HB vs. Southeast Delco School District

PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER

DECISION
DUE PROCESS HEARING

Name of Child: H.B.

ODR #19461/17-18 KE

Date of Birth: [redacted]

Date of Hearing: August 7, 2017

OPEN HEARING

Parties to the Hearing:

Southeast Delco School District 1516 Delmar Drive
Folcroft, PA 19032

Parent[s]

Representative:

Gabrielle Sereni, Esquire Raffaele & Puppio
19 West Third Street Media, PA 19063

Pro Se

Date of Decision: August 30, 2017

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

Background

Student1 is an early teen-aged student who was formerly enrolled in a District school. The Student was identified in 2nd grade as a “child with a disability,” as defined by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Specifically, the Student was eligible for special education pursuant to the IDEA and its Pennsylvania implementing regulations, 22 Pa. Code § 14 et seq. (Chapter 14), as a child with a Specific Learning Disability (SLD). As such, the Student was also protected as an “individual with a disability” as defined by Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 701 et seq., and as a “protected handicapped student” under the Pennsylvania regulations implementing Section 504 in schools, 22 Pa. Code § 15 et seq. (Chapter 15).

At the beginning of the 2016-2017 school year the Parent revoked consent for special education services. A year later, the Parent requested this hearing in a complaint, written on a form promulgated by the Pennsylvania Training and Technical Assistance Network (PaTTAN). The form asks two questions, prompting a parent (or an LEA if the LEA is requesting a hearing) to describe the nature of the problem and the proposed resolution. Regarding the nature of the problem in this dispute, the Parent wrote:

The District “placed [the Student] in special education because the school psychologist said so. It wasn’t the proper placement so now [Student] is far behind and may never catch up because [Student] sat in special education. [Student] was placed in special education incorrectly. Now [Student] is far behind and [Student] may never catch up.”

The only remedy the Parent seeks is “compensatory education and a tutor so [Student] can catch up with Title One funds.”

During the hearing, the Parent clarified that her belief is that the Student should have had a Section 504 service agreement, and not an Individualized Educational Plan (IEP), that is, the Student should have received regular education accommodations, but not special education.

The District maintains that no remedy is due, making three alternative arguments. First, the District argues that the Parent has no right to request a due process hearing because the Parent claims that the Student is not disabled. Second, the District argues that it did not receive notice of the Parent’s belief that Student required a Section 504 Plan rather than an IEP prior to the day of the hearing. Third, the District argues that it provided a FAPE to the Student.

The evidence brought forth in the hearing clearly establishes that Student was correctly identified as a child with an SLD, and was eligible for special education under the IDEA. Further, up to the

1 In the interest of confidentiality and privacy, Student’s name and gender, and other potentially identifiable information, are not used in the body of this decision. The identifying information appearing on the cover page or elsewhere in this decision will be redacted prior to posting on the website of the Office for Dispute Resolution as part of its obligation to make special education hearing officer decisions available to the public pursuant to 20 U.S.C. § 1415(h)(4)(A) and 34 C.F.R. § 300.513(d)(2).

time the Parent revoked consent for special education programming, the District provided a FAPE and, therefore, no compensatory education is due.

Issue

Was Student denied FAPE under Section 504?

H-B-Southeast-Delco-ODRNo-ODRNo-19461-17-18-KE

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