SPECIAL EDUCATION HEARING OFFICER
DUE PROCESS HEARING
Name of Child: B.L.
ODR #15677 14-15 AS
ODR #15721 14-15 AS
ODR #15737 14-15 AS
ODR #15811 14-15 AS
Date of Birth:
Date of Hearing:
February 13, 2015
Parties to the Hearing:
Owen J. Roberts School District 901 Ridge Road
Pottstown, PA 19465
Sharon Montanye, Esquire
Sweet, Stevens, Katz and Williams PO Box 5069
331 Butler Avenue
New Britain, PA 18901
Date Record Closed: February 13, 2015
Date of Decision: February 21, 2015
Hearing Officer: Linda M. Valentini, Psy.D., CHO Certified Hearing Official
Student1 is an early teen-aged student living with the Parents within the boundaries of the District but attending an Approved Private School [APS] at District expense.
Student is eligible for special education pursuant to the Individuals with Disabilities Education Act [IDEA]2 and Pennsylvania Chapter 143. Student is also an individual with a disability protected under Section 5044 [Section 504] and a protected handicapped student under Pennsylvania Chapter 155. Student is classified under the categories of autism and intellectual disability.6 The Parents7 filed the four due process complaints numbered above which were consolidated into one hearing session with the consent of the parties.
The current disputes arose from the outcome of a previous due process matter adjudicated by another hearing officer; background information about that matter is essential in order to understand the context of the present matters. The previous hearing officer was asked to decide “whether Student requires a residential placement” for school year 2014-2015. Based upon the testimonial and documentary evidence before her the previous hearing officer concluded that “the evidence is simply insufficient to establish whether a residential placement is necessary for Student at this time” and that “a new evaluation of Student is essential so that the [IEP] team has a comprehensive understanding of Student’s current strengths and needs before it can consider where the special education and related services should be provided”. The Parents’ complaint also required the previous hearing officer to decide whether the District committed procedural violations that denied the Parents meaningful participation in IEP development, and the hearing officer so found. Exercising her authority to fashion an appropriate remedy under the IDEA, the previous hearing officer awarded Student an Independent Educational Evaluation [IEE] at District expense rather than ordering the District to reevaluate Student. As such the IEE at District expense served both to obtain additional necessary information to guide future IEP team decisions about placement, and to compensate the Parents for their having been denied meaningful participation in their child’s educational programing. In her Decision, the previous hearing officer stated, “This remedy of a publicly funded IEE will serve the critical function of ‘guarantee[ing] meaningful participation [of the Parents] throughout the development of the IEP’ and placement decision, something that was denied between February and June 2014”. The Parents
1 This decision is written without further reference to the Student’s name or gender to protect Student’s privacy.
2 20 U.S.C. §1401 et seq.
3 22 PA Code §1400 et seq.
4 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794
5 22 PA Code §15.1 et seq.
6 This hearing officer presided over a due process hearing involving Student and the current parties in December 2014 and issued a Decision in January 2015 finding that Student should properly be classified as both autistic and intellectually disabled. [Valentini, ODR 15486/14-15 AS, January 2015]
7 The term “Parents” is used here because although Student’s father took the lead in filing the complaints and participating in the hearings it is understood that he was acting on behalf of both Parents. In the body of the Decision when “Parent” is used the father is specifically referenced.
however did not agree that Student should have an IEE, and appealed the previous hearing officer’s Order to federal court. Despite receiving verbal notice of the Parents’ intent to file an appeal of the Order, the District proceeded without the Parents’ cooperation and followed the Order to obtain an IEE. Once the District received the formal written notice of appeal the District still held Individualized Education Plan [IEP] meetings [one without the Parents and the other with the Parents] to discuss the IEE, modified the IEP based on the IEE, and issued Notices of Recommended Education Placement [NOREPs] pursuant to these actions. The Parents in response filed the sequential due process complaints as numbered above and as put forth in the Issues section below. Although the Decision Due Dates of the four complaints ranged from February 21, 2105 to April 6, 2015 this decision is being issued on the earliest of these dates. The Parents prevailed on all four complaints.
15677: Did the District violate the Parents’ procedural rights when it commissioned an IEE in accord with the Order of a previous hearing officer but against the Parents’ wishes, after the Parents had notified the District of their intent to file an appeal of the Order to federal court? Further, once having received formal notice of the Parents’ appeal to federal court, did the District err in considering the IEE and using it as a basis to amend the IEP? [S-2, IP-1]8
15677: Did the District violate the Parents’ rights when it released Student’s educational records to the independent evaluator without parental consent?
15699: Was the IEE the District commissioned substantively appropriate? [S-2, IP-1]
15721: Did the District violate the Parents’ procedural rights when it convened an IEP meeting on December 15, 2014 to consider the IEE and to make IEP revisions as necessary based on the IEE despite the Parents’ request to reschedule the IEP meeting? [S-22, IIP-4]
15737 and 15811: Did the District violate the Parents’ procedural rights when it issued a NOREP dated December 19, 2014 noting “Review of IEE Pursuant to Hearing Officer Ruling 15205-1415AS”? [S-23, IIIP-2] Did the District commit a procedural error when on January 16, 2015 it sent the Parents a NOREP proposing implementation of the IEP revision as per its December 15, 2014 NOREP? [S-30, IIIP-6]B-L-Owen-J-Roberts-ODRNo-15737-14-15-AS