ODR No. 01481-1011 KE ODR No. 01589-1011 KE (Consolidated)

NAME OF CHILD: I.H. DOB: [redacted]

DATES OF HEARING: November 17, 18 and 19, 2010

RECORD CLOSED: December 10, 2010
DATE OF DECISION: December 25, 2010

Parties to the Hearing


The Cumberland Valley School District 6746 Carlisle Pike
Mechanicsburg, PA 17050


Philip Drumheiser, Esq. P.O. Box 126
Carlisle, PA 17033

Judith A. Gran, Esq. Reisman Carolla Gran 19 Chestnut St. Haddonfiled, NJ 08003

Mark Cheramie Walz, Esq.
Sweet, Stevens, Katz & Williams, LLP 331 Butler Ave., P.O. Box 5069
New Britain, PA 18901

Introduction and Procedural History


D.S. (Guardian) is the grandmother and legal guardian of Student.1 The instant matter is the third and fourth due process hearing between the Guardian and the Cumberland Valley School District (District). The prior two hearings are I.H. v. Cumberland Valley Sch. Dist., ODR No. 01054-0910 AS (McElligott, June 9, 2010) (I.H. 1) and I.H. v. Cumberland Valley Sch. Dist., ODR No. 00908-0910 KE (McElligott, July 31, 2010) (I.H. 2).2

In I.H. 1, Hearing Officer McElligott considered the appropriateness of an extended school year (ESY) placement that the District offered to the Student for the summer of 2010. In I.H. 1, the parties had stipulated what services the Student should receive in the summer. The only question was whether the District had proposed an appropriate location in which to deliver those services. The District had proposed to deliver summer programming in the middle school that the District envisioned the Student being placed in the 2010-2011 school year. The District made this choice, in part, so that the Student would have an easier time transitioning to that middle school. I.H. 1 at 4. The Guardian and the Student preferred a different middle school because the Student had a negative association with the proposed middle school and because Student’s friends attended the other middle school. Id at 5. The middle school that the Guardian preferred is the Student’s neighborhood school, which the Student attended during some of the 2009-2010 school year. Hearing Officer McElligott found that the proposed middle school was an appropriate location to deliver ESY services in the summer of 2010.

I.H. 2 was initiated by the District pursuant to 34 CFR 300.502(b)(2) to defend its reevaluation report (RR) of December 2009 after the Guardian requested an independent educational evaluation (IEE) at public expense. Hearing Officer McElligott found a number of significant substantive flaws in the December 2009 RR: it included no new assessments or updated data at a time when the Student was experiencing significant difficulties in school; it did not include dates that would allow a reader to “follow the flow of assessment data over time;” data was added to the December 2009 RR without the Guardian’s consideration and the team did not meet to discuss this data; and the December 2009 RR failed to consider the “various diagnoses of Asperger’s Syndrome or other diagnoses related to the autism spectrum … swirling around [the Student].” I.H. 2 at 7-8. As such, Hearing Officer McElligott found in favor of the Guardian.


The Guardian initiated a third hearing on August 25, 2010. That hearing request was assigned ODR No. 01481-1011 KE. In that hearing request, the Guardian demanded compensatory education from March 19, 20073, revisions to the December 2009 RR, revisions of the Student’s IEP to include recommendations from an independent school psychologist, and placement at in the same middle school that the Guardian preferred in I.H. 1.4

The Guardian initiated a fourth hearing on September 19, 2010. That hearing request was assigned ODR No. 01589-1011 KE. In that hearing request, the Guardian demands that the District withdraw a Permission to Reevaluate form (PTRE) dated September 14, 2010 and “incorporate” eligibility categories identified by an independent school psychologist and an independent neuropschologist. This hearing was consolidated with ODR No. 01481-1011 KE.

A number of pre-hearing motions followed. Most significantly, the District moved to dismiss claims arising prior to August 25, 2008. The District argued that the limitation periods of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (IDEA) apply to this case, making claims arising more than two years prior to the filing of 01481-1011 KE time-barred by statute. In response, the Guardian argued that exceptions to the IDEA’s limitations period, found at 20 U.S.C. § 1415(f)(3)(D)(i) and (ii) apply in this case, and that all of the facts giving rise to the exceptions are not specifically detailed in the hearing request. The Hearing Officer resolved the issue by denying the District’s motion but ordering the Guardian to submit an offer of proof explaining the facts that she believed gave rise to either exception. The Guardian complied by submitting the offer of proof. The District then renewed its motion to dismiss time-barred claims and the Guardian moved in opposition to the District’s motion.

With the limitations issue thoroughly briefed, the Hearing Officer took the facts alleged in the Guardian’s offer of proof as true and issued a pre-hearing order that claims arising on or before June 8, 2008 are time-barred. A complete legal analysis of that pre-hearing decision is stated in H-8.5


There has been some debate as to what issues are properly presented in this matter. Relying on 34 C.F.R. § 300.511(d), the District argues that any issue not raised in the due process complaints are not properly before the Hearing Officer. The cited regulation precludes issues not raised in the complaint “unless the other party agrees otherwise.” Id. At the start of this hearing, the Hearing Officer stated what he understood the issues to be. N.T. at 27-29. Both parties agreed with the Hearing Officer’s recitation of the issues. N.T. at 28. As such, the issues in this hearing are:

  1. Is the Student entitled to compensatory education from June 2008 to the present?
  2. Should the Student be placed in the neighborhood school and, if so, what services should the Student receive there?
  3. Should the District incorporate the findings of the two prior IEEs into the student’s IEP?
  4. Should the District withdraw its currently pending evaluation request?

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