Some Clarification Provided on Duty of Intermediate Units to fund Typical Pre-School

There has been an ongoing dispute in Pennsylvania over when, if at all, the provider of early interventions services, typically an intermediate unit, is require to fund the placement for a student in a typical preschool.  A recent Hearing Officer decision on this issue helps to provide some guidance on this issue, although the line of when such services are required still remains unclear. 

The first case to decide this issue, B.D., ODR No. 00062-0910 AS (SEA Pa. 2010), found that the student in that case required preschool in order to meet the student’s special education needs, but appeared to suggest a broader requirement to fund such placements despite the clear direction by the Pennsylvania Commonwealth Court that no such duty exists. The more recent case of J.D., ODR No. 01524-1011 AS (SEA Pa. 2011) addresses this issue more directly by explaining that while such programs are clearly beneficial for all children, disabled or not, generally there is no duty on the part of intermediate units to fund such placements.  While the J.D. decision suggests that in some cases a student’s needs might require a typical pre-school, the decision puts the burden on the parents to establish the same.

Both decisions are a warning to intermediate units and other providers of early intervention services to carefully draft IEP’s and identify the needs of early intervention students or run the risk of being responsible for funding a typical preschool.

Third Circuit Denies Reimbursement when Medical Needs Can be Separated from Educational Needs

In the case of Mary Courtney T. v. School District of Philadelphia, in which a decision was issued July 31, 2009, the Third Circuit Court of Appeals has held that where medical and other needs of a special education student can be separated out from the educational problems and needs of the student, the school district is not responsible for payment of those services which are not educational. 

In Mary Courtney T., the student was placed in a long-term residential psychiatric treatment center, which did not have educational accreditations and had no on-site school, special education teachers or school affiliations.  The evidence in the case, according to the Court, showed that the student's treatment at this facility was medical, despite the fact that it contained what could arguably be classified as educational components.  

The Court emphasized that it was not the tools used, but the goals of the program that are to be used to determine if the program was educational or medical.  The Court further explained that because the student's education was impeded by a complex and acute medical condition, and not a lack of educational services or a specific kind of placement, it was not the responsibility of the school district to address this need.  The Court distinguished this case from other cases where a simple change in placement, without the need for more extensive medical intervention, would allow a student to access his or her education.        

The Court explained that there must be a link between the treatment provided and the child's learning needs to qualify for reimbursement under the IDEA.  Put another way, the Court explained it "must consider whether the residential placement ... was necessary to provide [the student] with special education."  The Court looked at the program provided to the student and found that it was related to her medical needs, not her learning needs, and found that it did not qualify for reimbursement.  

Finally, the Court took an interesting approach on the issue of reimbursement, by skipping the normal first step of determining whether the school district provided an appropriate placement and only looked at whether the placement chosen by the parents, the psychiatric treatment center, was educationally appropriate.   


The United States Supreme Court finished out its term last week by refusing to hear two cases related to schools.

First, in the case of Truth v. Kent School District the Court was asked to rule on whether a school district could refuse to recognize a Christian club named "Truth."  The school refused to recognize the group on the basis that its name might be a concern and that members were required to sign a statement of Christian faith, which violated the district's non-discrimination policy.  The club filed suit claiming the action violated the Equal Access Act and the First Amendment, but two lower courts disagreed.  The Supreme Court declined to hear the appeal, which means the lower court decisions stand. 

Next, in the case of Winkelman v. Parma City School District, the Court refused to hear an appeal of parents who were seek tuition reimbursement and raised issues of whether or not a court may look beyond the four corners of an IEP to determine if it is appropriate.  The trial court looked beyond the IEP in its decision and denied tuition reimbursement, with the decision being upheld by the Sixth Circuit Court of Appeals.  This is the second time the Winkelman's attempted to go to the Supreme Court, the last time they were successful and the Court found that they could proceed without counsel and represent the student in Court.  This subsequent appeal was on the merits of the case.       


The Supreme Court has issued its much anticipated decision in the Forest Grove matter ruling on the ability of parents of a student who has not been qualified for special education to seek tuition reimbursement under the IDEA. While there have been predictions of doom and gloom were the Court to reach the conclusion it did, that parents in this circumstance may seek reimbursement, a review of the analysis and facts of Forest Grove reveal that in the end the analysis of Burlington and Carter remain intact.

In Forest Grove, the student had been in the District for eleven and a half year with recorded history of trouble maintaining attention in class and completing assignments, which apparently got progressively worse. The parents requested that the District evaluate the student for special education needs, which it did and the District found that the student was not eligible. It is important to note that the evaluation was found to be legally inadequate. Shortly thereafter, the parents removed the student from the District and placed him in a private placement and then sought tuition reimbursement from the District.

The Forest Grove Court starts with the same analysis that has been used in tuition reimbursement for years: First, did the District fail to offer a FAPE? Second, is the private placement appropriate for the student? Finally, does a balancing of the equities weigh in favor of awarding reimbursement? Those familiar with these types of case should recognize the analysis, as it remains unchanged.

In looking at the first issue, the Court held that the failure to properly identify a student in need of special education is by definition a denial of a FAPE. The Court explains, “when a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Accordingly, so long as districts properly evaluate and identify students as well as offer appropriate programming, there is no increase in the likelihood that they will be liable for tuition reimbursement.

In looking at the last factor, the Court notes that the equities must also be considered. Included in this is the notice of the placement given by the parents to the District and the opportunity of the District to conduct an evaluation. These factors may be considered and, when appropriate, would justify a denial of tuition reimbursement.

The real lesson of the Forest Grove case is that districts continue to have a child find obligations and districts that meet that obligation have nothing to fear from Forest Grove. On the other hand, for district that have some problems with child find, Forest Grove should serve as a wake up call to show that student who are not properly identified have at their disposal all of the provisions of IDEA, including claims for tuition reimbursement.

Tom F.: the decision that isn't

Mark Fitzgerald is again our guest blogger, writing about the U.S. Supreme Court's non-decision about tuition reimbursement.  Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information. 

In a one sentence decision, an evenly divided U.S. Supreme Court in Board of Education of the City School District Of New York, No. 06-637, --- U.S. --- (2007) (Justice Kennedy did not participate) affirmed the decision of the Second Circuit Court of Appeals in finding parents need not accept a public school offer of a free appropriate public education before enrolling their child into a private school placement for purposes of the Individuals With Disabilities Education Act (“IDEA”).  Substantively, however, the Court “punted” on analyzing the statutory constructs of the IDEA to determine whether such a right exists for parents who have never accessed public education prior to unilateral private school placement. Therefore, the dispute surrounding this issue was not put to rest late last week.

With this “decision,” the Supreme Court affirmed an equally short decision by the Second Circuit, which had vacated and remanded the holding of the trial court in light of the decision in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir.), cert. denied, --- U.S. ---, 127 S.Ct. 3054 (2006). Therefore, while the decisions, or lack thereof, of both the Second Circuit and the Supreme Court together combine to form a modest sized paragraph, our analysis must turn to the comprehensive, yet peculiar decision by the Second Circuit in Frank G. in order to glean what the Supreme Court decision means for school entities, if anything at all.

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