Dated September 4, 2007

Michael D. Hampden

Partnership for Children\'s Rights

271 Madison Avenue, 17th Floor

New York, NY 10016

Dear. Mr. Hampden:

This letter is in response to your letter dated May 31, 2007 in which
you request clarification of a statement that appears in the preamble to
the final regulations for Part B of the 2004 reauthorization of the
Individuals with Disabilities Education Act (IDEA), published on August
14, 2006 in the Federal Register, Vol. 71, No. 156, at page 46710,
concerning a change in former regulation 34 CFR §300.514, now 34 CFR
§300.518, Child\'s Status During Proceedings. You indicate that, \"The
following statement in the preamble has unfortunately occasioned
confusion ill due process administrative decisions in New York, to the
detriment of students\' rights:

To clarify that new § 300.518(d) (proposed § 300.518(c)) does not apply
to a first-tier due process hearing decision in a State that has two
tiers of administrative review, but only to a State-level hearing
officer\'s decision in a one-tier system or State review official\'s
decision in a two-tier system that is in favor of a parent\'s proposed
placement, we are removing the reference to \"local agency\" in new §
300.518(d). This change is made to align the regulation more closely
with case law.\"

In particular, you express concern that this statement has been
interpreted (incorrectly, you believe) to mean that pendency rights are
not established by an unappealed first-tier hearing decision on the
merits that is in favor of the parent.

Under 34 CFR §300.518(d) of the final Part B regulations, published
August 14, 2006, if the hearing officer in a due process hearing
conducted by the State educational agency (SEA) or a State review
official in an administrative appeal agrees with the child\'s parents
that a change of placement is appropriate, that placement must be
treated as an agreement between the State and parents for purposes of 34
CFR §300.518(a). Paragraph (a) states that, except as provided in 34 CFR
§300.533, during the pendency of any administrative or judicial
proceeding regarding a due process complaint notice requesting a due
process hearing under 34 CFR §300.507, unless the State or local agency
and the parents of the child agree otherwise, the child involved in the
complaint must remain in his or her current educational placement.

Under 34 CFR §300.518(a), if the parent is requesting a change of
placement with which the first-tier hearing officer agrees and the local
agency appeals that decision, the original placement (where the child
received services at the time the hearing request was made) is the
child\'s placement until the result of the appeal (second-tier hearing).
Under 34 CFR §300.518(d), if the result of the State-level appeal is
that the placement should be changed, as requested by the

Page 2 Michael D. Hampden, Esq.

parent, that placement is the child\'s placement during any subsequent
appeal to a court of competent jurisdiction. However, neither of these
provisions address a situation in a State that has a two-tier due
process system, in which a local agency does not appeal a first-tier due
process officer\'s decision on the merits that is favorable to the
parent. Under 34 CFR §300.514(a), an unappealed decision is final, and
must be implemented. That final decision on the merits, as implemented,
becomes the child\'s current educational placement.

In a single-tier system, the result of the initial hearing must be
treated as the child\'s current educational placement, pending any
judicial appeals by either party. If there are no appeals, the child\'s
placement remains in accordance with the hearing officer\'s decision.

The same decision rules apply if it is the local agency requesting the
change in placement. If the hearing officer agrees with the local
agency, in a two-tier system, and the parent does not appeal the
decision, the placement is that determined by the hearing decision. If
the parent appeals the decision, the child\'s placement at the time the
first-tier hearing was requested is the child\'s placement until the
result of the appeal. Once the second-tier placement decision is made,
that placement becomes the child\'s placement during any subsequent
judicial appeals.

Based on section 607(c) of the IDEA, we are informing you that our
response is provided as informal guidance and is not legally binding,
hut represents an interpretation by the U.S. Department of Education of
the IDEA in the context of the specific facts presented.

We hope this clarification is helpful. If you have further questions,
please do not hesitate to contact Deborah Morrow at 202-245-7456.

Sincerely,

/s/

Patricia J. Guard

Acting Director

Office of Special Education\
Programs

cc: Rebecca Cort