MONTGOMERY COUNTY INTERMEDIATE UNIT NO. 23 v. K.S.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MONTGOMERY COUNTY : CIVIL ACTION

INTERMEDIATE UNIT NO. 23 :

:

v. :

:

K.S., By and Through His Parents, :

K.S. and F.S., K.S., In Their Own :

Right and F.S. In Their Own Right : NO. 20-2330

MEMORANDUM OPINION

Savage, J. June 29, 2021

Pennsylvania does not provide free, universal preschool. The question in this case

is whether it must, nevertheless, reimburse tuition for placement in a typical preschool1

when it is necessary to provide a disabled child a free and appropriate public education

(“FAPE”). The facts are not in dispute. The sole issue is a legal one – whether the

Burlington-Carter tuition reimbursement analysis is ever appropriate to determine

placement of a disabled child at a typical preschool. The answer to the question turns on

whether Pennsylvania law clearly opted out of the Individuals with Disabilities Education

Act’s (“IDEA”) requirement to provide placement for disabled children in the three-to-five

age group. Only if the answer is “no” is the Burlington-Carter analysis applicable to

determine whether parents are entitled to tuition reimbursement.

We conclude that Pennsylvania law requires tuition reimbursement for placement

of a disabled child at a typical private preschool where it is necessary for the particular

child to receive FAPE in the least restrictive environment (“LRE”). To hold otherwise

would create two classes of disabled children – those whose parents can afford preschool

1 A “typical” preschool is a preschool open to all preschool-aged children, usually at the parents’

expense and consisting primarily of neurotypical children. Joint Stmt. of Undisputed Facts at ¶ 11 (ECF No.

15). There is no universal, public funding for typical preschools in Pennsylvania. Id. at ¶ 12.

tuition and those whose parents cannot. The latter would be left behind. Such a result

could hardly have been intended.

In this case, the Pennsylvania Special Education Hearing Officer (the “Hearing

Officer”) decided to award tuition reimbursement and transportation for K.S.’s attendance

at a typical preschool because he found the typical preschool placement was necessary

for K.S. to receive FAPE. Montgomery County Intermediate Unit No. 23 (“MCIU”) has

appealed the decision. The parties have filed cross-motions for judgment on the

administrative record. In light of Pennsylvania’s adoption of the IDEA’s requirements for

providing FAPE to disabled preschool students, we conclude that MCIU must reimburse

K.S.’s parents for the tuition they paid for K.S.’s typical preschool. We also conclude that

MCIU must provide transportation for K.S. to attend his typical preschool. Therefore, we

shall grant Parents’ motion for judgment on the administrative record and deny MCIU’s

cross-motion.

Factual Background2

K.S., born on January 13, 2016, is a young child diagnosed with Autism Spectrum

Disorder, Mixed Receptive-Expressive Language Disorder and a sensory processing

disorder.3 He is eligible for preschool special education services under the category of

“autism.”4

2 The facts recited here are from the Hearing Officer’s findings of fact as recounted in the Final

Decision and Order, ODR No. 22842 (Feb. 28, 2020) (ECF No. 14) (“ODR Decision”). The parties do not

dispute the Hearing Officer’s factual findings. See JSUF; Oral Arg. Tr. at 13:4-5, 15:10-13.

3 ODR Dec. at 1, 7 ¶ 1.

4 Id. at 4 ¶ 10.

K.S. received “birth to three” early intervention services from Montgomery County

Department of Health and Human Services (“HHS”).5 As part of the “birth to three”

program, he received speech therapy, occupational therapy, behavioral services and

special instruction.6 HHS continued to provide services to K.S. until he transitioned to

services provided by MCIU when he turned three in January 2019.7

HHS recommended placement in a typical preschool where he would receive early

intervention services.8 It did not recommend any particular preschool.9 In October 2018,

Parents enrolled K.S. at Hearts and Hands Preschool based in part on HHS’s

recommendation.10 Hearts and Hands is located an eight to fourteen minute drive from

K.S.’s home.11 Because Hearts and Hands is a typical preschool, all special education

and related services K.S. received there were provided by either Parents’ insurance or

HHS and MCIU.12

5 Id. at 2, 7 ¶ 2, 6 ¶ 23, 8 ¶ 9.

6 Id. at 7 ¶ 2.

7 Id. at 2, 8 ¶ 9. MCIU is one of 29 Intermediate Units (“IUs”) in Pennsylvania. See “What is an

Intermediate Unit?,” MONTGOMERY COUNTY INTERMEDIATE UNIT NO. 23 (2017), http://www.mciu.org/about-

us/what-is-an-intermediate-unit/. IUs are regional educational agencies that serve the educational needs of

a given geographic area, including supporting local school districts by providing special education services.

Id.

8 ODR Dec. at 7 ¶ 3.

9 Id.

10 Id. at 7 ¶¶ 3, 5.

11 Id. at 7 ¶ 4.

12 Id. at 7-8 ¶ 6. During his enrollment at Hearts and Hands, K.S. received full-day, one-to-one

support from a Registered Behavior Technician supervised by a Board Certified Behavior Analyst. Id. at 8

¶ 8. Both support personnel were provided through and funded by Parents’ insurance. Id.

To prepare for the transition from HHS to MCIU in January 2019, MCIU evaluated

K.S. in October 2018.13 The evaluation identified several areas where K.S. needed

support, including following directions, initiating social contact, increasing functional play,

transitioning between activities and improving communication, fine motor, and

coordination skills.14

MCIU held an Individualized Education Program (“IEP”) meeting with Parents on

January 7, 2019.15 The proposed IEP contemplated special education and related

services for K.S. at Hearts and Hands.16 Parents rejected the IEP because it did not

provide tuition or transportation.17 They also disagreed with the proposed level of

services.18 Transportation to Hearts and Hands was especially important to Parents

because transporting K.S. imposed substantial out-of-pocket expenses and adversely

impacted their employment.19

The parties held another IEP meeting on February 1, 2019.20 The proposed

February IEP increased the level of services, but did not provide tuition or

transportation.21 Parents rejected the second IEP.22

13 Id. at 8 ¶¶ 9-10.

14 Id. at 9 ¶ 14.

15 Id. at 4 ¶ 11.

16 Id. at 10 ¶ 18.

17 Id. at 11 ¶¶ 21-22.

18 Id. at 11 ¶ 22.

19 Id. at 18 ¶ 53.

20 Id. at 12 ¶ 25.

21 Id.

22 Id. at 12 ¶ 27.

MCIU has a policy of providing transportation only to preschools designed for

children with specialized needs.23 It does not provide transportation for students to or

from typical preschools unless the typical preschool is providing before or after-care for a

child attending a specialized preschool.24 MCIU was willing to provide transportation for

K.S. to a specialized preschool, but not to the typical preschool he was attending.25

Considering specialized preschools, Parents toured Next Step Classroom in

March 2019 and Friendship Academy in July 2019, two specialized preschool placements

suggested by MCIU.26 Dr. Jennifer McLaren, a certified school psychologist specializing

in autism, accompanied Parents on a second visit to Friendship Academy.27 Next Step

Classroom enrolls only children with Autism Spectrum Disorder.28 Friendship Academy

has an equal mix of neurotypical and disabled children.29

Parents considered the Next Step Classroom and Friendship Academy

inappropriate placements for K.S. because they feared the forty-five minute bus ride from

his home would dysregulate him due to his sensory processing disorder.30 They also

noticed the children at the specialized preschools displayed much lower skills than K.S.,

23 Id. at 14 ¶ 33; JSUF at ¶ 36.

24 ODR Dec. at 14 ¶ 33.

25 Id. at 14-15 ¶ 34.

26 Id. at 5 ¶ 15, 14-15 ¶¶ 34-35, 16 ¶¶ 43-44.

27 Admin. Rec. Ex. P-73 at 5 (ECF No. 14).

28 ODR Dec. at 15 ¶ 36.

29 Id. at 16-17 ¶ 45.

30 Id. at 15 ¶ 37.

did not interact with one another, were non-verbal, and engaged in negative behaviors,

such as hitting the teacher and pulling the teacher’s hair.31 Because K.S. tries to mimic

his peers’ actions, he needs positive peer role models.32 Dr. McLaren, who shared

Parents’ concerns with Friendship Academy, concluded that K.S. should be in an

environment with neurotypical peers so he could learn to model their behavior.33 Parents

rejected two more IEPs because they offered Next Step Classroom and Friendship

Academy as the placements.34

On October 11, 2019, Parents filed a complaint with the Pennsylvania Office for

Dispute Resolution requesting a due process hearing.35 On October 30, 2019, the parties

held a fifth IEP meeting which listed Friendship Academy as the placement.36 Parents

approved the level of behavior support, occupational therapy and physical therapy

services offered in the IEP, but not the level of speech therapy.37 They rejected the

placement.38

The Hearing Officer’s Decision

In his decision of February 28, 2020, the Hearing Officer applied the three-step

Burlington-Carter analysis to determine whether Parents are entitled to reimbursement

31 Admin. Rec. Ex. P-73 at 5; N.T. 85-87; 4 N.T. 402-406.

32 ODR Dec. at 15 ¶ 37; Admin. Rec. Ex. P-73 at 8.

33 ODR Dec. at 15 ¶ 37, 16 ¶ 41, 17 ¶¶ 46, 48; Admin. Rec. Ex. P-73 at 8-9.

34 ODR Dec. at 16 ¶ 41, 17, ¶ 48, 18, ¶ 51.

35 Id. at 17 ¶ 49.

36 Id. at 17 ¶ 50.

37 Id. at 5-6 ¶¶ 21-22, 18 ¶ 51.

38 Id. at 18 ¶ 51.

for tuition at Hearts and Hands. He considered whether: (1) the offered placement would

provide K.S. FAPE; (2) Parents’ placement choice was appropriate for K.S. to receive

FAPE; and (3) equitable considerations merited a reduction or elimination of a

reimbursement award.39 Burlington Sch. Comm. v. Dep’t of Educ. of Massachusetts, 471

U.S. 359 (1985); Florence County Sch. Dist. v. Carter, 510 U.S. 7 (1993).

The Hearing Officer concluded that MCIU’s most recent placement offer at

Friendship Academy was not appropriate for K.S.40 He found that MCIU’s own evaluation

supported K.S.’s placement in a typical preschool.41 Nothing in any of the evaluations

concluded that K.S. required a specialized preschool to receive FAPE.42 Rather, the

Hearing Officer concluded that MCIU offered the placement because: (1) it could

acquiesce to Parents’ demand for transportation without violating its policy; (2) the

preschool serves children with K.S.’s diagnosis; and (3) Parents had rejected Next Step

Classroom.43 In short, he found that MCIU offered placement at Friendship Academy

based on administrative convenience, not K.S.’s unique needs.44

39 Id. at 22.

40 Id. at 27. The Burlington-Carter analysis requires MCIU to offer a placement providing FAPE

within ten days of Parents’ notice of intent to seek tuition reimbursement. Id. at 25. Parents’ only written

demand for tuition reimbursement came in their due process complaint on October 11, 2019. Id. at 25-26.

The Hearing Officer therefore examined MCIU’s last offer before October 21, 2019, which was Friendship

Academy. Id. at 26.

41 Id. at 27.

42 Id.

43 Id.

44 Id. at 28.

On the other hand, the Hearing Officer determined that Parents’ choice of

placement at Hearts and Hands was appropriate.45 He noted that Hearts and Hands,

without MCIU’s speech therapy, occupational therapy, special instruction, physical

therapy and behavioral services to K.S., was not appropriate.46 However, he reasoned

that Parents’ placement choice was based on considering Hearts and Hands together

with MCIU’s special education and related services.47 The Hearing Officer noted that

MCIU conceded that Hearts and Hands was an appropriate placement when it offered to

provide services to K.S. in that setting at the first IEP meeting.48 MCIU only objected to

paying tuition.

The Hearing Officer concluded that there were no equitable considerations

warranting a reduction or elimination of tuition reimbursement.49 Parents were consistent

in explaining in writing what they wanted and why.50 They visited both placements MCIU

suggested.51 They consented to each evaluation MCIU proposed and they otherwise

cooperated with MCIU’s efforts to gather information about K.S.52 He decided that

45 Id. at 29.

46 Id. at 28-29.

47 Id. at 29.

48 Id.

49 Id.

50 Id. at 29.

51 Id.

52 Id. at 30.

Parents were entitled to tuition reimbursement for K.S.’s attendance at Hearts and Hands

from October 21, 2019 through the end of the 2019-2020 school year.53

The Hearing Officer agreed with Parents that MCIU was obligated to make an

individualized determination whether transportation was necessary as a related service

for K.S. to receive FAPE.54 The parties agreed no such individualized determination was

made.55 MCIU argued that the IDEA defers to state law on questions of early intervention

transportation, and Pennsylvania’s early intervention law does not require it to transport

students to typical preschools.56 MCIU also argued that Pennsylvania custom and

practice establishes that early intervention providers do not transport students to typical

preschools.57

The Hearing Officer held that the omission of transportation from the list of services

that Pennsylvania early intervention agencies must provide does not excuse them from

adhering to the affirmative IDEA mandate listing transportation as a related service.58 He

noted that there is a Pennsylvania custom and practice against transporting students to

typical preschools, but it is “not controlling.”59 He concluded the evidence established that

transportation was necessary for K.S. to receive FAPE.60 Because of the burden on

53 Id.

54 Id. at 30-31.

55 Id. at 30.

56 Id.

57 Id. at 31.

58 Id. at 30-31.

59 Id. at 31.

60 Id.

Parents to transport K.S. to school, the education he received at Hearts and Hands was

not “free.”61 He held that K.S. was entitled to transportation as a related service under the

unique facts of this case.62

Parties’ Arguments

Parents’ Motion for Judgment on the Administrative Record

Parents argue that the Hearing Officer correctly applied the Burlington-Carter

analysis for reimbursements for tuition and related services.63 They explain that the

IDEA’s statutory scheme requires a local educational agency (“LEA”)64 to provide FAPE

as well as appropriate related services in the LRE for the student.65 When an LEA fails to

meet those obligations, Parents argue, reimbursement is the primary remedy to

compensate parents for their out-of-pocket expenses in providing their child with FAPE.66

The hearing officer has the discretion to award this equitable remedy when the facts

warrant it.67

61 Id. at 31-32.

62 Id. at 32.

63 Defs.’ Memo. in Supp. of Mot. for J. on Admin. Rec. at 10-11 (ECF No. 17).

64 The IDEA defines “local educational agency” as “a public board of education or other public

authority legally constituted within a State for either administrative control or direction of, or to perform a

service function for, public elementary schools or secondary schools in a city, county, township, school

district, or other political subdivision of a State, or for such combination of school districts or counties as

are recognized in a State as an administrative agency for its public elementary schools or secondary

schools.” 20 U.S.C. § 1401(19)(a). In other words, an LEA is the equivalent of a school district for purposes

of this opinion.

65 Defs.’ Memo. in Supp. at 12.

66 Id.

67 Id. at 11.

Parents contend the fact that LEAs do not ordinarily provide tuition and

transportation to typical preschools in Pennsylvania is not dispositive, noting that hearing

officers and courts often award equitable remedies beyond the normal parameters for

IDEA eligibility.68 Similarly, that Pennsylvania does not provide universal public preschool

is not dispositive because courts have held that the LRE requirement is not limited by

what programs an LEA offers.69 They contend that Pennsylvania special education

hearing officers, as well as Pennsylvania courts, have held that LEAs are not obligated to

fund typical preschool settings for all disabled children, but they may be obligated to do

so when it is necessary for an individual to receive FAPE.70

Parents argue that Pennsylvania has adopted the IDEA provisions on evaluations,

IEPs and early intervention services, including the FAPE and LRE requirements, and the

provisions in 34 C.F.R. § 300.148 governing the reimbursement of tuition for private

school enrollment.71 They contend there is no state bar to payment for tuition at a typical

preschool for eligible students.72 They claim Pennsylvania’s Early Intervention Services

System Act (“EISSA”), Pennsylvania’s Administrative Code and Pennsylvania

Department of Education (“PDE”) guidance documents demonstrate that an LEA may be

obligated to pay for tuition at a typical preschool if it is necessary for the child to receive

FAPE in the LRE.73

68 Id. at 11-12.

69 Id. at 18-19.

70 Defs.’ Resp. in Opp. to Pl.’s Mot. for J. on Admin. Rec. at 6-8 (ECF No. 18).

71 Defs.’ Memo. in Supp. at 13-14; Defs.’ Resp. at 3.

72 Defs.’ Memo. in Supp. at 13.

73 Id. at 16; Defs.’ Resp. at 3.

Parents emphasize that the Hearing Officer found that K.S.’s needs and IEP goals

necessitated a typical preschool.74 Because MCIU refused to consider this placement for

K.S., Parents contend, it denied him FAPE in the LRE.75 Parents emphasize that MCIU

has not appealed the Hearing Officer’s factual findings that it offered placement at

Friendship Academy for administrative convenience, it failed to evaluate K.S.’s needs

before choosing to segregate him from his neurotypical peers, and it failed to find a

placement in the LRE.76

Parents also argue that the Hearing Officer appropriately ordered MCIU to provide

transportation under the unique facts of this case.77 They state that it is undisputed that

transportation is a related service under the IDEA and the right to FAPE includes related

services.78 Though the EISSA’s list of related services does not include transportation,

they contend, the EISSA explicitly expresses that its list is not exhaustive.79 To show that

MCIU is obligated to provide transportation under Pennsylvania law, they cite 24 P.S. §

13-1374, which requires Intermediate Units (“IUs”) to provide transportation for children

with disabilities when they are unable to attend the class or center for which they are

qualified.80

74 Defs.’ Memo. in Supp. at 17, 19.

75 Id. at 16-17.

76 Defs.’ Resp. at 4.

77 Defs.’ Memo. in Supp. at 19, 22.

78 Id. at 19; Defs.’ Resp. at 9.

79 Defs.’ Resp. at 9.

80 Id.

Parents contend that transportation is necessary to meet K.S.’s IEP goals and to

provide FAPE.81 They argue that there is no statewide practice against early intervention

agencies providing transportation to typical preschools.82 According to Parents, only

statewide practices or customs can establish a policy against transporting students to

typical preschools, and MCIU has not shown the existence of a statewide practice.83

MCIU’s Motion for Judgment on the Administrative Record

MCIU, relying on the exception in 20 U.S.C. § 1412 allowing states to opt out from

providing preschool children FAPE, argues it has no obligation to fund K.S.’s placement

at Hearts and Hands.84 According to MCIU, Pennsylvania has chosen to provide fewer

protections or services for preschoolers.85 It claims that just as LEAs are not obligated to

fund preschool for neurotypical children in Pennsylvania, they are not required to fund

typical preschool placements for children with disabilities.86

MCIU contends the Hearing Officer improperly ignored Section 1412’s exception

and erred in applying the Burlington-Carter reimbursement framework because Parents

were never entitled to a tuition reimbursement in the first place.87 MCIU cites several

decisions from Pennsylvania special education hearing officers holding that LEAs in

81 Defs.’ Memo. in Supp. at 19-20.

82 Id. at 20-21.

83 Defs.’ Resp. at 10-11.

84 Pl.’s Memo. in Supp. of Mot. for J. on Admin. Rec. at 4-5 (ECF No. 16).

85 Id. at 5-6.

86 Id. at 6.

87 Id. at 9-10; Pl.’s Resp. in Opp. to Defs.’ Mot. for J. on Admin. Rec. at 2 (ECF No. 19). MCIU

conceded at oral argument that assuming the Burlington-Carter standard applied in the first place, the

Hearing Officer applied it correctly. Oral Arg. Tr. at 53:5-24.

Pennsylvania do not have a duty to fund a typical preschool environment, only early

intervention services which can be administered in a variety of settings.88 According to

MCIU, there is no legal authority for the proposition that a hearing officer can award tuition

reimbursement for a typical preschool.89 It claims the guidance documents Parents rely

upon do not have the force of law.90

MCIU argues that FAPE and the LRE are two distinct concepts.91 FAPE refers to

programs and services, whereas the LRE is the setting common to all learners of the

same age and grade level.92 MCIU acknowledges that it is obligated to provide

specialized services to K.S. at his placement, but disputes that it must fund the placement

itself.93 Even if Hearts and Hands is the LRE, MCIU argues, it does not alter the current

state of Pennsylvania law, which imposes no statutory obligation to pay for the

placement.94

MCIU also argues that Pennsylvania state law and practice impose no obligation

to provide transportation to typical preschools as part of FAPE.95 The EISSA defines what

88 Pl.’s Memo. in Supp. at 6-7, 9-10; Pl.’s Resp. at 3-4. Parents distinguish MCIU’s hearing officer

decisions on the grounds that the officers concluded in those cases, unlike here, that the children did not

require a typical preschool placement to receive FAPE. Defs.’ Resp. at 6-7. They claim MCIU

mischaracterizes those decisions as uniformly prohibiting preschool tuition reimbursement in the

appropriate case. Id. at 8.

89 Pl.’s Resp. at 2-3.

90 Id. at 4.

91 Pl.’s Memo. in Supp. at 7-8.

92 Id. at 7-8.

93 Id. at 9.

94 Id. at 8.

95 Id. at 11.

is included in early intervention services, and it noticeably does not list transportation as

one of them.96 MCIU emphasizes that the exception in Section 1412 focuses on what

state law requires, not what it prohibits.97 MCIU claims that Parents overstate the

importance of Section 13-1374 of Purdon’s Pennsylvania Statutes because MCIU need

only provide services, not placement, and the class and center is not one for which K.S.

is qualified by way of early intervention services.98 It also claims that state practice does

not provide transportation for children with disabilities attending typical preschools even

if they receive services there, and there was no evidence presented to the contrary.99

MCIU contends the Hearing Officer erred by reading an additional requirement to provide

transportation into the Pennsylvania statutes and finding the Pennsylvania practice

against providing transportation to typical preschools was not controlling.100 MCIU adds

that if we affirm the Hearing Officer’s decision to award tuition and find that transportation

is required because of the tuition reimbursement, we should reverse the Hearing Officer’s

decision to order transportation on a broader scale and limit the Hearing Officer’s legal

conclusion to the facts of this case.101

96 Id.; Pl.’s Resp. at 5-6.

97 Pl.’s Memo. in Supp. at 11.

98 Pl.’s Resp. at 5.

99 Id. at 6.

100 Pl.’s Memo. in Supp. at 12-13.

101 Id. at 13-14. The Hearing Officer did not order transportation on a broad scale. He held “[t]he

Student is entitled to a free appropriate public education and so, under the unique facts of this case, the

Student is entitled to transportation as a related service.” ODR Dec. at 32 (emphasis added). He ordered

that “[g]oing forward, MCIU may, at its discretion, either continue to reimburse the Parents for transportation

purchased by the Parents or provide its own transportation through the end of 2019-2020 school year.” Id.

at 34.

Standard of Review

The district court conducts a “modified de novo” review of a special education

hearing officer’s decision. D.K. v. Abington Sch. Dist., 696 F.3d 233, 243 (3d Cir. 2012)

(citations omitted); D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010). The

district court must give “due weight” and deference to administrative factual findings which

are deemed prima facie correct. D.S., 602 F.3d at 564; P.P. v. W. Chester Area Sch.

Dist., 585 F.3d 727, 734 (3d Cir. 2009). The court may not substitute its “own notions of

sound educational policy for those of the school authorities.” Endrew F. ex rel. Joseph F.

v. Douglas Cnty. Sch. Dist. Re-1, 137 S. Ct. 988, 1001 (2017) (quoting Bd. of Educ. v.

Rowley, 458 U.S. 176, 206 (1982)). The court must defer to the findings of those with

educational expertise.

Analysis

The IDEA’s Standards

The IDEA requires states to provide every disabled child with a “free appropriate

public education.” 20 U.S.C. § 1412(a)(1)(A). Section 1401(9) of the IDEA defines “free

appropriate public education” as “special education and related services” that:

(1) have been provided at public expense, under public supervision and

direction, and without charge; (2) meet the standards of the State

educational agency; (3) include an appropriate preschool, elementary

school, or secondary school education in the State involved; and (4) are

provided in conformity with the individualized education program required

under section 1414(d) of this title.

20 U.S.C. § 1401(9) (emphasis added).

To receive financial assistance under the IDEA, a state must provide FAPE “to all

children with disabilities residing in the State between the ages of 3 and 21, inclusive.” 20

U.S.C. § 1412(a)(1)(A). This means the state must provide an education that confers a

“meaningful benefit” to each child with a disability. Ridley Sch. Dist. v. M.R., 680 F.3d

260, 268 (3d Cir. 2012) (citing D.S., 602 F.3d at 556). The benefit must be substantial,

not minimal. Endrew F., 137 S. Ct. at 1001. To achieve a meaningful benefit, the LEA

must fashion an IEP uniquely tailored for the child. Id. at 991 (citing 20 U.S.C. §§

1401(9)(D), 1412(a)(1)). The IEP is the roadmap for the child’s educational progress. It

must be reasonably calculated to enable the child to make appropriate progress “in light

of the child’s circumstances.” Id. at 999. It must “set out a plan for pursuing academic and

functional advancement.” Id. (citing 20 U.S.C. §§ 1414(d)(1)(A)(i)(I)-(IV)).

The core of the IDEA is the collaborative process among the parents and the

school officials to fashion the IEP. Id. at 994 (citing 20 U.S.C. § 1414). This collaboration

among the parents and the educators ensures careful consideration of the child’s

individual circumstances. Id.

In developing the IEP, an LEA is not required to provide a specific program or

employ a specific methodology requested by the parent. K.C. ex rel. Her Parents v.

Nazareth Area Sch. Dist., 806 F. Supp. 2d 806, 813-14 (E.D. Pa. 2011) (citations omitted).

Although an LEA is required to provide FAPE to a disabled child, it is not required to

provide the best possible education to maximize educational benefits. See Rowley, 458

U.S. at 199 (explaining that the IDEA does not require “the furnishing of every special

service necessary to maximize each handicapped child’s potential”); Polk v. Cent.

Susquehanna Intermediate Unit 16, 853 F.2d 171, 178 (3d Cir. 1988). Nor is an LEA

required to provide each disabled child with opportunities substantially equal to those

afforded to children without disabilities. Endrew F., 137 S. Ct. at 1001 (citing Rowley, 458

U.S. at 198).

The IDEA dictates that children with disabilities must be educated in the “least

restrictive environment.” It provides:

To the maximum extent appropriate, children with disabilities . . . are

educated with children who are not disabled, and special classes, separate

schooling, or other removal of children with disabilities from the regular

educational environment occurs only when the nature or severity of the

disability of a child is such that education in regular classes with the use of

supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. § 1412(a)(5)(A).

The Third Circuit has interpreted the LRE requirement to mandate that “a disabled

child be placed in the least restrictive environment that will provide a ‘meaningful

educational benefit.’” T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 578 (3d Cir.

2000). “To that end, disabled children shall be, ‘to the greatest extent possible,

satisfactorily educate[d] . . . together with children who are not disabled, in the same

school the disabled child would attend if the child were not disabled.’” L.E. v. Ramsey Bd.

of Educ., 435 F.3d 384, 390 (3d Cir. 2006) (quoting Carlisle Area Sch. Dist. v. Scott P.,

62 F.3d 520, 535 (3d Cir. 1995)). See also 34 C.F.R. § 300.116(c), (e) (“Unless the IEP

of a child with a disability requires some other arrangement, the child is educated in the

school that he or she would attend if nondisabled . . . . A child with a disability is not

removed from education in age-appropriate regular classrooms solely because of needed

modifications in the general education curriculum.”). The LRE requirement applies equally

to the placement of preschool children. Kingwood, 205 F.3d at 579-80 (quoting 34 C.F.R.

§ 300.552) (“Of course, a district that does not operate a regular preschool program is not

required to initiate one simply in order to create an LRE opportunity for a disabled child.

However, the school district is required to take into account a continuum of possible

alternative placement options when formulating an IEP, including ‘[p]lacing children with

disabilities in private school programs for nondisabled preschool children.’”). See also

L.G. ex rel. E.G. v. Fair Lawn Bd. of Educ., 486 F. App’x 967, 973 (3d Cir. 2012) (citations

omitted).

When an LEA fails to provide FAPE and the parents enroll the student in an

appropriate private school, the LEA must reimburse the parents for the private school

tuition. Ramsey, 435 F.3d at 389-90 (citations omitted). The pertinent regulation provides

that: “If the parents of a child with a disability . . . enroll the child in a private preschool,

elementary school, or secondary school without the consent of or referral by the public

agency, a court or a hearing officer may require the agency to reimburse the parents for

the cost of that enrollment if the court or hearing officer finds that the agency had not

made FAPE available to the child in a timely manner prior to that enrollment and that the

private placement is appropriate.” 34 C.F.R. § 300.148(c).

The Supreme Court has articulated a three-step analysis to determine whether

parents are entitled to tuition reimbursement under the IDEA. See Burlington, 471 U.S. at

369-70, 373-4; Carter, 510 U.S. at 12-16. Under the Burlington-Carter analysis, the court

must determine whether: (1) the LEA’s proposed IEP constituted an offer of FAPE; (2)

the private school placement was appropriate; and (3) equitable considerations weigh for

or against reimbursement.

The Section 1412 Exception

Although the IDEA envisions FAPE for all children with disabilities between the

ages of three and 21, states are not obliged to offer FAPE for children “aged 3 through 5

and 18 through 21 in a State to the extent that its application to those children would be

inconsistent with State law or practice.” 20 U.S.C. § 1412(a)(1)(B)(i). In other words, by

legislation or practice, states may opt out of providing FAPE to children in those age

groups without jeopardizing federal funding.

The Third Circuit has interpreted this exception as requiring states to provide an

educational benefit to children with disabilities in these age groups only if the same benefit

is available to children without disabilities in the same age group. See Wexler v. Westfield

Bd. of Educ., 784 F.2d 176, 183 (3d Cir. 1986) (citing Helms v. Indep. Sch. Dist. No. 3 of

Broken Arrow, Tulsa Cnty., Okl., 750 F.2d 820, 823 (10th Cir. 1984)).102 The First, Sixth,

Seventh and Ninth Circuits have held this section means that if public agencies provide

education to non-disabled children in these age groups, they must make FAPE available

to at least a proportionate number of disabled children of the same age. K.L. v. Rhode

Island Bd. of Educ., 907 F.3d 639, 642 (1st Cir. 2018); O’Donniley v. Metro. Pub. Sch.,

919 F.2d 141 (6th Cir. 1990); Timms on Behalf of Timms v. Metro. Sch. Dist. of Wabash

Cty., Ind., 722 F.2d 1310, 1314 (7th Cir. 1983); E.R.K. ex rel. R.K. v. Hawaii Dep’t of

Educ., 728 F.3d 982, 987 (9th Cir. 2013). In short, the state must provide disabled children

the same benefits it provides to non-disabled children in the same age group.103

102 The regulations the court relied upon have since changed. The 1984 version of 34 C.F.R. §

300.300(b)(2) stated: “[i]f a public agency provides education to non-handicapped children in any of these

age groups, it must make a free appropriate public education available to at least a proportionate number

of handicapped children of the same age.” The current version of this regulation, codified in 34 C.F.R. §

300.102(a)(1), does not contain this language. However, courts in other circuits continue to interpret Section

1412 as requiring the state to make the same benefits available to disabled children as non-disabled

children. See K.L. v. Rhode Island Bd. of Educ., 907 F.3d 639, 642 (1st Cir. 2018); E.R.K. ex rel. R.K. v.

Hawaii Dep’t of Educ., 728 F.3d 982, 987 (9th Cir. 2013); R.P.-K. v. Dep’t of Educ., Hawaii, 817 F. Supp.

2d 1182, 1193 (D. Haw. 2011); A.R. v. Connecticut State Bd. of Educ., No. 16-1197, 2020 WL 3086032, at

*4 (D. Conn. June 10, 2020).

103 The legislative history supports this conclusion. The Senate Report accompanying the 1975

version of the IDEA explains that states must provide special education to children with disabilities aged

three-to-five and 18-to-21 if they provide public education to non-disabled children in those age groups.

See S. Rep. No. 94–168, at 19 (1975).

Despite the opt-out provision in Section 1412, there is nothing in the IDEA

prohibiting a state from providing a benefit to children with disabilities that it does not

make available to children without disabilities. Although Pennsylvania can elect not to

provide preschool to children with disabilities as long as it does not provide preschool to

children without disabilities, it can still choose to provide preschool to children with

disabilities and not to children without disabilities. In fact, Pennsylvania LEAs often

choose to do so. It is undisputed that Pennsylvania LEAs may offer specialized

preschools to disabled children even though they do not offer universal, public preschool

to neurotypical children. Consistent with its own practice and the practice of other LEAs,

MCIU offered K.S. placement at Friendship Academy and Next Step Classroom,

specialized preschools.104

Parents contend that LEAs are obligated to provide typical preschool for children

with disabilities when necessary for them to receive FAPE. MCIU counters that

Pennsylvania law mandates only services and not placement in a typical preschool.

Parents argue Pennsylvania law has fully adopted the IDEA standards which require

funding for typical preschool for children with disabilities when it is necessary to provide

FAPE.

To determine whether MCIU is obligated to provide tuition for placement of a

disabled child in a typical preschool, we shall review the EISSA, the Pennsylvania

104 At oral argument, MCIU’s counsel testified:

“Q: As I gather, MCIU will pay for transportation of a disabled child to a specialized

preschool, correct?

A: Yes.

Q: Why is that?

A: Because – the short answer is because they’re funding the preschool. They are

providing . . . . the placement and the service. If the student is placed at a specialized

placement, the IU is providing that placement.”

Oral Arg. Tr. at 54:4-17.

Administrative Code adopting the Code of Federal Regulations, and the PDE guidance

documents. We look to see whether Pennsylvania has clearly opted out of providing

FAPE to children in the three-to-five age group.

Tuition Reimbursement

The Third Circuit has not addressed what states must do to opt out of providing

FAPE to the three-to-five and 18-to-21 age groups. Nor has any other circuit. A district

court in Hawaii has held that Section 1412 requires a clear state law to exclude these age

groups from the FAPE requirement. See B.T. ex rel. Mary T. v. Dep't of Educ., State of

Hawaii, 637 F. Supp. 2d 856, 863 (D. Haw. 2009) (“The State is only allowed to deviate

from the requirements of the IDEA if there is a clear State law that says otherwise”); see

also St. Johnsbury Acad. v. D.H., 240 F.3d 163, 169 (2d Cir. 2001) (finding a New York

statute providing only “person[s] over five and under twenty-one years of age” are eligible

to receive a public education was sufficient to deviate from the IDEA standards under the

exception).

Pennsylvania law does not expressly except providing FAPE to the three-to-five

age group. Nor is it clear that it has opted out of providing it. Because Pennsylvania does

not provide universal preschool for children without disabilities, one could conclude that

it need not provide it for children with disabilities. But, although the relevant statutes and

regulations do not clearly define what obligations an LEA has with respect to providing

preschool for disabled children, they suggest that an LEA, in certain circumstances, has

an obligation to provide placement of a disabled child in a typical preschool when

necessary to provide FAPE in the LRE.

The EISSA established a statewide system of programs to provide appropriate

“early intervention services” to infants, toddlers and eligible young children. 11 P.S. § 875-

301.105 “Early intervention services” are developmental services provided in the least

restrictive environment appropriate to the child’s needs. 11 P.S. § 875-103. Section 875-

103 defines “early intervention services” as developmental services that are provided in

compliance with Part B of the IDEA106 “as it applies to preschool children.” Id. Part B of

the IDEA provides for FAPE for all students between the ages of three and 21,

inclusive.107 The EISSA does not list any carve-outs or exceptions from Part B.

The EISSA is about providing early intervention services. Although it discusses the

underlying placement in reference to the LRE requirement, it does not mention anything

about tuition or the costs of the underlying placement. Nonetheless, it contemplates

providing those services to disabled children in a preschool, including a typical one if that

school is the LRE. It requires that “children who will be served in a non-home-based

setting must, to the maximum extent consistent with the child’s abilities, receive early

intervention services in a setting with nonhandicapped children.” Id.

105 As a three-year-old child with autism, K.S. qualifies as an “eligible young child” under EISSA.

11 P.S. § 875-103 (defining “eligible young child” as a child between three years of age and the minimum

age established by the school district for admission to first grade with a disability and developmental delay,

including autism).

106 Part A of IDEA sets the foundation for the act, including defining key terms and outlining the

act’s purpose. 20 U.S.C. § 1400 et seq. Part B covers education for children with disabilities from ages

three to 21. 20 U.S.C. § 1411 et seq. Part C addresses education for children from birth to age three. 20

U.S.C. § 1431 et seq. This case implicates only Part B.

107 Part B ensures that all children with disabilities receive FAPE that emphasizes “special

education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). “Special

education” is defined as specially designed instruction to meet the unique needs of a child with a disability.

20 U.S.C. § 1401(29). “Related services” is defined as “transportation, and such developmental, corrective,

and other supportive services . . . as may be required to assist a child with a disability to benefit from special

education.” 20 U.S.C. § 1401(26)(A).

Although the EISSA recognizes the importance of immersion with neurotypical

children when providing services to disabled preschool children, it does not answer the

question of whether tuition reimbursement is available for typical preschool placements.

Yet, the EISSA does not preclude reimbursement for private preschool tuition when

necessary to provide FAPE.

To satisfy the IDEA requirements, the Pennsylvania Administrative Code adopted

the federal regulations codified in 34 C.F.R. Part 300 in its entirety. See 22 Pa. Code §

14.102(a)(1). Section 14.102 specifically adopts C.F.R. § 300.148 relating to parents’

placement of children in private schools when FAPE is at issue. 22 Pa. Code §

14.102(a)(2)(xvi). Although 20 U.S.C. § 1412(a)(10)(C), the IDEA section authorizing

C.F.R. § 300.148, only lists “private elementary school or secondary school” as

placements for which tuition reimbursement may be available, C.F.R. § 300.148

specifically provides for tuition reimbursement for all levels of school, including preschool.

See 34 C.F.R. § 300.148(c).

When it adopted C.F.R. Part 300, the Administrative Code invoked one of the

exceptions available in C.F.R. § 300.102(a)(2), which are modeled after Section 1412. It

excludes from FAPE incarcerated children aged 18 through 21. See 22 Pa. Code §

14.102(a)(2)(x); Pennsylvania Department of Education, “Policies and Procedures Under

34 CFR §§ 300.101-300.176” at 3 (July 1, 2018), https://www.education.pa.gov/

Documents/K-12/Special%20Education/IDEIA-IDEA/IDEA-B%20Policies%20and%20

Procedures%202018.pdf (“PDE Policies and Procedures”).108 There is no exception for

108 The PDE Policies and Procedures state:

As described under § 300.102, there are no exceptions for age range [sic] of 3 through 21,

unless the following exist: It is PDE policy with respect to children aged 18 through 21 that

FAPE is not required for students with disabilities who, in the last educational placement

preschool students, ages three-to-five. See 22 Pa. Code § 14.102(a)(2)(x); PDE Policies

and Procedures at 3, § 300.102.

Pennsylvania’s decision to except older incarcerated children from FAPE as

provided in § 300.102(a)(2) suggests Pennsylvania, knowing how to opt out, did not

choose to preclude children in the three-to-five age group from FAPE. See Barnhart v.

Peabody Coal Co., 537 U.S. 149, 168 (2003) (the canon expressio unius est exclusio

alterius applies “when the items expressed are members of an ‘associated group or

series,’ justifying the inference that items not mentioned were excluded by deliberate

choice”); Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020) (quoting Atcovitz v.

Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1223 (Pa. 2002)) (“Under the doctrine of

expressio unius est exclusio alterius, ‘the inclusion of a specific matter in a statute implies

the exclusion of other matters.’”); see also Kmonk-Sullivan v. State Farm Mut. Auto. Ins.

Co., 788 A.2d 955, 962 (Pa. 2001) (“[A]lthough one is admonished to listen attentively to

what a statute says; one must also listen attentively to what it does not say.”) (citations

omitted).109 Reading the Administrative Code together with C.F.R. Part 300, which it

adopted, leads to the conclusion that Pennsylvania deliberately did not preclude

placement and tuition reimbursement in typical preschools for disabled students.

The Administrative Code also incorporates the LRE requirements. Chapter 14 of

the Administrative Code is dedicated to Special Education Services and Programs. It

prior to their incarceration in an adult correctional facility were not determined eligible for

special education and related services and did not have an IEP.

PDE Policies and Procedures at 3-4, § 300.102.

109 The Third Circuit has used rules of statutory construction to interpret regulations. See, e.g.,

Acceptance Ins. Co. v. Sloan, 263 F.3d 278, 283 (3d Cir. 2001) (citations omitted); Pennsylvania Fed’n of

Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d 337, 351 (3d Cir. 2007) (citations omitted); Sekula v.

F.D.I.C., 39 F.3d 448, 453 (3d Cir. 1994).

adopts C.F.R. § 300.116, which includes placing preschool children with disabilities in the

LRE, in its entirety. 22 Pa. Code § 14.102(a)(2)(xiii); 34 C.F.R. § 300.116(a)(2). The

provisions relevant to this case are grouped under the “Educational Placement" and

“Early Intervention” headings. The “Educational Placement” section includes four sub-

sections, one of which covers the LRE requirements. 22 Pa. Code § 14.143 et seq. The

LRE sub-section provides that each school entity110 shall ensure that “[t]o the maximum

extent appropriate, and as provided in the IEP, the student with a disability is educated

with nondisabled peers.” 22 Pa. Code § 14.145(1). LEAs are also required “to provide

access to a full continuum of placement options.” 22 Pa. Code § 14.145(5). Significantly,

“[a] student may not be removed from or determined to be ineligible for placement in a

regular education classroom . . . solely because educating the student in the regular

education classroom would necessitate additional cost or for administrative

convenience.” 22 Pa. Code § 14.145(4). Though these sub-sections are codified under

“Educational Placement,” a distinct heading from “Early Intervention,” and they do not

discuss preschool or early intervention programs, there is nothing in the Administrative

Code suggesting that these sub-sections are limited to school-age children.

The “Early Intervention” section includes a sub-section titled “Range of Services.”

22 Pa. Code § 14.155. This sub-section addresses the services available to meet the

needs of children eligible for early intervention. Section 14.155 provides that “options may

be made available directly by early intervention agencies or through contractual

arrangements for services and programs with other agencies in the community, including

110 “School entity” is defined as “[a] local public education provider such as a school district, area

vocational-technical school or intermediate unit but excluding charter schools and cyber charter schools

under Article XVII-A of the School Code.” 22 Pa. Code § 14.101.

preschools[.]” 22 Pa. Code § 14.155(a).111 This regulation reiterates that the LRE

requirements apply to early intervention programs: “The IEP team shall recommend early

intervention services to be provided in the least restrictive environment with appropriate

and necessary supplementary aids and services.” 22 Pa. Code § 14.155(b). It states that

“[t]he placement options may include one or more of the following”: “early childhood

environment,” defined as “[s]ervices provided in a typical preschool program with

noneligible young children,” and “early childhood special education environment,” defined

as “[s]ervices provided in a special education preschool program funded by the early

intervention agency.” 22 Pa. Code § 14.155(b)(1)-(2). Section 14.155 does not explicitly

address whether an LEA must fund a typical preschool as part of the early intervention

program. Id.

None of the Pennsylvania statutes or regulations address paying tuition or the

costs of the underlying placement in a typical preschool. They neither specifically

authorize nor prohibit it. In the absence of clear language to the contrary, the IDEA’s

obligation to provide FAPE for children aged three-to-five applies.

Unlike the statutes and regulations, the PDE’s policy documents are clear, leaving

no doubt that disabled children from three-to-five are entitled to FAPE. In July 2018, in

compliance with C.F.R. Part 300, the PDE released its “Model Local Educational Agency

(LEA) Policies and Procedures.”112 Citing the Administrative Code as authority for each

section of its Policies and Procedures, the PDE proclaims that Pennsylvania “ensures

111 Although the Administrative Code does not define the term “programs,” the context of the statute

suggests that the term includes educational placement. See, e.g., 22 Pa. Code § 14.155(b)(1)-(2) (referring

to services provided in a “typical preschool program” and a “special education preschool program”).

112 Defs.’ Resp. Ex. A at 1-2.

that all children with disabilities aged 3 years to 21 years of age residing in PA have the

right to a free appropriate public education[.]” PDE Policies and Procedures at 2, §

300.101. The PDE emphasized that, as a matter of PDE policy, “a free appropriate public

education is available to all children residing in the State between the ages of 3 and

21 . . . FAPE is made available to each eligible child residing in the State beginning no

later than the child’s third birthday.” Id.

As does the Administrative Code, the PDE Policies and Procedures make one

exception to FAPE for children between the ages of three and 21. They except

incarcerated children 18 through 21. Id. at 3-4, § 300.102. There is no exception for

children ages three-to-five. They also incorporate C.F.R. §§ 300.116 and 300.148(c),

which specifically apply to preschool children. Id. at 13-14, § 300.116; id. at 32, §

300.148(c).

The PDE Policies and Procedures explicitly allow for a court or hearing officer to

award tuition reimbursement for regular preschool if the placement is necessary to

provide the child FAPE:

If the parents of a child with a disability . . . enroll the child in a private

preschool, elementary school, or secondary school without the consent of

or referral by the public agency, a court or a hearing officer may require the

agency to reimburse the parents for the cost of that enrollment if the court

or hearing officer finds that the agency had not made FAPE available to the

child . . . and that the private placement is appropriate.

Id. at 32, § 300.148 (emphasis added).

This directive is clear. The LEA is responsible for providing a disabled child a

preschool placement if it is necessary to provide FAPE. The PDE Policies and Procedures

do not distinguish between specialized and typical preschools. Moreover, LEAs cannot

deny a disabled child the LRE in a typical preschool for administrative convenience or a

desire to avoid additional costs:

It is PDE’s policy that in determining the educational placement of a child

with a disability, including a preschool child with a disability, each public

agency shall ensure that the placement decision . . . is made in conformity

with the LRE provisions of this section . . . . A child with a disability is not

removed from education in age-appropriate regular classrooms . . . solely

because educating the student in the regular education classroom would

necessitate additional cost or for administrative convenience.

Id. at 13, § 300.116 (emphasis added). In sum, the PDE’s policies and procedures require

an LEA to fund a typical preschool placement if it is appropriate and necessary for the

child to receive FAPE.

The federal guidelines reinforce this notion. The U.S. Department of Education

Office of Special Education and Rehabilitation Services issued a policy document

providing information on special education and related services, including those for

preschool children. This policy document supports the availability of tuition

reimbursement for a private preschool when it is necessary for the disabled child to

receive FAPE and the LEA does not provide public preschool:

Public agencies that do not have an inclusive public preschool that can

provide all the appropriate services and supports must explore alternative

methods to ensure that the LRE requirements are met. Examples of such

alternative methods might include placement options in private preschool

programs or other community-based settings. Paying for the placement of

qualified preschool children with disabilities in a private preschool with

children without disabilities is one, but not the only, option available to public

agencies to meet the LRE requirements. . . . However, if a public agency

determines that placement in a private preschool program is necessary as

a means of providing special education and related services to a child with

a disability, the program must be at no cost to the parent of the child.

“Assistance to States for the Education of Children With Disabilities and Preschool Grants

for Children With Disabilities,” 71 FR 46540-01 (Aug. 14, 2006).

Having examined the federal and Pennsylvania statutes, regulations, and the PDE

policy documents, we conclude that Pennsylvania law has not opted out of providing

funding for a typical preschool if it is necessary for the disabled child to receive FAPE in

the LRE. The relevant statutes and regulations do not clearly and unequivocally opt out

of providing FAPE for disabled children in the three-to-five age group. On the other hand,

the PDE policy documents clearly provide that paying for a disabled child’s placement in

a typical preschool may be appropriate to meet the LRE requirements. Having adopted

the IDEA and regulations in their entirety and not having opted out of the three-to-five age

group, Pennsylvania allows for placement in a typical preschool where necessary to

provide FAPE in the LRE.

There is a dearth of case law in the Third Circuit and Pennsylvania discussing

Section 1412’s exception in the tuition reimbursement context and Pennsylvania’s

obligations to provide typical preschool to students with disabilities. There are a number

of cases where federal courts have applied the Burlington-Carter analysis in situations

where the dispute was between two different specialized preschools. See, e.g., Rose v.

Chester County Intermediate Unit, No. 95-239, 1996 WL 238699, at *1 (E.D. Pa. May 7,

1996).113 There are none addressing tuition reimbursement for a typical preschool

placement.

The only Pennsylvania court to address tuition reimbursement for typical preschool

is Delaware County Intermediate Unit v. Jonathan S., 809 A.2d 1051 (Pa. Commw. 2002).

113 We note that these courts would not have applied the Burlington-Carter standard in their

analyses if tuition reimbursement for preschool, albeit specialized preschool, was never an option in the

first place.

That case did not hold that there is never an obligation to provide placement of a disabled

child in a typical preschool.

In Jonathan S., the parents requested funding for a typical preschool for their child

who was diagnosed with cerebral palsy and associated orthopedic disabilities. Id. at 1053.

DCIU only offered early intervention services at the preschool and refused to pay the

tuition. Id. at 1054. The court held that “for a student to be eligible under IDEA’s definition

of disability, and for DCIU to be responsible for fully funding a student’s pre-school needs

under IDEA, that student must be found to be in need of specially designed instruction.”

Id. at 1056. There was no evidence suggesting that he required specially designed

instruction. Id. In so holding, the court noted that “[u]nder Pennsylvania law, while a

student may be eligible for early intervention services . . . that eligibility does not

necessarily require private pre-school attendance at public expense.” Id. at 1058

(emphasis added). The court concluded that the Pennsylvania General Assembly

intended “to exclude publicly funded private pre-school in cases such as this one, where

a child’s physical disabilities require some early intervention services, but a lack of

cognitive disabilities negate the need for publicly funded pre-school attendance.” Id.

(emphasis added). As this qualifying language makes clear, Jonathan S. does not

preclude public funding for a typical preschool where the preschool child has a cognitive

impairment, like autism. On the contrary, it intimates that an LEA may have to fund a

disabled child’s placement in a typical preschool where circumstances require it.

Tuition reimbursement in unique situations is not new. Courts have recognized that

“Congress contemplated a broad remedy when it gave reviewing courts the discretion to

award ‘appropriate’ relief.” Bucks Cnty. Dep’t of Mental Health/Mental Retardation v.

Pennsylvania, 379 F.3d 61, 72 (3d Cir. 2004). The Third Circuit upheld a reimbursement

award for the time a parent spent providing early intervention services to her own child

after the county refused to provide therapy. Id. In doing so, the Third Circuit recognized

that courts have the power to fashion remedies that are not specifically enumerated in the

IDEA. Id. The court has also awarded compensatory services for students beyond the

age of eligibility in Pennsylvania in certain circumstances. See, e.g., Batchelor v. Rose

Tree Media Sch. Dist., 759 F.3d 266, 278 (3d Cir. 2014) (Noting “[i]n appropriate cases

however, relief under the IDEA may be awarded beyond a student’s twenty-first birthday”

where plaintiff’s age was unknown) (citations omitted); Ferren C. v. Sch. Dist. of Phila.,

612 F.3d 712, 718 (3d Cir. 2010) (granting non-monetary award of compensatory

education to twenty-four year old student); Lester H. by Octavia P. v. Gilhool, 916 F.2d

865, 873 (3d Cir. 1990) (affirming district court’s grant of 30 months of compensatory

education to student beyond age 21). It has even awarded compensatory education for

students who no longer reside in the school district if the circumstances warrant it. See,

e.g., D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 497 (3d Cir. 2012). Given

the willingness of courts to fashion remedies based on the child’s unique circumstances,

a court may grant tuition reimbursement for a typical preschool placement to address a

child’s specific needs and provide him FAPE.

States need not provide FAPE to children in the three-to-five age group where

there is a state practice of not providing it. 20 U.S.C. § 1412(a)(1)(B)(i) (the obligation to

make FAPE available to these age groups does not apply if it is “inconsistent with State

law or practice”). MCIU has presented no testimony or other evidence of state practice

regarding tuition reimbursement for disabled children in typical preschools.114

Here, the only proffered evidence of state practice regarding tuition reimbursement

comes from decisions of Pennsylvania Special Education Hearing Officers.115 These

decisions present no clear, consistent practice in Pennsylvania. On the contrary, they

reveal a split among hearing officers, reinforcing the conclusion that there is none.

In J.H. v. Bucks County Intermediate Unit, the hearing officer held that BCIU was

not required to provide J.H., a preschooler with autism, a typical preschool placement.

ODR 01271/09-10 KE at 2 (Dec. 13, 2010). In so holding, she concluded that a child is

entitled to receive FAPE in any of a wide range of settings, depending on the parents’

choice, but the LEA does not have to fund that environment itself. Id. at 8. She held that

“if the parents of a preschooler freely choose a typical preschool environment, there is no

statutory obligation on the part of the LEA to purchase that environment with public funds.

The LEA’s sole obligation is to provide FAPE in that environment.” Id. The same hearing

officer reached the same conclusion in S.F. v. Montgomery County Intermediate Unit,

ODR 2889/11-12AS at 23-26 (July 3, 2012).

In L.B. v. Delaware County Intermediate Unit and J.D. v. Montgomery County

Intermediate Unit, the hearing officers held the parents were not entitled to tuition

reimbursement for their children’s placement at typical preschools because neither child

114 Oral Arg. Tr. at 21:4-5.

115 Although these decisions are not binding, they are persuasive and serve to illustrate the lack of

Pennsylvania custom and practice. See Batchelor, 759 F.3d at 275 n. 11 (citations omitted) (considering

decisions from Pennsylvania special education hearing officers that have addressed retaliation claims

under the Rehabilitation Act to hold that plaintiffs must exhaust administrative remedies for retaliation claims

related to the enforcement of rights under the IDEA).

required a private preschool placement to receive FAPE. ODR No. 1765/10-11-AS at 1

(July 22, 2011); ODR No. 01524-1011 AS at 2 (May 1, 2011).116 The hearing officers in

both cases noted that LEAs in Pennsylvania are generally not obligated to fund preschool

classroom settings. L.B., ODR Dec. at 4; J.D., ODR Dec. at 9. In both cases, unlike in this

case, nothing suggested that the students required a typical preschool placement to meet

their developmental needs.117 L.B., ODR Dec. at 4-6; J.D., ODR Dec. at 9.

In contrast, the hearing officer in B.D. v. Montgomery County Intermediate Unit

held the parents of a five-year-old child with autism were entitled to tuition reimbursement

for a typical preschool. ODR No. 00062-0910AS/00561-0910AS at 2 (May 8, 2010).

According to the hearing officer, the evidence demonstrated a need for immersion in a

typical preschool environment. Id. at 17-18. The hearing officer referenced a

Pennsylvania Office of Child Development and Early Learning policy118 that provides for

placement in a typical community setting when it is necessary for the student to receive

FAPE. Id. at 18. She stated that a policy against funding private typical preschool settings

without “built in exceptions for the provision of FAPE” would contravene the IDEA. Id. In

reaching her conclusion, the hearing officer stated the following about the relationship

between the LRE and FAPE, specifically regarding autism:

The behavioral, social and communication needs of the student as identified

by the evaluations and the team and the interventions and supports

engineered to address them are inextricably interwoven with and dependent

116 J.D. had a speech and language impairment. ODR Dec. at 3. L.B. was diagnosed with Down

Syndrome. ODR Dec. at 1.

117 In L.B., the hearing officer found the IU’s services could be provided in a variety of settings, and

many of the IEP’s goals did not require a classroom. ODR Dec. at 4-6. In J.D., none of the IU’s evaluation

reports or IEPs stated a need for a preschool program for either cognitive or social development, and the

parents asserted no legal or factual basis for their claim that the IU should reimburse the costs of the typical

preschool. ODR Dec. at 9.

118 The parties did not cite this policy in their briefs in this case.

upon the stimulus, naturally occurring cues and naturalistic teaching

opportunities occurring within the environment where services are

delivered. Particularly with respect to the pervasive nature of the core

deficits common to the diagnosis of autism, and most importantly with

respect to the social skills interventions necessary to the future success of

young children with this diagnosis, it is not possible to parse the ‘service’

from the framework in which they are provided. The provision of supportive

services should not be viewed in a vacuum.

The fundamental core of each IEP goal promulgated by the team requires

as a necessary component the availability of peers and activities promoting

interaction with those peers. The need for adult supervision and facilitation

(teachers) and a ‘place’ to conduct these activities (classroom) is obvious.

Taken together, these components equal a pre-school setting. Failure to

provide the pre-school setting is a failure of FAPE.

Id. In other words, according to the hearing officer in B.D., LEAs in Pennsylvania are not

obligated to fund private preschool for all disabled children, but they may be if it is

necessary in an individual case to provide FAPE for a particular disabled child. Id. at 18-

19.

There is no consensus on the obligation of an LEA to pay tuition for a typical

preschool placement. On one hand, the hearing officer in J.H. and S.F. concluded that

public funding of a typical preschool placement was not an option in Pennsylvania. On

the other hand, the hearing officer in B.D. concluded that the typical preschool was

integral for the child to receive FAPE, obligating the IU to fund it. In L.B. and J.D., the

hearing officers concluded a typical preschool setting was not required on the facts of

those cases, suggesting that tuition reimbursement is not precluded when necessary to

provide FAPE.

Rather than demonstrating a consistent state practice of not providing tuition

reimbursement for placements at typical preschools, these decisions intimate that there

is a practice in favor of it. MCIU has presented no other evidence of Pennsylvania’s

practice regarding tuition reimbursement. Absent a state practice clearly foreclosing

public funding of typical preschools for disabled children when necessary for FAPE, we

cannot conclude that Pennsylvania has clearly opted out of the IDEA’s FAPE

requirements for preschoolers. Indeed, providing FAPE to disabled preschool students is

consistent with Pennsylvania’s policy as expressed in the PDE Policies and Procedures.

We hold that in the particular circumstances of this case, MCIU must reimburse

Parents for K.S.’s placement at Hearts and Hands. To be clear, we do not hold that every

preschool student with special needs is entitled to a typical preschool placement. Not

every student with special needs requires placement at a typical preschool to receive

FAPE. Only where, as here, it is clearly established that the disabled child requires

placement in a typical preschool to receive FAPE is the LEA responsible for tuition.

Transportation

Under the IDEA, LEAs must provide eligible children with FAPE and appropriate

“related services” in the LRE. 20 U.S.C. § 1400(d)(1)(A). Section 1401 provides that “[t]he

term ‘related services’ means transportation, and such developmental, corrective, and

other supportive services . . . as may be required to assist a child with a disability to benefit

from special education.” 20 U.S.C. § 1401(26)(A). Transportation is defined as including:

“(i) Travel to and from school and between schools; (ii) Travel in and around school

buildings; and (iii) Specialized equipment (such as special or adapted buses, lifts, and

ramps), if required to provide special transportation for a child with a disability.” 34 C.F.R.

§ 300.34(c)(16).

Section 875-103 of the EISSA does not discuss transportation. But, it clarifies that

the early intervention services are “not limited” to the services listed in its definitions. 11

P.S. § 875-103. Section 13-1374 of Purdon’s Pennsylvania Statutes explicitly provides

that:

Any exceptional child . . . who is enrolled in a regular class in which

approved educational provisions are made for him, may be furnished with

free transportation by the school district. . . . If free transportation . . . is not

furnished for any exceptional child or any eligible young child as defined in

the [EISSA] who, by reason thereof, is unable to attend the class or center

for which he is qualified, the intermediate unit shall provide the

transportation necessary.

24 P.S. § 13-1374.

Because placement at the typical preschool is appropriate for K.S. to receive

FAPE, K.S. is qualified for the typical preschool. Given that K.S. is an eligible young child

under the EISSA and is qualified for Hearts and Hands, Section 13-1374 mandates that

MCIU provide K.S. with transportation.

As with our holding covering tuition, MCIU’s obligation to provide transportation to

a typical preschool is limited to the specific circumstances of this case. K.S. requires

placement at a typical preschool due to the unique circumstances of his autism diagnosis

and his educational needs. Under Pennsylvania law, K.S. is entitled to receive

transportation to his typical preschool.

Conclusion

The IDEA standards and Pennsylvania statutes, regulations and policy documents

demonstrate that tuition reimbursement for a private typical preschool placement is

appropriate in K.S.’s circumstances because that educational environment is necessary

to provide FAPE. Additionally, MCIU must transport K.S., as an eligible young child under

the EISSA, to his placement at Hearts and Hands. Therefore, we shall grant Parents’

motion for judgment on the administrative record and deny MCIU’s cross-motion.