DH vs. Pennsbury School District

PENNSYLVANIA

SPECIAL EDUCATION HEARING OFFICER

DECISION
DUE PROCESS HEARING

Name of Child: D.H.

ODR #5871/05-06 KE

Date of Birth: xx/xx/xx

Dates of Hearing: December 1, 2005 January 13, 2006 January 30, 2006 March 14, 2006

CLOSED HEARING

Parties to the Hearing:

Parent(s)

Director of Special Education Pennsbury School District
134 Yardley Avenue, PO Box 338 Fallsington, Pennsylvania 19058

Representative:
Ilene Young, Esquire
Law Office of Ilene Young, Esquire 50 E. Court Street, Main Floor Doylestown, Pennsylvania 18901

Claudia Huot, Esquire
Wisler, Pearlstine & Talone
484 Norristown Road, Suite 100 Blue Bell, Pennsylvania 19422

Last Transcript Received: March 20, 2006

Record Closed April 3, 2006

Date of Decision: April 19, 2006*

Hearing Officer: Linda M. Valentini, Psy.D.

*The hearing officer requested an extra day due to the Good Friday and Easter holydays.

Background

Student is a [teenaged] student who is eligible for special education and classified as having an autistic disorder. He also has been found to have an attention deficit hyperactivity disorder and a disorder of written expression. Student resides with his parents, (hereinafter Parents) within the Pennsbury School District (hereinafter District). From the beginning of the 2000-2001 school year until the end of the 2004-2005 school year he had been educated in autistic support classes operated by the [redacted] Intermediate Unit (hereinafter IU) under contract with the District. For the current 2005- 2006 school year the Parents have unilaterally placed Student in [redacted], a private school.

The Parents assert that because of procedural and substantive violations of the IDEA Student was not provided a free appropriate public education (FAPE) in the least restrictive environment (LRE) for the 2003-2004 and the 2004-2005 school years, and seek compensatory education as a remedy for this deprivation. The Parents also assert that the District failed to offer Student an appropriate educational placement for the 2005- 2006 school year, and that therefore they are entitled to reimbursement for tuition they paid to [the private school].

The District maintains that it offered Student FAPE in the LRE for the two school years in question; it does not owe Student compensatory education, and if compensatory education is owed it is only for one year under Montour. The District also maintains that it did offer an appropriate placement for Student for the 2005-2006 school year, that it is not required to reimburse the Parents for Student’s tuition to [the private school], that [the private school] is not an appropriate placement for Student and that equitable considerations favor the District.

Prior to convening the hearing the parties and the hearing officer conferred and the hearing officer established 1) that the IDEIA allows Parents a two-year window for compensatory education, and that the IDEIA effectively trumps Montour in cases filed after July 1, 20051; and 2) although Schaffer v. Weast speaks only to the burden of persuasion, the burden of production also lies with plaintiff parents, as fairness to the defendant school districts dictates that evidence presented against them be put forth prior to their mounting a defense.

 

Issues

  1. Did the District fail to provide Student with a free appropriate public education in the least restrictive environment for the 2003-2004 and/or the 2004-2005 school years?
  2. If the District failed to provide Student with a free appropriate public education in the least restrictive environment for the 2003-2004 and/or the 2004-2005 school years is he entitled to compensatory education, and in what amount?
  3. Did the District fail to offer or propose an appropriate program and placement for Student for the 2005-2006 school year?
  4. If the District failed to offer or propose an appropriate program and placement for Student for the 2005-2006 school year, was the placement unilaterally chosen by the Parents appropriate?
  5. If the District failed to offer or propose Student an appropriate program and placement for the 2005-2006 school year, and if the placement unilaterally chosen by the Parents was appropriate, are there any equitable considerations that would reduce or eliminate the District’s responsibility for tuition reimbursement?

 

D-H-Pennsbury-ODRNo-5871-05-06-KE

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