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Pardini v. Allegheny Intermediate Unit

August 29, 2005


On Appeal from the United States District Court for the Western District of Pennsylvania. D.C. Civil No. 03-cv-00725. District Judge: Arthur J. Schwab.

The opinion of the court was delivered by: McKee, Circuit Judge.


Argued: November 12, 2004

Before: McKee, Chertoff*fn1, Circuit Judges and Buckwalter*fn2, Senior District Judge


David and Jennifer Pardini brought this action on behalf of their minor daughter, "Georgia." They are appealing the District Court's ruling that she was not entitled to continue to receive certain educational/developmental services pursuant to the "stay-put" provision of the Individuals with Disabilities in Education Act, until the dispute over those services is resolved. For the reasons that follow, we will reverse.

I. Factual Background

Georgia Pardini was born on April 18, 2000. She has cerebral palsy, a condition that affects muscular coordination and body movement. Sometime after her first birthday, Georgia began receiving services from the Alliance for Infants and Toddlers ("AIT") in the form of an Individualized Family Service Plan ("IFSP") pursuant to the Individuals With Disabilities in Education Act, 20 U.S.C. §§ 1400-85, ("IDEA" or the "Act"). Shortly before Georgia's third birthday, as she was about to transition out of her IFSP, a dispute arose about whether the Individualized Education Program ("IEP") being developed for her by the Allegheny Intermediate Unit ("AIU") should include the conductive education Georgia had been receiving as part of her IFSP.*fn3

The AIU had evaluated Georgia as part of the normal transition from an IFSP to an IEP that is mandated by the IDEA when a child turns three. The District Court found that the Pardinis received the evaluation on March 15,2003 along with instructions telling them to "Read the report, sign the original, and return in the enclosed envelope within 5 days [and] [i]f you disagree with any part of the report, write a statement on a separate piece of paper that describes the items with which you disagree."

The Pardinis and agents of AIU met on March 24, 2003, but the Pardinis refused to sign the IEP because it did not provide for the conductive education Georgia had been receiving under the IFSP. Rather than sign, the Pardinis requested an independent evaluation and asked AIU to continue all of the services Georgia had been receiving pending the outcome of that evaluation. AIU responded by advising the Pardinis that it would instead seek a due process hearing pursuant to 20 U.S.C. §1415(f) "to prove the appropriateness of their evaluation and thus, deny the public expense of the independent evaluation." Pardini v. Allegheny Intermediate Unit, 280 F.Supp.2d 447, 450. (W.D. Pa. 2003). The Pardinis reiterated their request that conductive education continue as Georgia's "current educational placement" in a letter dated March 25, 2003. Although AIU subsequently sent the Pardinis at least two letters, one of which was dated March 31, 2003, and the other of which was dated April 15, 2003, a second IEP meeting scheduled for April 17 was postponed because the Pardinis did not receive adequate notice. When the Pardinis thereafter demanded a written explanation of the services that would be discontinued on Georgia's third birthday, AIU responded by asserting its intent to request a due process hearing. AIU also informed the family that it would not continue the conductive education during the due process proceedings and that feature of her IFSP would be discontinued as of Georgia's third birthday.

At the May 1, 2003 IEP meeting, AIU presented a Notice of Recommended Educational Placement ("NOREP") that included only those services it deemed appropriate; it did not include conductive education. The Pardinis signed noting their objection to the absence of conductive education. The District Court summarized that meeting and AIU's refusal to subsequently provide Georgia with any services as follows: "Plaintiffs attended [the] . . . meeting . . . under protest . . .. AIU refused to offer Plaintiffs a NOREP that included all of the IFSP related services and Plaintiffs signed their objection to AIU's NOREP as such. Nevertheless, the AIU has not restarted Georgia's IDEA services." Pardini, 280 F. Supp. 2d at 453.

The AIU and the Pardinis could not agree upon Georgia's IEP, and the Pardinis refused to sign a NOREP that did not include conductive education. The AIU took the position that it could not provide any services under the circumstances, and it terminated all of Georgia's services four days after her third birthday. The Pardinis responded in a letter to AIU in which they objected to AIU's actions and demanded that Georgia's services be reinstated pursuant to the "stay-put" requirement of 20 U.S.C. § 1415(j). The AIU maintained that § 1415(j) did not apply because Georgia was transitioning from an IFSP to an IEP. "The Pardinis reasonably believe[d] that conductive education, . . . has proven . . . effective and . . . beneficial to Georgia. [] AIU . . . refused to even consider the appropriateness and effectiveness of conductive education . . . as part of its proposed IEP, prior to presenting that IEP to the parents." Pardini, 230 F. Supp. 2d. at 454.

While the due process hearings were proceeding to determine whether "a meaningful and appropriate IEP should include . . . conductive education . . . or whether the alternatives offered by AIU [were] adequate to insure [Georgia's] meaningful progress," id., the Pardinis filed the instant action in the District Court.*fn4 The Hearing Officer did not specifically address the application of the stay-put rule. Rather, he relied upon the District Court's conclusion that "Georgia's IFSP is not pendent," because she had reached her third birthday, and proceeded to address the issue of "whether the parents should receive an [Independent Educational Evaluation] at public expense." App. 656. Thereafter, the District Court entered a final order ruling that § 1415(j) did not require the IEP to offer conductive education during the pendency of the administrative hearings.*fn5 This appeal followed.

Meanwhile, the state conducted due process hearings on June 10 and June 12, 2003 to determine if AIU was obligated to continue providing the services Georgia had received as part of her IFSP pending the resolution of the disputed IEP, as well as whether the proposed IEP was appropriate. Ultimately, the Dispute Resolution Hearing Officer ruled that AIU was not obligated to continue all of Georgia's services under the IFSP. The hearing was then continued to determine whether the Paridnis should receive an independent evaluation.

On August 29, 2003, after conducting a trial, the District Court issued a second opinion in which the court ruled that the Pardinis were not entitled to any relief. The court reasoned that the stay-put provision of the IDEA did not require AIU to provide the identical educational program that AIT had been providing under Georgia's IFSP because the AIT was a different program with a different funding stream. The court also concluded that the respective agency, not the parents, had the ultimate responsibility for deciding upon an appropriate educational program for Georgia. This appeal followed.*fn6

II. Discussion

The District Court concluded that the stay-put rule of § 1415(j) does not apply to a child who has reached her third birthday and is therefore transitioning from an IFSP to an IEP. The court explained, "[a]n IFSP is a medical model, . . . [whereas] [a]n IEP is an educational model. Pardini, 280 F. Supp. 2d at 454. The court reasoned that, since Georgia was embarking upon her first IEP and a public education, the "applicable stay-put placement . . . is the proposed public school placement and program" contained in the IEP that did not include conductive education. Id. Accordingly, the court reasoned that the AIU was not obligated to provide for conductive education pending the outcome of the due process hearings.

In order to properly resolve this dispute, we must examine the IDEA to determine if Congress intended that disputed features of an IFSP be provided under an IEP that is offered upon a child reaching the age of three and transitioning from one part of the Act to another.

A. Statutory Background

In enacting the IDEA, Congress originally only provided for children with disabilities who were between the ages 5 and 21. However, in 1986, Congress amended the ACT to extend to disabled children who were between three and five years of age. Accordingly, 20 U.S.C. ยง 1412 declares that a state is only eligible for financial assistance when "a free appropriate public education is ...

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