Dated February 2, 2007

Gerald L. Zahorchak, D.Ed.

Commonwealth of Pennsylvania

Department of Education

333 Market Street

Harrisburg, Pennsylvania 17126-0333

Dear Dr. Zahorchak:

I write to respond to your December 14, 2006 letter to Secretary
Spellings seeking clarification of the so-called "stay-put" regulation
in 34 C.F.R. §300.518(c) under Part B of the Individuals with
Disabilities Education Act (IDEA).

The IDEA stay-put regulation, which implements IDEA section 615(j), was
added to the final Part B regulations that were issued on August 14,
2006, and became effective on October 13, 2006. It provides that:

> If the complaint involves an application for initial services under
> this part \[Part B\] 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 \[under Part B\]
> is not required to provide the Part C services that the child had been
> receiving. If the child is found eligible for special education and
> related services under Part B and the parent consents to the initial
> provision of special education and related services under §300.300(b),
> then the public agency must provide those special education and
> related services that are not in dispute between the parent and the
> public agency.
>
> 34 C.F.R. §300.518(c).

Specifically, you asked how the Pennsylvania Department of Education
(PDOE) might implement 34 C.F.R. §300.518(c) in light of the judicial
decision of the U.S. Court of Appeals for the Third Circuit in *Pardini
v. Allegheny Intermediate Unit*, 420 F.3d 181 (3d Cir. 2005), *cert.
denied,* 126 S.Ct. 1646 (2006) which held that, under section 615(j) of
the IDEA, when there is dispute about the provision of appropriate
special education and related services to a child transitioning at age
three from Part C to Part B of the IDEA, the Part B public agency must
provide the educational services that were provided to the child under
Part C by the Part C lead agency as the "current educational placement"
while the dispute is pending. As you know, in this litigation, the
Department took a position that disagreed with the position ultimately
taken by the Court in its opinion in the *Pardini* case, and we believe
that the provisions of the new regulations correctly interpret the IDEA.

Your letter referred to a telephone conversation on this issue between
Dr. JoLeta Reynolds from our Office of Special Education and
Rehabilitative Services (OSERS) and PDOE Acting Chief Counsel Greg
Dunlap in late November 2006. Your letter requests further clarification
of the State's options given the new regulation. As Dr. Reynolds
indicated, if PDOE implemented the interpretation of the IDEA set out in
the *Pardini* decision*,* it would not be in violation of 34 C.F.R.
§300.518(c), since, under the regulation, public agencies are not
required to, but may if a public agency and parents agree, continue to
provide educational services pending the resolution of an administrative
hearing or judicial decision filed under IDEA section 615. States may
always adopt provisions that are more protective of children with
disabilities than the provisions in IDEA (as long as it does not violate
other provisions of the IDEA).

As to whether the adoption of 34 C.F.R. §303.518(c) on the stay put
provision relieves states in the Third Circuit, including Pennsylvania,
from providing services during the pendency of due process hearings to
children who are no longer eligible under Part C, we would recommend
that each State confer with its legal counsel to assess potential
options and the possible litigation risk from failing to provide
services. While we certainly believe our regulation is a valid
interpretation of IDEA section 615(j), and that courts generally give
deference to the Department's regulation, we cannot predict how a court
within the jurisdiction of the Third Circuit, or the Third Circuit
itself would rule on this issue given its previous opinion.

Please feel free to contact this office if you have further questions.
We appreciate your efforts on behalf of children with disabilities.

> Sincerely,
>
> /s/
>
> John H. Hager

cc: Dr. JoLeta Reynolds