EM vs. Downingtown Area School District

PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER

DECISION

EXPEDITED DUE PROCESS HEARING

Name of Child: E.M.
ODR #18638/ 16-17 KE
Date of Birth:

[redacted]

Date of Hearing: January 25, 2017

CLOSED HEARING

Parties to the Hearing: Parent[s]

Downingtown Area School District 540 Trestle Place
Downingtown, PA 19335

Representative:
John Bogan, Esquire Frankel & Kershenbaum 1230 County Line Road Bryn Mawr, PA 19010

Jennifer Donaldson, Esquire Sweet, Stevens, Katz and Williams 331 Butler Avenue
New Britain, PA 18601

Date of Decision: February 3, 2017

Hearing Officer: Linda M. Valentini, Psy.D. CHO Certified Hearing Official

Background

Student1 is a late-teen aged District resident who was formerly eligible for special education under the classification of Other Health Impairment (ADHD) but was exited from special education following a reevaluation completed in late May 2016. The Parent2 agreed with the reevaluation’s conclusion that Student no longer qualified for special education and signed the Notice of Recommended Educational Placement (NOREP). Following an incident on December 9, 2016 involving illegal drugs the District suspended Student for ten days, then pursuant to a School Board hearing expelled Student. Student is currently enrolled in the District’s cyber school program and, under specified conditions, is eligible to apply for readmission to the high school when one calendar year has passed.

Believing that certain behaviors in the fall of 2016 should have led the District to conduct another reevaluation, the Parent requested this expedited due process hearing, asserting that Student should have been considered ‘thought to be eligible’ and therefore entitled to the disciplinary protections afforded by the Individuals with Disabilities Education Act (IDEA).3 Accordingly, the Parent asks for an order that the expulsion be vacated, that the District conduct a manifestation determination, and that the District provide an Independent Educational Evaluation (IEE) at public expense to ascertain Student’s needs.

The District’s position is that Student is neither an eligible student nor a thought to be eligible student under IDEA, and therefore not entitled to any of the IDEA’s protections or provisions related to discipline including a manifestation determination, a 45-day alternative educational placement, and/or even this due process hearing, and presented a Motion to Dismiss in its opening statements. Unwilling to deny the Parent an opportunity to present her case I denied the District’s last minute Motion and conducted the hearing.

For the reasons set forth below, I find that the Student was not a ‘thought-to-be-eligible’ student at the time of the incident in question, that the District acted appropriately with regard to its discipline of Student, and that Student is not entitled to any of the requested relief.

Issues

As of December 9, 2016 was Student entitled to the disciplinary protections the IDEA affords to ‘thought to be eligible’ students?

If Student was entitled to such protection, what remedies are appropriate?

E-M-Downingtown-Area-ODRNo-18638-16-17-KE

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