IB vs. Southeast Delco School District

PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER

DECISION
DUE PROCESS HEARING

Name of Child: I.B.

ODR #19476/17-18 KE

Date of Birth: [redacted]

Date of Hearing: August 18, 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: September 6, 2017

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

Background

Student1 is a pre-teen aged student who was formerly enrolled in a District school. The Student was identified in 1st 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) and a Speech/Language Impairment. As such, the Student was also regarded 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, on July 6, 2017 the Parent requested this hearing in a complaint written on a form promulgated by the Pennsylvania Training and Technical Assistance Network (PaTTAN). On July 14, 2017 the Parent filed an amended complaint.2 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.

On the original complaint the Parent wrote:

“[Student] should not have been placed in special education. That was a mistake on the District’s part. [Student] was able to be in a regular setting. Because Student sat in special education when it wasn’t needed [Student] is behind.”

On the amended complaint the Parent wrote:

“and gets SSI for this skin disorder also depression. Both situations affected the way [Student] could learn especially since the school nurse constantly sent [Student] home for said skin disorder condition. [Student] should have been given a 504 plan not thrown in special education. That was not the proper placement. Now [Student] is far behind because [Student] sat in special education for so long [Student] may never catch up. [Student] was able to be in a regular education setting with 504 accommodations.”

“They said you said [Student] wasn’t disabled this complaint should be dismissed. I never said that as I explained above.” The only remedy the Parent seeks is “compensatory education and a tutor with Title One funds”. The District maintains that no remedy is due. First, the District argues in an August 16, 2017 motion to dismiss that the Parent has no right to a due process hearing under IDEA because the Parent claims that the Student is not disabled. Second, at the hearing the District argued that it did not receive notice of the Parent’s belief that Student required a Section 504 Plan rather than an IEP until it received the amended complaint. Third, the District argues that it provided a FAPE to the Student and the Student suffered no educational harm.

For the reasons set forth below I find in favor of the District.

Issue

As the Parent’s IDEA claim was not dismissed upon the District’s motion at the outset of the hearing, the parties agreed on the record to the following issue:

Did the District improperly place the student in special education, and if so, was there harm, and if so, what is the remedy?

In light of the Parent’s Section 504 claims, the second issue in this matter is: Was Student denied FAPE under Section 504?

I-B-Southeast-Delco-ODRNo-9476-17-18-KE

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