Cite as: 526 U. S. 66 (1999)
Thomas, J., dissenting
children," Tatro, 468 U. S., at 892, n. 10 (emphasis in original), not those that are not. Now, as when Tatro was decided, the regulations require districts to provide services performed " 'by a licensed physician to determine a child's medically related handicapping condition which results in the child's need for special education and related services.' " Ibid. (quoting 34 CFR § 300.13(b)(4) (1983), recodified and amended as 34 CFR § 300.16(b)(4) (1998).
Extrapolating from this regulation, the Tatro Court presumed that this meant that " 'medical services' not owed under the statute are those 'services by a licensed physician' that serve other purposes." Tatro, supra, at 892, n. 10 (emphasis deleted). The Court, therefore, did not defer to the regulation itself, but rather relied on an inference drawn from it to speculate about how a regulation might read if the Department of Education promulgated one. Deference in those circumstances is impermissible. We cannot defer to a regulation that does not exist.3
II
Assuming that Tatro was correctly decided in the first instance, it does not control the outcome of this case. Because IDEA was enacted pursuant to Congress' spending power, Rowley, supra, at 190, n. 11, our analysis of the statute in this case is governed by special rules of construction. We have repeatedly emphasized that, when Congress places conditions on the receipt of federal funds, "it must do so unambiguously." Pennhurst State School and Hospital v. Hal-3 Nor do I think that it is appropriate to defer to the Department of Education's litigating position in this case. The agency has had ample opportunity to address this problem but has failed to do so in a formal regulation. Instead, it has maintained conflicting positions about whether the services at issue in this case are required by IDEA. See ante, at 74, n. 6. Under these circumstances, we should not assume that the litigating position reflects the "agency's fair and considered judgment." Auer v. Robbins, 519 U. S. 452, 462 (1997).
83
Page: Index Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: October 4, 2007