This is a redacted version of the original hearing officer decision. Select details may have been
removed to preserve anonymity of the student. The redactions do not affect the substance of the
document.
B.R.
Child’s Name
Xx/xx/xx
Date of Birth
7074/06-07 AS
ODR File Number
November 29, 2006, December 7, 2006
Dates of Hearing
Closed Hearing
Parties to Hearing
Parent Mrs.
Parent Representative
Pro Se
School District James McAnulty
Bristol Township School District 6401 Mill Creek Road Levittown, PA 19057-4014
District Representative
Andrea Saia, Esq.
1800 Byberry Road
1301 Mason’s Mill Business Park Huntington Valley, PA 19006
Dates Transcript Received:
December 4, 2006; December 10, 2006
Date of Decision:
December 19, 2006
Kenneth Rose
Hearing Officer
Background
The student is a xx-year old student in the school district. He is currently in eleventh grade. He is an eligible student identified as having a Specific Learning Disability (SLD) in reading and Other Health Impairment (OHI). He has generalized seizure disorder status post VP shunt for congenital hydrocephalus, Attention Deficit/Hyperactivity Disorder (AD/HD), frequent nosebleeds and Osgood-Schlatter disease. There is a history of animosity between the parent and the school district. There is currently ongoing legal action between the parent and school district concerning the student. The nature of this is not part of this due process hearing except as occasionally referenced in the proceedings.
The complaint before this hearing officer is the parent’s contention that the Individualized Education Program (IEP) was not implemented and the proposed IEP is inappropriate. She is seeking that the proposed IEP contain her proposed additions. In her opening statement several additions were requested. A Behavior Plan (BP) was requested, as well as a solution to his failing classes.
Issues
- Is the current IEP being implemented?
- Is the proposed IEP appropriate?
Discussion and Conclusions of Law
Issue 1. Is the current IEP being implemented?
The current IEP is the IEP of September 19, 2006. This IEP follows a line of revisions started last school year where revisions were made at parent’s request (FF 2). These included removal of direct learning support through “learning seminar” during the school day (FF 3, 4). The IEP of September 19, 2006 was approved by the parent (FF 8). It addresses the needs identified in the last RR (FF 9). In Furman v. East Hanover Board of Education, 993 F. 2d 1031, 1040 (3rd Cir. 1993) it was established that an IEP adequacy can only be determined at the time it is offered.
The school district implemented the IEP although implementation was hampered by the actions of the student and parent. There were problems with always giving extra time on tests because the parent would not permit the student to meet with the special education teacher (FF 11, 17). The parent did not think it best for the student to stay after school. During this time work was missed due to his walking out of class
(FF 19), the parent taking the student out of class (FF 19), failure of the student to request work missed due to suspension (FF 22, 24) and being called to the office (FF 11).
In Schaefer v. Weast 546 U.S.C (November 14, 2005), the burden of proof (burden of persuasion) is placed upon the party bringing the claim. The parent fails to meet this burden in issue one. There is no preponderance of the evidence that the school district has not implemented the IEP of September 19, 2006.
Issue 2. Is the proposed IEP appropriate?
The proposed IEP is the November 29, 2006 draft which is a revision of the October 24, 2006 IEP (FF 41, 42)
There is no doubt that the IEP of September 19, 2006 is not working. The student is failing in two classes and he is having constant discipline problems resulting in missed classes, suspension and citations to court (FF 20, 21, 22).
34 C.F.R. §300.324 (b)(1)(ii) requires that an IEP be revised if progress toward goals is not being made. Shortly after the current IEP was implemented the parent raised concerns (FF 29). The school district showed concern by requesting additional medical data from the parent and starting the IEP revision process which continues to the present. (FF 31). The school district rightly started the IEP revision process in a timely manner with the October 24, 2006 IEP revision.
The parent has requested sundry additions to the IEP (FF 44). These vary over time. These in part include further test accommodations, making up assignments, right of the student to leave class, alternate testing, prior notice of tests, health issues listed, parent notification prior to discipline and a BP (FF 44). The school district has stated its willingness to provide a BP (FF 47)
The school district complains it has over the years tried to address the parent’s concerns. In the last couple of years there have been fifteen or sixteen teacher changes at parent request (FF 2, 4). “Resource Seminar” and a BP were eliminated at parent request (FF 3). Parent concerns were included in the IEP revisions last year and this year (FF 3, 33, 41).
It is clear that the current IEP is not working. A preponderance of the evidence shows the IEP of October 24, 2006 and its latest revision of November 29, 2006 are not appropriate. The student is not making progress on his goals especially in behavior, organization and academic classes. There is evidence the school district has attempted to grant some requests and resists others. The school district’s efforts to accommodate the parent have led to a paralysis in developing an appropriate revised IEP. The school district describes this as trying to hit a “moving target.”
It is not clear what the student’s current needs are (FF 31, 34, 37). This needs to be explored. There are questions of the role of his seizure disorder and ADD on his current problems. The student is not consistently on his medications. The responsibility under IDEIA is on the school district to provide FAPE. While it is commendable that the school district is seeking compromise with the parent, the student’s needs are not being met at present. The school district is reminded of its duty to develop an appropriate IEP and issue it even if a parent objects to it.
With the continuing behaviors of the student and lack of progress a comprehensive re-evaluation is in order. This will form a foundation for an appropriate IEP.
The question of the timeliness of the school district’s delay in submitting the parent’s due process request does not rise to the level of a fatal procedural flaw under Board of Education v. Rowley, 458 U.S. 176, 102 S. Ct. 3034 (1982).