Special Education Law Case Summary
Upper Darby School District

upper darby school district PA

ODR Case: 18509-1617 KE
Hearing Officer: Linda M. Valentini, Psy.D., CHO
Date of Decision: December 19, 2016

BACKGROUND

A.M. (Hereinafter, Student) is a middle school aged student attending school in the Upper Darby School district (Hereinafter, District). The District believes Student’s recent behavioral and social difficulties warrant an evaluation to determine if special education and/or related services are necessary. Student’s father (Hereinafter, Parent) withheld his consent for student to be evaluated. In response, the District requested an Order be given by the court for Student to be evaluated.

FACTS

The student began his schooling at the County Intermediate Unit’s Head Start program where he received both education and speech/language support. (N.T. December 19, 2016 at 2). Based upon a re-evaluation in April, during his third-grade school year, Student was exited from special education programming. (Id.). While attending regular-education classes, student performed proficiently, with grades ranging from the mid-70’s to mid-80’s during sixth-grade. Similarly, Student scored proficient on his fourth and fifth-grade PSSA’s and basic in sixth grade.

Issues first arose during Student’s seventh grade year, when he made “bizarre” comments in class, some sexual in nature and, began showing signs of lacking social skills. (Id. at 3). Though his grades remained consistent, suspensions due to fighting and continued uncertainties about Student’s social issues caused the District to request a multidisciplinary evaluation to determine if Student was eligible for special education programming and/or additional supports and services. (Id.). Parent refused to give the District consent, both by phone and in writing in May 2016.

In October 2016, Student’s continued to show signs of inappropriate behavior in class, such as making sexual comments and chronic lateness. (Id. at 3). This behavior prompted one of his teacher to refer Student to the Student Assistance Program (SAP). (Id.). Comments on the SAP referral were relatively innocuous, only identifying Student’s issues with staying on task. (Id.). After the SAP meeting, Student’s Social Studies and Math teacher implemented strategies and changed Student’s seat. (Id.). The only alarming comment on the SAP report came from his Science teacher who noted Student’s repeated use of inappropriate language, including yelling at others, continued lateness and use of phone during class time. (Id. at 4). As of November 2016, Parent testified that the only negative comments made about Student during a report card conference came from his Science teacher. (Id.).

CLAIMS

  1. Due to Student’s inappropriate behavior in class, Student should be evaluated to determine eligibility for special education and related services.
  2. Because of Parent’s disapproval of an evaluation, the Court should Order for Student to be evaluated.

COURT DETERMINATIONS AND REASONING

Because IDEA places the responsibility on the District (LEA) and not the parent to identify which children residing within their boundaries are in need of special education and related services, the District is appropriate to bring this Claim to court. Should a child be identified, the District must first obtain consent from the parent to evaluate the student to determine if special education is necessary.  However, should the parent refuse consent for an evaluation to take place due process is available to the LEA to “override” parents refusal to consent through an Order from a special education hearing officer.

Here, the District believes the student exhibited such inappropriate behavior that he was a candidate for a diagnostic evaluation. Since the District is the moving party, the burden is placed upon them to show by preponderance of the evidence that Student is in need of evaluation to determine if specialized education is needed. The District was unable to persuade the hearing officer to rule in their favor.

First, the only unusual or inappropriate behavior documented came during the students seventh grade year. Student is now an eighth grader in the District. At no point did the District present evidence or testimony that such behavior continued past the seventh grade. The court officer did acknowledge that an evaluation would be beneficial to rule out any emotional or learning issues Student may suffer from, however the evidence presented by the District was too little to override a parent’s consent.

Though the District technically lost their Claim, they are likely pleased with the overall outcome. Since their Claim was denied, the District is no longer responsible to identify student under IDEA and, is not vulnerable to any assertions of denial of FAPE based upon Child Find or lack of provision of special education programming. Though the District’s special education department may still hope student be evaluated, the District can no longer be liable for such denial of services. The student will continue in his regular education classes and be disciplined as any other regularly educated student.

CONCLUSION

The District’s case was not strong enough to override Parent’s refusal to consent for evaluation of Student.  The School District acted appropriately under its Child Find and has fulfilled its responsibility to identify Student. All Claims filed by the District are denied and dismissed.