IW vs. School District Attorney

Pennsylvania
Special Education Hearing Officer

DECISION
ODR No. 13373-1213 AS

Child’s Name: I.W.
Date of Birth: [redacted]
Dates of Hearing: 2/11/13, 3/5/13, 3/28/13

CLOSED HEARING

Parties to the Hearing:

Parents Parents

School District Penn-Delco
2821 Concord Road Aston, PA 19014

Representative

Parent Attorney
Judith Gran, Esquire Reisman Carolla Gran
19 Chestnut Street Haddonfield, NJ 08033-1810

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

Date Record Closed: April 18, 2013

Date of Decision: May 4, 2013

Hearing Officer: Anne L. Carroll, Esq

INTRODUCTION AND PROCEDURAL HISTORY

Although Student has only been enrolled in the District since the beginning of the current school year, after transitioning from pre-school to school-age special education services, the due process complaint from which this decision arose is one of four complaints initiated by either Parents or the District during that time. The first complaint, filed by Parents, was withdrawn after a decision on the second complaint, filed by the District, which permitted a 45 day interim alternative educational placement in the District’s multiple disabilities support (MDS) class due to aggressive behaviors that the hearing officer found dangerous to peers.

The current (3rd) complaint was filed by the District after Parents renewed their request for an independent functional behavior assessment in December 2012. A subsequent complaint, filed by the District after Parents refused permission for a comprehensive District reevaluation, was consolidated for hearing with this case but dismissed at the third hearing session after the parties reached an agreement.

Just prior to the first hearing session in this case, Parents filed a motion for summary judgment, contending that the District’s “unnecessary delay” in filing a due process complaint to support the appropriateness of its FBA constituted a procedural IDEA violation and provides a sufficient basis for ordering an independent FBA without considering substantive issues relating to the District’s FBA. The motion was partially denied in an order dated March 24, 2013. (attached as an Appendix to this decision), but Parents were permitted to produce evidence of an adverse substantive effect on Student arising from the District’s delay in filing the complaint.

The hearing on the District’s due process complaint to support its FBA was held over three sessions from mid-February through the end of March. For the reasons described below, and after full consideration of the District’s FBA and all relevant circumstances concerning Student and the relationship between the parties, an independent FBA will be ordered.

ISSUES

  1. Did the School District violate IDEA requirements by unnecessarily delaying its process complaint after Parents requested an independent FBA?
  2. Is the functional behavioral assessment (FBA) conducted by the District appropriate?
  3. Are Parents entitled to an independent FBA based upon either an unnecessary delay by the District in filing a due process complaint or inappropriateness of the District FBA?
I-W-Penn-Delco-ODRNo-13373-1213-AS

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