This is a redacted version of the original decision. Select details have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document.
Special Education Hearing Officer
Child’s Name: B.K.
Dates of Hearing:
June 26, 2012 July 19, 2012 August 17, 2012 September 26, 2012 October 4, 2012
ODR Case # 2939-1112KE
Parties to the Hearing:
Tyrone Area School District 701 Clay Avenue
Tyrone, PA 16686
Pamela Berger, Esq. 434 Grace Street Pittsburgh, PA 15211
Brian Marshall, Esq. 720 S. Atherton Street State College, PA 16801
Date Record Closed: October 29, 2012
Date of Decision: November 20, 2012
Hearing Officer: Jake McElligott, Esquire
INTRODUCTION AND PROCEDURAL HISTORY
[The student] (hereinafter “student”)1 is [a pre-teenaged] student who resides in the Tyrone Area School District (“District”). The parties dispute whether the student should have been identified by the District as a student with a disability under the Individuals with Disabilities in Education Improvement Act of 2004 (“IDEIA”) and Pennsylvania special education regulations (“Chapter 14”),2 as well as whether the District had analogous obligations to the student under the Rehabilitation Act of 1973 (specifically under Section 504 of that statute, hence the follow-on reference to “Section 504”) and Pennsylvania education regulations which implement Section 504 (“Chapter 15”).3 Particularly, the dispute centers on whether the District should have identified the student as a student with a serious emotional disturbance given problematic in-school behaviors in the 2010-2011 and 2011-2012 school years.4 More pointedly, the parents contend that various acts and omissions by the District amount to discriminatory and/or retaliatory acts and omissions
1 The generic use of “student”, rather than a name and gender-specific pronouns, is employed to protect the confidentiality of the student.
2 It is this hearing officer’s preference to cite to the pertinent federal implementing regulations of the IDEIA at 34 C.F.R. §§300.1-300.818. See also 22 PA Code §§14.101- 14.164.
3 It is this hearing officer’s preference to cite to the pertinent federal implementing regulations of Section 504 at 34 C.F.R. §§104.1-104.61. See also 22 PA Code §§15.1- 15.11 wherein Pennsylvania education regulations explicitly adopt the provisions of 34 C.F.R. §§104.1-104.61 for services to “protected handicapped students”.
4 At the end of the hearing, a District witness confirmed that, subsequent to the initiation of these proceedings, the District had identified the student as a student with a serious emotional disturbance. (NT at 848-849). This does not blunt the parents’ claim that the identification of the student should have occurred earlier in the student’s education at the District.
by the District toward the student and parents. As a result of these claims, parents seek compensatory education as a remedy.
The District counters that, based on the information it had in the 2010-2011 and 2011-2012 school years, the student did not qualify as a student with a disability under the terms of the IDEIA. To the extent that the student qualified as a student with a disability under Section 504/Chapter 15, the District argues that those needs were met with an appropriate Section 504 plan. For those reasons, the District claims that no compensatory education is owed. The District also vigorously denies that it engaged in discriminatory and/or retaliatory acts and omissions against the student and parents.
For the reasons set forth below, I find in favor of parents on the issues of denial-of-FAPE and discrimination but in favor of the District on the issue of retaliation.
Should the student have been identified
as a student with a disability under the IDEIA in the 2010-2011 and/or 2011-2012 school years?
did the District deny FAPE to the student as a result?
did the District provide FAPE to the student under its Section 504 obligations?
Did the District engage in
discriminatory and/or retaliatory acts and/or omissions?