This is a redacted version of the original hearing officer decision. Select details have been removed
from the decision to preserve anonymity of the student as required by IDEA 2004. Those portions of
the decision which pertain to the student’s gifted education have been removed in accordance with 22
Pa. Code § 16.63 regarding closed hearings.
Pennsylvania
Special Education Hearing Officer
DECISION
Child’s Name: C. H.
DateofBirth: [redacted]
Dates of Hearing: 3/22/2016, 4/26/2016, 7/6/2016, and 7/7/2016
Closed HEARING
ODR File No. 17316-15-16
Parties to the Hearing:
Parents Parent[s]
Local Education Agency
West Shore School District
507 Fishing Creek Road
New Cumberland, PA 17070-0803
Representative:
Parent Attorney
Jennifer Lukach Bradley Esq. McAndrews Law Offices
30 Cassatt Avenue
Berwyn, PA 19312
LEA Attorney
Brooke Say Esq.
Stock and Leader/Susquehanna Commerce Center East
Suite E 600, 221 West Philadelphia Street York, PA 17401-2994
Date of Decision: September 1, 2016
Hearing Officer: Charles W. Jelley Esq. LL.M.
Procedural History
The Parents filed a Complaint alleging the District failed to identify, locate, and evaluate the Student. 1 This type of Parent Complaint is commonly called a child find violation. [redacted] The Parties agree the Student is a person with Autism. The Parties disagree whether because of the Student’s Autism disorder the Student needs special education as provided for under the Individual with Disabilities Education Act. The Parties also disagree if the Student is a person with a disability pursuant to Section 504 of the Rehabilitation Act who is believed to need special education.2
The District filed a Motion to Dismiss the Parents’ Complaint contending the child find claims were untimely. The District contended the Parents knew of the alleged child find violation, in 2011, after providing the District with a private evaluation identifying the Student as Autistic [redacted]. The Parents responded arguing that they were not aware the Student could receive an Individual Education Program (IEP) [redacted]. This hearing officer granted the District’s Motion and limited the Parents’ child find claim to alleged violations that occurred during the 2013-2014 and 2014-2015 school years up to the Student’s enrollment in the charter school. (A copy of the Ruling is part of the record).
In reaction to the favorable Ruling dismissing claims from 2011-2013, the District now contends the Parents cannot establish an ongoing child find violation as the Parents’ knowledge in 2011 prevents any future relief for any other child find violations not subject to the Ruling dismissing the 2011-2012 and 2012-2013 school year claims. To support this contention, the District relies on its [redacted], report cards, standardized state assessments results, and testimony from the staff. The Parents answer back arguing that during the 2013-2014 school year until the Student withdrew, warning signs were present to establish the Student needed specially-designed instruction.
The Parents further argue the [redacted] teachers over emphasized Student’s [redacted] abilities and test scores. By over emphasizing the [redacted] abilities and test scores the District failed to acknowledge the Student’s strengths as “mitigating measures” that otherwise masked the Student’s need for special education. The Parents implicitly contend had the [District] factored out [redacted], as a “mitigating measure” the IDEA and Section 504 eligibility factors would therefore weigh in favor of identifying the Student as needing special education services. In support of their contentions, the Parents point to a series of independent ongoing uncontested events that support the Student’s need for special education.
ISSUE
Did the District fail to identify the Student as a person with a disability in need of specially designed instruction? If yes, what appropriate relief should be ordered to correct the alleged violation?
After a careful and thorough review of the testimony, the exhibits, and each Party’s closing arguments, whether or not specifically mentioned in this decision, I find the District failed to locate, identify, and evaluate the Student in 2013. The child find errors violated the Student’s IDEA and Section 504 child find rights. The child find violations also violated the Parents’ procedural due process rights and interfered with the Parents’ participation in the development of the Student’s individualized program.
C-H-West-Shore-ODRNo-17316-15-16