July 2021 — 

The MLO Minute: By Michael Connolly, Esq., Supervising Partner of our Special Education Department —

For years now, many Intermediate Units (“IUs”) throughout Pennsylvania have taken the position, based at least in part on several older, misguided Pennsylvania Hearing Officer Decisions, that under no circumstances were IU’s responsible for typical preschool tuition for students eligible under the Individuals with Disabilities Education Act (“IDEA”). The argument was premised on a provision in the IDEA that allowed states to opt out of providing FAPE — Free and Appropriate Public Education — to children between the ages of 3 and 5, where the state did not provide preschool services to non-disabled peers. Because Pennsylvania does not provide preschool for neurotypical children, IUs argue that Pennsylvania is not obligated to provide typical preschool under the IDEA opt out provision.

The above argument has seemed to carry the day in Pennsylvania — until recently. The family of an IDEA-eligible early intervention student filed a Due Process Hearing Complaint in October of 2019 challenging the Montgomery County Intermediate Unit’s (“MCIU”) offer of FAPE that provided for certain services at the student’s typical preschool but did not include tuition or transportation for the preschool. The Hearing Officer, applying the traditional tuition reimbursement analysis, ruled in favor of the family, and the MCIU appealed. On June 29, 2021, Judge Savage of the United States District Court for the Eastern District of Pennsylvania, in a thorough and well thought out opinion, rejected the MCIU’s arguments and held that Pennsylvania did not opt out of providing FAPE to children ages 3 to 5 and that IUs’ are obligated to fund typical preschool placements for IDEA-eligible students where the placements are necessary for FAPE.

Further appeal in this case is certainly possible, and MLO will report any such developments. However, the decision as it stands makes clear that an IU can be responsible for typical preschool tuition. Our Special Education Department here at McAndrews, Mehalick, Connolly, Hulse and Ryan P.C. possesses decades of experience handling similar matters. If we can be of assistance, do not hesitate to call 610-648-9300 or CLICK HERE TO CONTACT US!