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July 9, 2021 | ISSUE #14



Montgomery County Intermediate Unit No. 23 v. K.S. by and through his parents, K.S. and F.S., 2021 WL 2654144 (E.D. Pa. 2021)

     FAPE • Placement in Typical Preschool
     Tuition Reimbursement • Private School

The District Court held 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 a free and appropriate public education (FAPE) in the least restrictive environment. K.S. is eligible for preschool special education services under the category of “autism.” K.S. received “birth to three” early intervention services from Montgomery County Department of Health and Human Services (HHS) until he transitioned to services provided by Montgomery County Intermediate Unit (MCIU) when he turned age 3 in January 2019. HHS recommended placement in a typical preschool where he would receive early intervention services, and he was enrolled in a preschool and he received special education services provided by either his parents’ insurance or HHS and MCIU. In early January, MCIU held an individualized education program (IEP) meeting with the parents. Although the proposed IEP contemplated special education and related services for K.S. at the preschool, his parents rejected the IEP because it did not provide tuition or transportation, and they also disagreed with the proposed level of services. The parents rejected a second IEP because it did not provide tuition or transportation, since MCIU has a policy of providing transportation only to preschools designed for children with specialized needs. MCIU was willing to provide transportation for K.S. to a specialized preschool, but not to the typical preschool he was attending. The parents considered two specialized preschools recommended by MCIU but rejected both for various reasons. The parents subsequently rejected more IEPs because they offered placements at the two rejected preschools. Ultimately, they filed a due process complaint and the hearing officer determined that placement at the typical preschool was appropriate for K.S. and that the parents were entitled to tuition reimbursement. He also concluded that transportation was necessary for K.S. to receive FAPE based on the Burlington-Carter analysis for reimbursements for tuition and related services. MCIU appealed the decision and both parties filed motions for judgment on the administrative record.
The court started by addressing the standards set forth in the Individuals with Disabilities Education Act (IDEA) regarding FAPE, particularly with regard to preschool children. The court also reviewed the parameters for reimbursement of private school tuition, focusing specifically on the three-step analysis set forth in the Burlington-Carter decision. The Section 1412 Exception, which allows states to opt out of providing FAPE to children aged 3 to 5 years old without jeopardizing federal funding, was also reviewed. In this regard, the court analyzed Pennsylvania law to determine if the Commonwealth had expressly opted out and found that it wasn’t clear. Finally, the relevant Pennsylvania Department of Education policy documents were examined. In the end, the court found that Pennsylvania adopted the IDEA and regulations in their entirety and did not opt out of the 3-to-5 age group, meaning that Pennsylvania allows for placement in a typical preschool where necessary to provide FAPE in the least restrictive environment. After reviewing case law in the Third Circuit, the court held that MCIU must reimburse K.S.’s parents for placement in a typical preschool and must provide transportation.
Click here for the opinion.

Maggie J., by and through her parents, Richard J. and Kim J. v. Donegal School District, 2021 WL 2711531 (E.D. Pa. 2021)

     FAPE • Compensatory Education

The District Court affirmed the hearing officer’s rejection of the plaintiff’s claims that Donegal School District (Donegal) failed to provide a free appropriate public education (FAPE) to Maggie J. Maggie was age 2 1/2 when she and her three biological siblings were adopted together following separate foster placements. In December 2015, Maggie’s mother formally requested evaluation for speech, processing disorder, general IQ testing and an adaptive behavior assessment. The evaluation did not demonstrate a specific learning disability because her “achievement [was] commensurate with and higher than her ability given her IQ score.” Because Maggie qualified for speech and language services based on her expressive language skills, Donegal created a “speech only” individualized education plan (IEP) for her in March 2016.
In April 2016, Maggie’s parents began having her privately assessed for attention-deficit/hyperactivity disorder (ADHD). By August 2016, Maggie had been diagnosed with reactive attachment disorder (RAD) and oppositional defiant disorder (ODD), and her providers were still considering diagnoses of separation anxiety disorder and ADHD. Maggie’s first grade teacher and mother were in almost daily contact over email, with her teacher reporting the details of Maggie’s in-school behavior and her mother following up with consequences at home. By early October 2016, Maggie’s mother and teacher were discussing whether and how to obtain a therapeutic support services (TSS) aide to help Maggie in school. By late October 2016, Maggie’s behavior was beginning to warrant not just redirection but discipline.
In December 2016, Maggie was formally evaluated for a therapeutic support staff (TSS) aide and also began family-based therapy. Maggie’s parents refused to sign a March 3, 2017 Notice of Recommended Educational Placement (NOREP) that would have continued to provide only the lowest level of speech and language support. On March 23, 2017, another “speech only” IEP that did not provide Extended School Year (ESY) services, was put in place for Maggie. Maggie obtained a TSS aide as a medical benefit, rather than through Donegal, and Maggie’s teacher coordinated with the TSS aide and Maggie’s private therapist to ensure that Maggie was receiving consistent behavioral support. Maggie demonstrated a series of negative behaviors throughout early 2017. She was evaluated and found to meet “the eligibility criteria for emotional disturbance” and to have mastered all the speech goals in her prior IEPs. Maggie’s IEP team agreed to wait until the following year to revise her IEP in response to the reevaluation report, when it could be designed by the second grade team who would be responsible for its implementation. When the revised second grade IEP was put in place, Maggie was hospitalized. On September 28, 2017, Maggie began mental health treatment with Pennsylvania Counseling Services (PCS). Meanwhile, her teachers charted her behavior, and improvements were noticed. Maggie’s mother testified that she doubted the accuracy of the behavior charts. In June 2018, Maggie began to undergo an independent educational evaluation (IEE) that included in-school observation and testing. Additionally, PCS was seeing improvements for Maggie and a June 2018 PCS evaluation noted that Maggie had “increased her compliance at school and home significantly during the school year,” although she still struggled with transitions. She gradually eliminated time with her TSS aide at school because “Maggie did not respond to the TSS at school.” In August 2018, Maggie transitioned from Donegal Primary School, which runs through second grade, into Donegal Intermediate School, which includes third through sixth grades. The IEP team met in September 2018 and set up a new IEP for Maggie. Maggie’s parents refused to sign it. Maggie’s mother testified that the September 2018 was “a good start,” but that “it didn’t have enough supports” for Maggie. Throughout the fall of her third grade year, Maggie’s teacher continued to chart her behavior and PCS continued to see improvement. Ultimately, Maggie’s parents built a new home outside of Donegal and Maggie was not provided ESY services in the summer of 2019 and did not return to Donegal.
Maggie’s parents initiated litigation arguing that Donegal owed Maggie compensatory education for failing to provide numerous services to Maggie during her time at Donegal. The hearing officer limited Maggie’s potential damages to those accruing in the two years before the suit was filed because of the statute of limitations for Individuals with Disabilities Education Act (IDEA) claims. The hearing officer concluded that Maggie was not denied FAPE with respect to her behavioral learning because Donegal “had no reason to expect [occurrences] before they happened” and “[Donegal’s] response was appropriate and consistent with IDEA mandates.” The court agreed with this determination. Additionally, the court found that Donegal’s “speech only” IEP did not violate Maggie’s right to FAPE. The court also concurred with the hearing officer’s finding that Donegal did not deny Maggie a FAPE by failing to specifically accommodate an ADHD diagnosis with an offer of ESY services.
Click here for the opinion.


Thank you to all who plan to or who have contributed recent or older but useful arbitration opinions and awards.


Nathanial A. Barbera, Esq.
We only recently became aware that our colleague Nathaniel Barbera, of Somerset, PA, passed away last year at age 91. Nathaniel was a member of the Pennsylvania School Board Solicitors Association in our association’s very early years, and his law partners continue to serve as solicitors to public schools. We offer our belated condolences to his family and to the members of the law firm he founded, Barbera Law. For more information about Nathaniel’s family, life and career, his obituary can be found at this link:

Essentials of School Board Secretary Service
An updated version of Essentials of School Board Secretary Service, formerly named School Board Secretaries Handbook, is now available to members in the Resources section of myPSBA. In a quick-reference format, the guide outlines the key responsibilities and legal requirements of the position and provides applicable resources in each section. For the first time, it is being offered at no cost as a complimentary member benefit.


Save the Date: School Law Workshop - September 27, 2021
The School Law Workshop on Monday, September 27 will be an in-person event, as planned, at Kalahari Resorts & Conventions in the Pocono Mountains. More information to come!


The Continuing Legal Education (CLE) Distance Learning area of the PSBA website and distance learning platform has gone live and is now available here! This spring, PSBA concluded a 12-week series of CLE webinars for attorneys. Recordings of these webinars can be accessed at any time, at the convenience of the participant. Most recorded programs provide one CLE credit hour. A list of currently available programs that can be purchased for viewing and credit can be found here.

Questions? Contact PSBA Legal Services staff at


For questions about Pennsylvania School Board Solicitors Association (PSBSA) membership status and dues invoices, as well as about the PSBSA officers, board of directors, bylaws and other governance information, please call Stuart Knade at (800) 932-0588, ext. 3377, or email him at

The Solicitors Association is looking forward to the upcoming year of programs and dissemination of information regarding legal developments in school law. If you have ideas for legal programs, please send the ideas to your regional director or Stuart Knade or Linda Randby.

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School Board Solicitors Association Officers

John G. Audi, Esq., President
Rachel K. Lozosky, Esq., President-Elect
Benjamin L. Pratt, Esq., Secretary
Vincent L. Champion, Esq., Immediate Past-President

Legal Services Team

Stuart L. Knade, Esq.
Linda J. Randby, Esq.
Jo Mundis
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