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.


As the Senate determines whether Judge Sotomayor will become Justice Sotomayor, one issue that is likely to receive very little attention is her views on interpreting the Individuals with Disabilities Education Act (“IDEA”), a statute which provides various rights to students in public schools who have disabilities as well as to their parents. While there is always a risk in trying to guess what a judge will do when he or she becomes a justice and often times the facts of a particular case drive the result of their decisions, it appears, based on the limited information available, that a Justice Sotomayor would be a friend to school districts in this area. A few examples are helpful.


First, in the area of attorney’s fees, Judge Sotomayor has taken a strict interpretation of the portion of the statute which allows parents, when they are successful at a hearing to determine what special educations services are appropriate for a student, to obtain payment for counsel fees by the school district. In several opinions, Judge Sotomayor has taken the view that parents are only entitled to obtain attorney’s fees when that right is clearly established under the statute and refused to allow attorney’s fees in cases where the right was questionable or non-existent under the statute. Such a view is clearly one that is friendly to school districts and in many respects encourages parents and their counsel to be more reasonable in their efforts to resolve such cases prior to hearing.


Second, in reviewing the decisions of hearing officers and lower courts, in several cases she has deferred to state level hearing officers who have found in favor of school districts, especially in the area of tuition reimbursement. Judge Sotomayor has joined in several opinions that, when appropriate, overturn decisions of district court judges who have attempted to substitute their own opinion for that of the state level hearing officer to award parents tuition reimbursement. Such a role of ensuring that state level hearing officers decisions on the complex decision of tuition reimbursement, which many times results in the denial of the same to parents, is view that is helpful to school districts by limiting liability for tuition reimbursement only to those cases where it is clearly appropriate.


Finally, in the area of applying the statue of limitations under the IDEA, an issue which many courts have struggled to find a consensus, Judge Sotomayor has joined in at least one opinion that takes the stricter view on the statute of limitations finding that two years means two years. While other courts have found ways to try to expand the statute of limitations, a view that leaves open the possibility of more liability to school district, Judge Sotomayor joined in an opinion that would appear to limit potential liability to district.


Thus, although it is possible that a Justice Sotomayor would take a different view on cases as a Justice of the Supreme Court, based upon her record as an Appeal Court Judge, she may be a Justice that schools districts find to be district friendly in the area of special education. 


This blog posting appeared in The Legal Intelligencer on Monday, July 20, 2009. 



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.

For practical purposes, the Frank G. decision does not reveal anything significant that school entities did not already know: LEAs have an ongoing obligation to identify, evaluate, and propose an appropriate program and placement to all eligible children within the boarders of the LEA. However on a legal level, the results of Frank G. reveal a split among the federal appeal courts regarding the need for parents to accept a district’s offer of FAPE before unilaterally removing the child from the public school system and seeking tuition reimbursement at a private school.

In analyzing the tuition reimbursement provision of IDEA, Frank G., unlike the trial court in Tom F. and the First Circuit in Greenland School District v. Amy N., 358 F.3d. 150 (1st Cir. 2004) concluded the statute is ambiguous on the issue of whether parents were required to previously receive special education services before enrolling the student in a private school. Therefore, in applying the canons of statutory interpretation to an otherwise ambiguous provision of the IDEA Frank G. concluded reimbursement is available to parents who do not accept a district’s offer of FAPE before enrolling their child into a private program.

Greenland involved a similar tuition reimbursement dispute and the court concluded otherwise, that the IDEA limits tuition reimbursement to parents who have children who had previously received “special education and related services” while in the public school system or perhaps those who at least timely requested such services while the child is in public school.

With the Supreme Court failing to substantively analyze the language of the IDEA and the case law accompanying this issue, the question of whether parents are required to accept an offer of FAPE before seeking tuition reimbursement will likely arise another day. Until resolved by the Supreme Court, Frank G. and Greenland remain in conflict with each other.

In many respects, regardless of Frank G., school districts still control their own destiny regarding liability for tuition payments. While Frank G. concluded a parent need not accept a district’s offer of FAPE and go through the process of enrolling the child into public schools, the court did say a school district must still be afforded the opportunity to evaluate and propose a program and placement for the child at issue, which is consistent with the earlier holding in Greenland. Therefore, so long as a district appropriately identifies a student’s potential need for specially designed instruction and follows such identification up with appropriate evaluations and programming, a district should have little concern.

 A coda to the problematic Frank G. decision is the ever increasing propensity for judges to “Monday Morning Quarterback” the decisions of impartial hearing officers and appeals panels by considering new evidence not available at hearing.

The Student in question in Frank G. had attended a parochial school prior to his parents seeking an evaluation by district. While the Student was attending the parochial school, the district completed its evaluation and found him eligible for special education. The district subsequently proposed a program and placement in the district. The parents rejected the offer and sought private placement at a new private school (“Upton Lake”).

Evidence presented at the administrative hearings revealed the proposed program and placement offered by the district was inappropriate, a point later conceded by the district. The hearing officer further concluded the proposed private school placement was likewise not appropriate. In doing so, , the Hearing Officer relied on evidence of regression in various academic areas as well as a program and placement that was not reasonably calculated for the Student. A state appeals officer affirmed the decision.

On appeal, the trial court reversed the administrative decisions by considering post-hearing evidence. While the trial court acknowledged that Upton Lake provided the Student with neither an individual aide nor a direct consultant teacher, it was satisfied that the Student’s regular education teacher worked with the Student “when possible.” The court was further persuaded by the Student’s academic progress, which was generally memorialized through one administration of the Stanford Achievement Test.

Ironically, the trial court was willing to overlook the same shortcomings with the private school that resulted in liability to the public school, an all too-frequent and unfortunate irony in these cases.