[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.
14
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.”
16
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.
24
“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.
27