial

admission, he shall be placed in the public school program. We reach this conclusion

based upon the placement of the disjunctive coordinating conjunction – between the

two alternatives, but before the imperative, “if applying for initial admission to a

public school [the student] shall . . . be placed in the public school program.”

In this case, Appellants do not contest the fact that the triplets have never been

admitted to a public school program. Therefore, the triplets are “applying for initial

admission to a public school.” And, in the absence of an agreement otherwise

between the Board and the triplets’ parents, the only placement available to the

triplets is the public school program. The district court properly held that the fact that

the parents withheld consent to placement in the program offered by the public school

(pursuant to the temporary IEPs) does not create another option for the triplets.

Without the parents’ consent, the triplets cannot be placed in the public school

program; but, they are not entitled to an alternative placement pursuant to the statute.

In other words, the IDEA does not entitle the triplets to continue receiving services

pursuant to their IFSPs until such time as valid IEPs are put in place for them.1

1

The dissent maintains that our holding requires the triplets to enter public school, without

any accommodation whatsoever and without any remedy. That conclusion is based upon neither the

facts of this case nor our legal analysis. The “public school placement” that the triplets were offered

by the school board is, in fact, enrollment at the Mailman Segal Institute’s Baudhuin Preschool,

located on the main campus of Nova Southeastern University. The Baudhuin Preschool is a private

school for pre-kindergarten-aged children with autism.

10

We acknowledge that our decision is at odds with the Third Circuit’s holding

in Pardini. We think that case was incorrectly decided. As stated above, we base our

conclusions on the plain language of the “stay put” provision. We do note, however,

that our interpretation of the statute is consistent with that of the Department of

Education. The implementing regulation in effect at the time Appellants filed their

due process requests stated:

If the [due process] complaint involves an application for

initial admission to public school, the child, with the

consent of the parents, must be placed in the public school

until the completion of all the proceedings.

34 C.F.R. § 300.514(b).2

The triplets’ parents rejected this placement, as is their right under the IDEA. Having done

so, they could have continued private services and challenged the school board’s plan in a due

process hearing and, if necessary, a subsequent lawsuit in which they attempted to prove that the

school board had denied the triplets FAPE. Had they been successful, the parents would have been

able to receive reimbursement from the school board for the costs of the private services that

replaced the FAPE their children were wrongly denied. See M.M. ex rel. C.M. v. Sch. Bd. of Miami-

Dade County, Fla., 437 F.3d 1085, 1098-99 (11th Cir. 2006).

However, while the triplets’ parents alleged in their due process requests that their children

had been denied FAPE, they chose not to present evidence supporting their FAPE allegations.

Therefore, no determination has ever been made as to whether the Board denied the triplets FAPE.

2

The regulation has since been revised. The same language now appears in 34 C.F.R. §

300.518(b) (effective Oct. 13, 2006). Subsection (c) of the revised regulation reads, in part:

If the complaint involves an application for initial services under this

part from a child who is transitioning from Part C of the Act to Part

B and is no longer eligible for Part C services because the child has

turned three, the public agency is not required to provide the Part C

services that the child had been receiving.

34 C.F.R. § 300.518(c).

11

Our interpretation is also consistent with other agency guidance on the proper

pendency placement for children transitioning from Part C to Part B of the IDEA.

That guidance, issued by the Office of Special Education Programs within the Office

of Special Education and Rehabilitative Services of the United States Department of

Education, is published in the Federal Register with the implementing regulations for

the statute. It states:

Comment: A few commenters requested that the regulation

be revised to make clear that the pendency provisions of §

300.514 apply to children transitioning from early

intervention services under Part C to preschool special

education and related services under Part B.

Discussion: The pendency provision at § 300.514(a) does

not apply when a child is transitioning from a program

developed under Part C to provide appropriate early

intervention services into a program developed under Part

B to provide FAPE. Under § 300.514(b), if the complaint

requesting due process involves the child’s initial

admission to public school, the public agency responsible

for providing FAPE to the child must place that child, with

the consent of the parent, into a public preschool program

if the public agency offers preschool services directly or

through contract or other arrangement to nondisabled

preschool-aged children until the completion of authorized

review proceedings.

Changes: None.

64 Fed. Reg. 12,406, 12,558 (Mar. 12, 1999).

12

Because we rely on the plain language of the “stay put” provision, we do not

engage in analysis to determine whether the agency’s interpretation of the statute is

reasonable and therefore entitled to deference. See Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781-82

(1984) (stating that, where the statute is clear, that is the “end of the matter”). We

simply note its consistency with our reading.

Appellants argue that they should have been granted an injunction pursuant to

the “stay put” provision or Fed. R. Civ. P. 65. But, we do not find any error in the

district court’s denial of the injunction. As stated above, the IDEA does not provide

for continued provision of services to the triplets pursuant to their IFSPs. And, for

that reason, Appellants did not (and cannot) carry their burden of demonstrating a

substantial likelihood of success on the merits of their claim. See Siegel v. LePore,

234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).3

The dissent claims that our holding is inconsistent with M.M. ex rel. C.M. v.

Sch. Bd. of Miami-Dade County, Fla., 437 F.3d 1085 (11th Cir. 2006). It is not.

3

The Board also moved to dismiss Appellants’ claims for reimbursement of expenses

incurred by continuing to provide the services previously provided under the IFSPs because the

Board had failed to provide the triplets with FAPE on the ground that Appellants had failed to

exhaust their administrative remedies as to those claims. The district court found that the

reimbursement requests were premature because the ALJ had not determined whether the triplets had

been denied FAPE. It is unclear whether Appellants seek review of the district court’s dismissal

without prejudice of these claims. We find no reversible error in the dismissals without prejudice.

13

M.M. does not hold (as the dissent states) that the plaintiffs in that case were eligible

for reimbursement because their child had received early intervention services. To

the contrary, our opinion in that case affirmed dismissal of the plaintiffs’ claim for

reimbursement because the complaint failed to state a claim that the child was denied

FAPE. See id. at 1103. And, though M.M. recognizes that reimbursement may be

available for services rendered after a child’s third birthday, that case does not hold

that a school board can be enjoined to continue providing services previously

rendered pursuant to an IFSP after a child’s third birthday or even that, in the case

where FAPE has been denied, all services previously rendered pursuant to an IFSP

are reimbursable. As stated above, whether the triplets were denied FAPE is not at

issue in this case.

The dissent characterizes the result that our holding produces as “absurd,”

using that word at least four times. We do not agree and take comfort in the fact that

the Department of Education interprets the “stay put” provision as we do.

V. CONCLUSION

For the foregoing reasons, we affirm the judgments for the Board.

AFFIRMED.

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BARKETT, Circuit Judge, dissenting:

I would agree with the majority’s application of the “stay put” provision’s plain

language—that the pendency placement for a child applying for initial admission to

public school is only the public school—if this case involved a situation for which

that part of the provision was intended; that is, for a school-aged, disabled child who

had never received services under the IDEA and was applying for initial admission

to public school. The triplets in this case, however, were receiving services under

later amendments to the IDEA, which were designed to promote the development of

children before they reach school age and assure their smooth transition into school

when they reach school age. Thus I believe the majority errs by finding as a matter

of law that the receipt of these services did not entitle the triplets to the continuation

of services pending resolution of their placement dispute.

Although we are generally to apply a statutory provision’s plain language, we

must read that language in context,1 and consider the statute’s overarching purpose

1

See In re International Admin. Serv., Inc., 408 F.3d 689, 708 n. 7 (11th Cir. 2005) (“It is

a fundamental canon of statutory construction that the words of a statute must be read in their context

and with a view to their place in the overall statutory scheme . . . . We must therefore interpret the

statute as a symmetrical and coherent regulatory scheme . . . and fit, if possible, all parts into an

harmonious whole.”) (citations and internal quotation marks omitted); United States v. Ballinger,

395 F.3d 1218, 1237 (11th Cir. 2005) (“[S]tatutory language must be read in the context of the

purpose it was intended to serve.”).

15

in order to avoid absurd results.2 Congress enacted “stay put” provisions under both

Part C and Part B of the IDEA—each of which, when read independently, prohibit

the disruption of services during a placement dispute. Moreover, Congress made clear

its intent that there be a smooth transition from one part of the statute to the other.

Thus, it would be absurd to apply the “stay put” provision in a manner that reaches

the completely opposite result: the withdrawal of existing services to a disabled child

when she reaches school age.3 Withdrawing necessary services at the moment of

transition eviscerates the procedural protections Congress afforded parents who

challenge a proposed change in services, disrupts the smooth transition Congress

expressly intended for children transitioning from one program to the other, and

2

See Broward Gardens Tenants Ass’n v. U.S. E.P.A., 311 F.3d 1066, 1075-76 (11th Cir.

2002) (plain meaning of statutory language does not control if it would lead to truly absurd results).

Although the majority takes issue with the use of the word “absurd” in this opinion, any reference

to “absurd result” herein is merely a statement and application of the relevant legal standard for

purposes of statutory interpretation.

3

In this case, the School Board refused to continue, or pay for the continuation of, the “early

intervention services” the triplets had been receiving when they turned 3 on January 4, 2004; that

is, right in the middle of the school year.

Although the majority is correct that in this case the School Board ultimately offered the

triplets placement at a private school for children with autism (in the form of a proposed “temporary”

IEP about a month after refusing to continue early intervention services), no such placement is

mandated by the majority’s reading of “stay put.” The only placement required under the majority’s

opinion is enrollment in the public schools. Moreover, there is no indication that the private school

placement the School Board belatedly offered the triplets in this case would have included the

particular one-on-one services which they had been receiving. Thus, this accommodation would not

have been the same as continuing those services already deemed to be necessary and appropriate for

these children. It is precisely the continuation of services pending a placement dispute that Congress

sought to protect by enacting “stay put.”

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punishes children whose disabilities have been detected and addressed early under

the statute, leaving them with no accommodation pending resolution of a placement

dispute. The IDEA cannot reasonably be read to permit this result. Therefore, I

respectfully dissent.

The “stay put” provision at issue was enacted in 1975, at a time when the

IDEA’s predecessor statute provided funding for special education and related

services only to school-age children and did not provide for early intervention

services to infants and toddlers. See Education for All Handicapped Children Act of

1975, S. 6, 94th Cong., 89 Stat. 773 (1975) (“EAHCA” or “the Act”).4 Because the

statute did not yet provide for early intervention services to disabled infants and

toddlers, its provisions were drafted with only school-age children in mind.5 The

“stay put” provision assured that, pending the resolution of a placement dispute, a

school-age child applying for initial admission to public school would be guaranteed

placement in the public school program (rather than be excluded on the basis of

4

In 1990, Congress changed the name of the law to the “Individuals with Disabilities

Education Act.” See Education of the Handicapped Act Amendments of 1990, S. 1824, 101st Cong.

§ 901(a), 104 Stat. 1103, 1141 (1990).

5

Specifically, the Act was designed to assure that a free and appropriate public education

(“FAPE”) was made available to handicapped children ages 6 and above, and provided incentives

for States also to offer a FAPE to preschoolers between the ages of 3 and 5. EAHCA § 612(2)(B).

17

disability),6 and that a child already in school with an educational placement under

the IDEA would be entitled to maintain that placement until the dispute was

resolved.7 The dual purposes of this procedural safeguard were clear: to guarantee

access to public school, on the one hand, and to maintain special educational services

where those were already being provided, on the other. The drafters of this provision

could not have intended, or even anticipated, that once Congress amended the statute

to also provide grants for early intervention services to disabled infants and toddlers,

this “stay put” provision would be construed against the interests of a disabled child

to result in the withdrawal of services pending the resolution of a placement dispute.

More than a decade later, in 1986, Congress enacted what we now know as Part

C of the IDEA to address the developmental disabilities of handicapped infants and

6

Indeed, Congress passed the legislation after finding that a million handicapped children

in the United States were “excluded entirely from the public school system . . . ” See EAHCA

§ 3(b)(4) (emphasis added); see also Honig v. Doe, 484 U.S. 305, 323 (1988) (finding that by

enacting the “stay put” provision, “Congress very much meant to strip schools of the unilateral

authority they had traditionally employed to exclude disabled students . . . from school.”).

7

The “stay put” provision under Part B provides that, unless the school and parents otherwise

agree,

the child shall remain in [his or her] then-current educational placement . . . 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.

20 U.S.C.§ 1415(j).

18

toddlers before those children reached school age (ages birth to 2, inclusive).8 See

Education of the Handicapped Act Amendments of 1986, S. 2294, 99th Cong., 100

Stat. 1145 § 101(a) (1986) (“1986 Amendments”). In passing this legislation,

Congress recognized that certain special education needs could be mitigated if

children’s developmental disabilities were addressed before they reached the age of

3. Congress thus developed a program to help states identify handicapped infants and

toddlers and provide “early intervention services” to those children and their families.

Id. at §§ 676, 677. Entities receiving federal funding for this purpose were to develop

“individualized family service plans” (“IFSPs”) that would identify each child’s

developmental needs and the particular services required to meet those needs. Id. at

§ 677(d).

Notably, as it had done more than ten years before with Part B, Congress

enacted a “stay put” provision for parents who disputed a proposed change in services

now provided to handicapped infants and toddlers, to assure that those services too

would be maintained during any dispute.9 Id. at § 680(7). Congress additionally

8

What is now Part C of the IDEA was originally designated as “Part H.” For clarity,

however, I refer to that section of the statute as “Part C” throughout.

9

The “stay put” provision relevant to the infants and toddlers program provides:

During the pendency of any proceeding or action involving a complaint by the

parents of an infant or toddler with a disability, unless the State agency and the

parents otherwise agree, the infant or toddler shall continue to receive the appropriate

19

required that IFSPs state “the steps to be taken supporting the transition of the

handicapped toddler to [special education] services provided [to school age children]

under part B” where those services would be needed, id. at § 677(d)(7) (emphasis in

original), thereby emphasizing the importance of a smooth transition from this new

program into Part B.

As of 1986, then, it was clear that Congress intended to develop a framework

for the continuous provision of services to handicapped children from birth through

school age in order to promote their educational development. The 1986 amendments

dovetailed with the existing law (providing for services for children ages 3 and up)

by providing for early intervention services for children from birth to age 2, inclusive,

and increasing the incentives to provide services for children ages 3 to 5.10 The “stay

put” provision pertaining to handicapped infants and toddlers guaranteed that parents

could maintain the current level of early intervention services pending resolution of

early intervention services currently being provided or, if applying for initial services,

shall receive the services not in dispute.

20 U.S.C. § 1439(b)(2005).

10

The requirement that attention be paid to the transition of handicapped infants and toddlers

who would continue to require services when they reached school age protected against any

interruption in services necessary for the child’s development and education. Early intervention

services were to include case management services designed to facilitate “the development of a

transition plan to preschool services” where those would be needed. H.R. No. 99-860, at 8, as

reprinted in 1986 U.S.C.C.A.N. 2401, 2408.

20

any dispute. Congress therefore intended that where services were provided under

the IDEA (whether under Part B or Part C of the IDEA), those services would

continue to be provided if a dispute arose as to a child’s proper placement, until the

dispute was resolved.

Indeed, Congress recognized that where early intervention and special

education services would be provided by different entities, it would be “essential that

the agencies coordinate their efforts to transition the child to the special education

system operated by the local educational agency.” H.R. No. 99-860, at 6, as reprinted

in 1986 U.S.C.C.A.N. at 2407. The House Report also noted that speedy resolution

of placement disputes in the infant and toddler program would be essential “because

an infant’s development is rapid and therefore undue delay could be potentially

harmful.” Id. at 14, as reprinted in 1986 U.S.C.C.A.N. at 2415.

Congress’ intention to ensure a smooth transition from Part C to Part B became

most prominent in the IDEA’s 1991 amendments. See Individuals with Disabilities

Education Act Amendments of 1991, S. 1106, 102nd Cong., 105 Stat. 587 (1991)

(“1991 Amendments ”). Congress expressly crafted those amendments “to facilitate

the development of a comprehensive ‘seamless’ system of services for children, aged

birth to 5, inclusive, and their families which will ensure . . . a smooth transition for

children moving from early intervention programs under [Part C] to preschool

21

programs under part B . . . .” H.R. No. 102-198, at 4 (1991), as reprinted in 1991

U.S.C.C.A.N. 310, 313 (emphasis added). The House Report found that “it is critical

that there will be no gap in services when a child turns three . . . ” Id. at 7, as

reprinted in 1991 U.S.C.C.A.N. at 316.

To this end, the 1991 amendments (1) require that state educational agencies

establish policies and procedures for the smooth transition from early intervention

services to special education services in preschool programs, including an assurance

that either an IEP or an IFSP is being implemented by the disabled child’s third

birthday; (2) allow educational agencies, with the parents’ consent, to continue using

IFSPs as IEPs for children ages 3 to 5; (3) authorize states and local educational

agencies to use preschool grants to provide a FAPE to 2-year old children with

disabilities who will turn 3 during the school year; (4) require that personnel be

trained to coordinate transition services for children moving from early intervention

services to special education services in preschool programs; (5) make transition

arrangements available that involve the family; and (6) guarantee the right of parents

or guardians to determine whether a disabled infant or toddler will accept or decline

an early intervention service without jeopardizing other early intervention services.

See 1991 Amendments §§ 5; 7; 13; 15; 16; and 17.

In short, these amendments were unambiguously designed to assure

22

continuous services to disabled children from birth through school age

notwithstanding any disputes and disagreements as to a child’s placement. The

majority errs by reading the “stay put” provision entirely outside this context and,

having done so, reaches a result that is contrary to the history, design, and purpose

of the IDEA. In order avoid an absurd result and give effect to the IDEA’s procedural

safeguards, we cannot read the “stay put” provision in isolation.

Nowhere could the absurd consequences of our failure to consider statutory

language in context be clearer than under the facts presented in this case. The

majority’s interpretation of “stay put” allows for the actual withdrawal of services to

the triplets in the middle of a school year (when they turned 3 years old), even though

the School Board failed to meet its statutory obligation to have an IEP in place for the

triplets when they reached the age of 3.11 This ruling thus has the surely unintended

effect of allowing a school board to abdicate its obligation to develop IEPs for

disabled infants and toddlers about to transition, and leaving those children and their

parents with no effective recourse during the pendency of a placement dispute.12 A

11

While the School Board may dispute the parents’ allegations in this case, the posture of

this appeal (as an appeal from the district court’s grant of the School Board’s motions to dismiss)

requires us to accept those allegations as true.

12

The majority contends that the reimbursement remedy is sufficient, because aggrieved

parents can simply pay for private educational services on their own during the pendency of the

placement dispute, and then sue to recover those expenses if it is later determined that the school

denied the child a FAPE. While the Supreme Court has noted that “conscientious parents who have

23

procedural safeguard intended to protect the rights of disabled children during a

placement dispute simply cannot reasonably be read to result in the withdrawal of

services already identified as necessary to a child’s educational development. This

result is contrary to the purpose of the IDEA.

Relying solely on part of the “plain language” of the stay-put provision to

conclude that the only placement for a disabled child who has reached school age and

is therefore applying for initial admission to public school is a “public school

program” with no accommodation, the majority rejects the argument that the existing

IFSP may constitute the triplets’ then-current educational placement, so as to entitle

them to continuation of those services pending the resolution of their dispute with the

School Board. For the foregoing reasons, concluding as a matter of law that existing

IFSPs cannot constitute a current educational placement is inconsistent with the

statute, when read as a whole, as well as with its intent and purpose. This conclusion

is also inconsistent with our reasoning in M.M. ex rel. C.M. v. Sch. Bd. of Miami-

Dade County, Fla., 437 F.3d 1085 (11th Cir. 2006). In M.M., we recognized that

adequate means and who are reasonably confident of their assessment” will often choose that course,

School Committee of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 370

(1985), this is no remedy for parents who do not have the financial means to pay for private

educational services in the first place. The IDEA’s procedural safeguards promote access to a free

and appropriate public education by protecting disabled children’s current educational placements

during a dispute as well as by providing for reimbursement when children are denied a FAPE under

Part B and then seek private services on their own.

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“early intervention services” previously provided under Part C—the same type of

services the triplets had been receiving here—may also constitute “special education

and related services” for purposes of establishing eligibility for reimbursement for

private school expenses when a child is denied a FAPE.13 If “early intervention

services” may constitute “special education services” for purposes of establishing

eligibility for reimbursement under the IDEA, then they may also constitute a child’s

existing “educational placement” for purposes of “stay put.”14 Like the triplets here,

C.M. (the child of M.M.) had never been enrolled in public school (by virtue of not

having yet reached school age), but had been provided early intervention services

under the IDEA. Even though C.M. had never been enrolled in public school, we

held that her parents were eligible for reimbursement for private school expenses

13

Section 1412(a)(10)(C)(ii) provides:

If the parents of a child with a disability, who previously received special education

and related services under the authority of a public agency, enroll the child in a

private elementary school or secondary school without the consent of or referral by

the public agency, a court or a hearing officer may require the agency to reimburse

the parents for the cost of that enrollment if the court or hearing officer finds that the

agency had not made a free appropriate public education available to the child in a

timely manner prior to that enrollment.

20 U.S.C. § 1412(a)(10)(C)(ii) (emphasis added).

14

To the extent that a particular IFSP does not contain an educational component, as defined

under the IDEA, a school board would not be required to continue those services under this

construction of “stay put.” All the IDEA requires is that schools make a FAPE accessible to children

with disabilities through the provision of “special education and related services.”

25

because the early intervention services C.M. had previously received constituted

“special education and related services under the authority of a public agency” for

purposes of the reimbursement provision. M.M., 437 F.3d at 1098. The majority errs

by finding as a matter of law that the triplets did not have a current educational

placement without considering, consistent with our case law, whether the “early

intervention services” they received also constituted “special education and related

services.”

In Pardini v. Allegheny Intermediate Unit, 420 F.3d 181 (3d Cir. 2005), the

Third Circuit found that Part B’s “stay put” provision required the continuation of

early intervention services to a child transitioning from Part C to Part B pending

resolution of a placement dispute, because those services constituted the child’s

“educational placement,” even though the child had not previously been admitted to

public school. In reaching that conclusion, the Third Circuit took particular note of

Congress’ intention that children transitioning from Part C to Part B enjoy a smooth

transition.15 See id. at 191 (“Congress stressed that the amendments it added [to the

IDEA] were ‘designed to promote a seamless system of services for children with

15

The Third Circuit also rejected the interpretation of “stay put” by the Department of

Education, finding it to be unpersuasive in light of the purpose and design of the statute. Pardini,

420 F.3d at 191. Indeed, an agency interpretation is not entitled to deference when it is not based

on a permissible construction of the statute. See Chevron v. Natural Res. Def. Council, 467 U.S.

837, 842-44 (1984).

26

disabilities, aged birth to five, inclusive.’”) (citation omitted). Although the majority

rejects our sister Circuit’s decision in Pardini as “incorrectly decided,” it fails to

address how its ruling squares with our own reasoning in M.M.

For these reasons, I dissent.

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