PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER
Student: J.G.
Date of Birth: [redacted]
Hearing Dates: April 29, 2011; May 26, 2011; June 2, 2011;
ODR File Nos.: 1597‐10‐11JS – JG/WCSD
CLOSED HEARING
School District: Parties:
West Chester Area School District
West Chester Area School District Representatives:
Parent Attorney
Dean M. Beer, Esquire McAndrews Law Offices 30 Cassett Ave.
Berwyn, PA 19312
School District Attorney:
Sharon Wolff Montanye, Esquire Sweet, Stevens, Katz & Williams, LLP 331 East Butler Avenue
New Britain, PA 18901
Date Record Closed: June 7, 2011
Date Closings Submitted: June 29, 2011
Decision Date: July 8, 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‐teen‐aged Student, who resides with Mother and Father (hereinafter referred to as the “Parent”) in the West Chester Area School District (hereinafter referred to as “District”) and who was identified as an eligible Student with specific learning disabilities when Student was originally enrolled within the District in Student’s first grade year and continued to be identified as an eligible student pursuant to an IEP through the second grade year, however was determined ineligible upon re‐enrollment in the District in sixth grade. The student was enrolled in private school in the interim third, fourth and fifth grade years.
The Parent filed a due process complaint notice on March 16, 2011 (the “Complaint”) seeking compensatory education, reimbursement for tuition paid by the Parent for a unilateral placement in a private school as well as for reimbursement for an Independent Educational Evaluation (hereinafter referred to as “IEE”). The District’s Motion to Limit Claims was heard on April 29, 2011.
Following oral argument and for the reasons stated on the Record, claims were limited to those arising on or after November 19, 2006.1
A Due Process hearing ensued over three (3) sessions on April 29, 2011, May 26, 2011 and June 2, 2011.
Exhibits were submitted and accepted on behalf of the Parent as follows: P-9, P-10, P-11, P-12, P-13, P-14, P-15, P-16, P-17, P-18, P-19, P-20, P-21, P-24, P-25, p-26, P-27, P-29, P-30, P-31, P- 32, P-33, P-36, P- 37, P-38, P-39, P-40, P-41, P-42, P- 43, P-44, P- 45 and P-46.
Exhibits were submitted and accepted on behalf of the District as follows: S-1, S-2, S-3, S-4, S-5, S-6, S-7, S-8, S-9, S-10, S-11, S-12, S-13, S-14, S-15, S-16, S-17, S-18, S-20.
Exhibits were submitted and accepted on behalf of the Hearing Officer as follows: HO-1 – Appeals Procedures
HO-2 – 2008/2009 School Calendar
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, under both the IDEA and Section 5042 thereby entitling Student to compensatory education. Additional violations of the provision of a FAPE were asserted for failure to provide proper supports and specially designed instruction in failing to identify the Student as an eligible student with a specific learning disability. The Parent claims the offered 504 plan was wholly inadequate to permit meaningful educational benefit. Finally, the Parent seeks reimbursement for a neuropsychological evaluation, asserting that the Evaluation report conducted by the District in December of 2008 inappropriately determined needs.
The District denies these allegations and asserts the provision of a FAPE. Further, the District asserts that the student’s progress was sufficient as illustrated through PSSA scores as well as grades noted on regular reports of progress and that Student’s failure to thrive, if any, is as a result of the Student’s lack of effort and/or insecurities.
The fact pattern presented by this case is straightforward and simple. The core question is basic: did the District meet its obligation to recognize, assess and respond to the gaps in this Student’s performance or were the gaps ignored or ineffectively addressed by the District. The District responded inappropriately and often dismissively to the typography of this student’s learning style, increasingly significant downward trend in performance and to the concerns of the Parent. Accordingly, this student has
been denied a FAPE. The profile that the District failed to recognize is that the gaps in performance should have triggered assessment and specially designed instruction. Had the District been attentive to the many “red flags” which developed over the years, the specific learning disabilities and consequent need for specially designed instruction, and other supports, would have been discovered.
For the reasons that follow, Parents’ claim for an Independent Educational Evaluation at Public Expense is GRANTED. Compensatory Education, in the form more specifically enumerated in the attached Order, for the period from December 17, 2008 through the Student’s last day enrolled in the District, March 26, 2010 is GRANTED. The Request for reimbursement for tuition paid for the unilateral private placement is DENIED.
ISSUES
The issues presented at the hearing were as follows:
- Did the District fail to provide Student with FAPE in the District’s failure to identify the Student as an eligible child in need of specially designed instruction and in providing a Section 504 plan only?
- If the District did not provide a FAPE to the Student what compensatory education should be awarded?
- Is the Parent entitled to reimbursement for an Independent Educational Evaluation (an “IEE”) obtained by the Parent?1
- Is the Parent entitled to reimbursement for tuition paid for a unilateral placement to a private school? A decision on this issue must be framed in a three (3) part analysis:
- (a) Was the program and placement the District offered to the Student appropriate?
- (b) If the program and placement the District offered to the Student was not appropriate, was the placement unilaterally chosen by the Parents appropriate?
- (c) If the District did not offer the Student an appropriate program and placement and the placement unilaterally chosen by Parents was appropriate, are there equitable considerations that would serve to remove or reduce the District’s responsibility to reimburse the Parents for the Students tuition?