Montgomery Cnty. Intermediate Unit No. 23 v. K.S.
| Decision Date | 29 June 2021 |
| Docket Number | CIVIL ACTION NO. 20-2330 |
| Citation | 546 F.Supp.3d 385 |
| Parties | MONTGOMERY COUNTY 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 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Timothy E. Gilsbach, Fox Rothschild, LLP, Blue Bell, PA, for Montgomery County Intermediate Unit No. 23.
Caryl A. Oberman, Leona Z. Goldshaw, Law Offices of Caryl Andrea Oberman, LLC, Willow Grove, PA, for K.S., F.S.
Savage, District Judge 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 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.
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
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
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
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., 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
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 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, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) ; Florence County Sch. Dist. v. Carter , 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (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
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 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...
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