SPECIAL EDUCATION HEARING OFFICER
DUE PROCESS HEARING
Name of Child: D.S.
ODR #01000/09-10 AS
Date of Birth: [redacted]
Dates of Hearing: July 6, 2010 July 20, 2010
Parties to the Hearing: Parent[s]
Bethlehem Area School District 1516 Sycamore Street Bethlehem, Pennsylvania 18020
Angela Murphy, Esquire
106 N. Franklin Street Suite 2 PO Box 97
Penn Argyl, Pennsylvania 18072
Glenna Hazeltine, Esquire
King, Spry, Herman, Freund & Faul One West Broad Street Suite 700 Bethlehem, Pennsylvania 18018
Date Record Closed: August 1, 2010
Date of Decision: August 15, 2010
Hearing Officer: Linda M. Valentini, Psy.D., CHO Certified Hearing Official
Background and Procedural History
Student1 is a late-teen-aged eligible student with a current classification of autism; student at various times has also been classified as emotionally disturbed, other health impaired and gifted. Student is a resident of the Bethlehem Area School District (hereinafter District) and for the past school year has, pursuant to a September 8, 2009 settlement agreement, attended a private school (hereinafter Private School) with tuition and transportation funded by the District. In the spring of the current school year the District indicated it planned to graduate Student, whereupon on April 22, 2010 Student’s mother and father (hereinafter Parents) requested this hearing as they did not approve the plan to graduate Student and wanted Student to remain in school, specifically the Private School. Nevertheless the District issued a graduation NOREP on May 19, 2010, and without the Student’s or Parents’ knowledge placed Student’s name in the graduation program, called Student’s name at the graduation ceremony and prepared a diploma. A hearing was scheduled for mid-June, but due to both attorneys having preplanned vacations the matter was continued to three mutually agreed-upon dates. The second date had to be canceled due to illness of one of the attorneys, therefore the hearing was completed in two sessions.
The District moves to dismiss the Parents’ complaint on jurisdictional grounds. First the District argues that since Student has satisfied the requirements for graduation and is no longer eligible under IDEA this hearing officer lacks jurisdiction. Second, the District argues that the Parents are bound by the terms of the settlement agreement entered into between themselves and the District and therefore this hearing officer lacks jurisdiction to award the remedy sought by the Parents. Third the District argues that the Parents have not complied with the requirements of IDEA necessary for an award of private tuition, and therefore this hearing officer lacks jurisdiction to award the remedy sought, placement in a particular private school. Finally the District asserts that the Parents have not met their burden of proof and that therefore the remedy they seek must be denied.
For the reasons put forth below I denied the District’s Motion to Dismiss, found that the Parents have met their burden of proof, and hold in favor of the Parents.
- Was the District’s plan to graduate Student at the end of the 2009-2010 school year appropriate?
- If Student should not be graduated what is the appropriate educational placement?