first prong required it to consider three additional factors: (a) the steps the school has taken to include the child, (b) a comparison of the educational benefits of a regular versus a segregated class, and (c) the possible negative effects of inclusion on other children in the class. See Oberti, 995 F.2d at 1216. With regard to the first factor, the Panel stated that Lower Merion had appropriately included Jonathan in regular classes by providing a special education teacher in addition to the regular education teacher, and had also provided small group reading and speech and language support.
With regard to the second factor, the Panel noted the progress Jonathan had made in his classes, and with regard to the third factor, the Panel concluded that it was not at issue since no one had testified that Jonathan was disruptive or in any way negatively affecting the other students.
The Panel then observed that inspite of the parent's assertion that they had chosen to "waive" the IDEA's mainstreaming provisions, there was no such waiver under federal law.
Finally, the Panel dismissed the parent's contention that Lower Merion had failed to discern Jonathan's impairment, stating instead that the proposed IEP's goals were based on behaviors and skills observed by the multi-disciplinary team that is responsible for evaluating students who fall under the parameters of IDEA, and that the IEP adequately addressed Jonathan's problems.
Initially, we note our agreement with the Appeals Panel's analysis of the factors delineated in Oberti and we do not find it necessary to repeat it. Nevertheless, we have made other observations of our own.
First, we note that the recommendations made by Drs. Young and Slap-Shelton, can be implemented in an inclusive placement. For example, Dr. Young recommends that Jonathan be given preferential seating close to the teacher and away from noisy children, that teachers speak slowly and distinctly, and that Jonathan be given additional time to complete assignments. With regard to Dr. Slap-Shelton, we observe that even though she recommends a segregated placement for Jonathan, she also included steps that Lower Merion could take should Jonathan remain in an inclusive program. In addition, she indicated while testifying that her recommendations were intended to enable Jonathan to function at an optimal level. Moreover, she admitted that it was possible for Jonathan, if he received all that she recommended, to achieve the same progress being educated in an inclusive setting as he could in a self-contained placement. Second, we note that in arguing that Lower Merion's failure to diagnose Jonathan's dyslexia proves that the school district's IEP could not possibly be appropriate, the parents failed to address the fact that many of the recommendations in the IEP mirror those of the parents' witnesses. For example, Dr. Slap-Shelton's recommendations that Jonathan be allowed to use a calculator, that he receive extra time on tests, and that he receive graphic visual instruction were already recommended in the April 20, 1995 IEP. In addition, Dr. Young's recommendations that Jonathan receive preferential seating were also part of the IEP. We therefore cannot determine as a matter of law that Lower Merion's failure to test for and diagnose Jonathan's dyslexia is fatal.
Third, contrary to the parent's assertions, Lower Merion did perform testing on Jonathan, and the proposed IEP is not based solely on anecdotal information. For example, Ms. Granite testified that Jonathan was given several tests, including, the Weschler Individual Achievement Test, a Qualitative Reading Inventory and the Woodcock Johnson Reading Mastery Test. Accordingly, after viewing the evidence in its entirety, we conclude that an inclusive placement is appropriate.
III. Parent's Entitlement to Reimbursement for Evaluations
Mr. and Mrs. G. request reimbursement by Lower Merion for the evaluations performed by their experts, as well as the costs incurred in obtaining additional educational support services. Nevertheless, we must deny plaintiffs' request because it is well-settled that reimbursement is only appropriate where the evaluations result in a change in the IEP, or there is a determination that the "IEP in question was inappropriate." See e.g. Bernardsville Board of Education v. J.H., 42 F.3d 149, 157 (3d. Cir. 1994). Furthermore, there was no testimony to suggest that the additional tutoring that Jonathan received was absolutely necessary, or that he would not have made reasonable educational progress without it. Accordingly, we must deny the reimbursement requests.
Finally, we deny the request by plaintiffs' attorney for fees, since plaintiffs are not prevailing parties under IDEA. See 20 U.S.C. 1415(e)(4)(B).
In accordance with the discussion above, we find that the IEP proposed by Lower Merion on April 20, 1995 is appropriate for Jonathan G. We therefore decline to reimburse plaintiffs for the cost of the independent educational services and evaluations they purchased, and we also decline to award attorney's fees.
An appropriate Order follows.
AND NOW, this 10th day of March, 1997, after considering the entire record in this case, it is hereby ORDERED that the decision of the Pennsylvania Education Appeals Panel is AFFIRMED.
BY THE COURT:
J. Curtis Joyner, J.