by Dennis McAndrews, Esq.
In June, a federal judge in Pennsylvania agreed with McAndrews Law Offices in its pursuit of tuition reimbursement and compensatory education on behalf of a child who did not receive an appropriate education in second and third grades. This decision is significant because the court emphasized that even if the student makes academic progress, it is not dispositive of whether a student received FAPE. The court also reiterated that IDEA’s mandate includes behavioral, social, and emotional progress at levels necessary to prepare students for further education, employment, and independent living. The court also noted that the failure of the school district to provide an appropriate positive behavior support plan can itself render an IEP inappropriate and result in an award of compensatory education.
In its holding, the court rejected the district’ s claim that it provided services which were not included in the IEP, and that those additional services should be considered in determining whether FAPE was provided. The court noted that “the measure and adequacy of an IEP can only be determined as of the time it is offered to the student… and the appropriate inquiry is into the nature of the program actually offered in the written plan”. Finally, in granting tuition reimbursement to the family for the private school program which met the child’s needs, the court rejected the school district’ s attempt to terminate the right to tuition reimbursement late in the school year when it offered a “new and improved” IEP. The court stated that “IDEA would not require the parents to either (a) uproot the student from his then–current placement or (b) forfeit their right to tuition reimbursement. Such an end–of–year change would be difficult for any child.”
