GJ vs. Lower Merion School District

PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER

Student: G.J.

Date of Birth: [redacted]

Hearing Dates: September 8, 2010; September 22, 2010; October 12, 2010; November 3, 2010; November 4, 2010 & February 14, 2011.

ODR File Nos.: 01083/09-10 AS 01367-1011AS (Consolidated Decision)

OPEN HEARING

School District: Lower Merion School District

Parties: Representatives:

Parent[s] Parent Attorney

Sonja D. Kerr, Esquire Public Interest Law Center of Philadelphia 1709 Benjamin Franklin Pkwy Philadelphia, PA 19103

Lower Merion School District

School District Attorney:

ShaVon Y. Savage, Esquire Wisler Pearlstine, LLP Blue Bell Executive Campus 460 Norristown Road, Suite 110 Blue Bell, PA 19422-2323

Date Record Closed: February 20, 2011

Date Closings Submitted: March 15, 2011

Decision Date: March 25, 2011

Hearing Officer: Gloria M. Satriale, Esquire

INTRODUCTION AND PROCEDURAL HISTORY

This case concerns the provision of a Free Appropriate Public Education (hereinafter “FAPE”) for [Student] (hereinafter referred to as “Student”), a [late teenaged] Student, who resides with [Student’s] parent, [name redacted] (hereinafter referred to as the “Parent”) in the Lower Merion School District (hereinafter referred to as “District”) and who has been identified as an eligible Student with specific learning disabilities.

The Parent filed a due process complaint notice on May 13, 2010 (the “Complaint”). The District challenged the sufficiency of the Complaint in a May 28,
2010 filing. On June 8, 2010, the Complaint was determined to be insufficient and the Parent was directed to file an amended complaint by June 19, 2010. The Parent was given an extension of time to file the amended complaint to June 26, 2010. The Parent filed her amended due process complaint (the “Amended Complaint”) on June 26, 2010. The District filed a second due process Complaint on July 16, 2010 seeking to defend the District’s Reevaluation Report of October 27, 2008 and to oppose the Parent’s request for an Independent Education Evaluation to be performed at Public expense. A sufficiency challenge to the District’s complaint was filed on July 28, 2010, which was denied. These two Complaints were consolidated, by consent, and the issues contained in each were heard during the course of these sessions and are decided in this Opinion.

Following oral argument and for the reasons stated on the Record, the Parent’s Race Discrimination claim was dismissed and pursuant to the Motion to Limit Claims filed by the District, the Parents claims were limited to those arising on or after June 26, 2008.

Following the initial session, the parties conducted a second resolution meeting on October 19, 2010; the Family and the District were unable to come to an agreement.

A Due Process hearing ensued over six (6) sessions on September 8, 2010, September 22, 2010, October 12, 2010, November 3, 2010, November 4, 2010 and February 14, 2010.

Exhibits were submitted and accepted on behalf of the Parent as follows:

P-15, P-42, P-63, P-67, P-73, P-81, P-87, P-97, P-100, P-101, P-104, P-105, P-107, P- 111, P-112, P-112A, P-113, P-114. P-15, P-42, P-63, P-67, P-73, P-81, P-87, P-97, P- 100, P-101, P-104, P-105, P-107, P-111, P-112, P-112A, P-113, P-114.

Exhibits were submitted and accepted on behalf of the District as follows: 1

S-7, S-8, S-12, S-15, S-47, S-49, S-52, S-72, S-73, S-74, S-75, S-80, S-81, S-84,
S-90, S-96, S-97, S-104, S-105, S-106, S-107, S-110, S-114, S-115, S-116, S-117, S-120, S-121, S-122, S-124, S-125, S-128, S-129, S-130, S-131, S-135, S-137, S-140, S-141, S- 142, S- 145, S-146, S-147, S-151, S-153, S-154, S-156.

The Parents contend that the District failed to properly identify the Student’s disabilities and needs and asserted the right to an Independent Educational Evaluation (IEE), which was denied by the District. The parents further asserted that, since the District failed to properly identify the Student, [Student] was deprived of a FAPE, thereby entitling [Student] to compensatory education. Additional violations of the provision of a FAPE were asserted for failure to provide proper supports and Extended School Year Services (ESY) as well as asserting violations of Section 504 and of the Student’s right to be educated in the Least Restrictive Environment (LRE) appropriate.

The District wholly denies these allegations and asserts provision of a FAPE in the least restrictive environment possible and that the Student’s failure to thrive, if any, is as a result of the Student’s lack of effort and Student’s failure to fully avail [Student’s self] of District supports, attend class, attend to instruction and complete class and homework.

Although this case involves a complex fact pattern involving multiple assessments and interpretations of a variety of instruments and disputes within the record regarding disclosure by and to the Parent; and recognition by the District of symptomology of this Students performance, the core question is basic: has a causal connection been established between the obvious avoidance behaviors of this student and learning difficulties which were ignored or ineffectively addressed by the District. The answer is undeniably no. The District responded appropriately and often to the typography of this student’s learning style and behavior issues. Accordingly, this student has not been denied a FAPE. The profile that the District failed to recognize is that the specific learning and behavior challenges of this student required continued structured maintenance in order to preserve the gains achieved during the school year and should have been afforded ESY services.

For the reasons that follow, Parents’ claim for an Independent Educational Evaluation at Public Expense is GRANTED. The request for Compensatory Education is for the period of the 2008/2009and2009/2010 school year sis DENIED. Compensatory Education in the form more specifically enumerated in the attached Order for ESY for 2008, 2009 and 2010 is GRANTED.

ISSUES

The issues presented at the hearing were as follows:

  1. Did the District fail to provide Student with FAPE in the District’s provision of special education and related services in reading, writing, math, assistive technology and transition services in a manner that was reasonably calculated to provide [Student] meaningful progress for the period from June 26, 2008 through June 28, 2010 including the applicable periods of potential ESY services?
  2. If the District did not provide FAPE (including ESY services) to Student from June 26, 2008 through June 28, 2010, what compensatory education should be awarded?
  3. Did the District provide FAPE in the Least Restrictive Environment (LRE) appropriate?
  4. Is the Parent entitled to reimbursement for an independent educational evaluation (an “IEE”) obtained by the Parent?1
G-J-Lower-Merion-ODRNo-01083-09-10-AS-01367-1011AS-Consolidated

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