JP vs. Christina Stephanos, Esquire

DECISION

DUE PROCESS HEARING

File No.: 14020/12-13AS

PRELIMINARY MATTERS

A prehearing conference by telephone conference call was convened in this case on June 28, 2013. As a result of said conference, a Prehearing Conference Order was entered herein. Said Order is incorporated by reference herein.

Prior to the hearing, counsel for the School District filed a motion to extend the hearing officer’s decision deadline. The motion was unopposed. The motion was granted, and the hearing officer’s decision deadline was extended to September 10, 2013.

Prior to the hearing, counsel for the parties filed a joint prehearing memorandum. Said memorandum contains numerous stipulations of fact, and it defines the issue presented for purposes of this due process hearing. Said memorandum also contains information concerning exhibits and witnesses. The parties’ joint prehearing memorandum is incorporated by reference herein.

[1]

At the outset of the hearing, a number of preliminary matters were addressed at the beginning of the hearing. A subpoena was issued at the request of the parent. The witness who was subpoenaed did not testify at the due process hearing.

During a telephone conference prior to the hearing, counsel for the parent alleged that there were certain documents used in preparing the school district’s evaluation that the parent had not yet seen. Counsel for respondent contended that counsel for the parent had in fact seen the documents, however, the hearing officer ordered at said telephone conference that any documents used in the evaluation process but not currently listed by the parties as exhibits be provided at the hearing. Certain additional documents were produced and provided by the school district and were entered into evidenced as Hearing Officer Exhibits 1, 2 and 3 (hereafter referred to as HO -1 to HO-3) at the hearing.

Also near the beginning of the due process hearing, counsel for the parent raised a motion to recuse the hearing officer. The basis of the motion is that the full- time Pennsylvania hearing officers are not assigned to hearings in the area covered by the Central Susquehanna Intermediate Unit because they are employed by that entity. The hearing officer denied said motion because it was not timely filed. In addition, the motion was denied on the merits because the parent failed to show actual bias. The discussion on the record concerning said motion is incorporated by reference herein.

[2]

Concerning the merits of the motion, the legal standard is that an IDEA hearing officer enjoys a presumption of honesty, integrity and freedom from bias that may be overcome only by proving a substantial countervailing reason to conclude that the hearing officer was actually biased with respect to the party. See, L.C. & K.C. on behalf of N.C. v. Utah State Board of Educ., et al 43 IDELR 29 (10th Cir. 3/21/2005). In order to prevail on a motion for recusal of an IDEA hearing officer, a party must rebut the presumption of honesty, integrity and freedom from bias by a showing of conflict of interest or some other specific reason indicating actual bias. Dell ex rel Dell v. Township High Sch Dist 113 32 F.3d 1053, 21 IDELR 563 (7th Cir. 8/9/1994); Roland M v. Concord Sch Comm 910 F.2d 983, 16 IDELR 1129 (1st Cir. 8/3/1990); MN v Rolla Public Sch Dist # 31 59 IDELR 44 (WD Missouri 6/6/12); GM by Marchese v Drycreek Joint Elementary Sch Dist 59 IDELR 223 (ED Calif 9/7/12); Nickerson-Reti v Lexington Public Schs 59 IDELR 282 (D Mass 9/27/12); ES & MS ex rel BS v. Katonah-Lewisboro Sch Dist 742 F.Supp.2d, 55 IDELR 130 (SD NY 9/30/2010) WT & KT ex rel JT v. Bd of Educ Sch Dist of NY City 716 F.Supp.2d 270, 54 IDELR 192 (SD NY 4/15/2010); LF by Ruffin v. Houston Indep Sch Dist 53 IDELR 116 (S.D. Tex 9/21/2009); HH by Hough v. Indiana Bd of Special Educ Appeals 47 IDELR 250 (N.D. Ind. 4/12/2007); McComish v. Underwood Public Schs 49 IDELR 215 (D. ND 3/6/2008); Thomas ex rel A.J. v. District of Columbia 44 IDELR 246 (D.D.C. 7/29/2005). In this case, the [3]

parent failed to allege or show any actual bias. Accordingly, the motion was also denied on the merits as well as on the basis of untimeliness.

Three exhibits offered by the parent were not admitted into evidence because relevance objections by the school district were sustained. Accordingly, Parent’s Exhibits 28, 29 and 31 were not considered in preparing this decision. In the event that a reviewing court might disagree with this evidentiary ruling, however, Parent’s Exhibits 28, 29 and 31 were placed in a sealed manila envelope and will be transmitted to the Office of Dispute Resolution with the rest of the exhibits in the hearing record, although they were not considered in the preparation of this decision.

Subsequent to the hearing, both parties filed written briefs and proposed findings of fact. All proposed findings, conclusions and supporting arguments submitted by the parties have been considered. To the extent that the proposed findings, conclusions and arguments advanced by the parties are in accordance with the findings, conclusions and views stated herein, they have been accepted, and to the extent that they are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues as presented. To the extent that the testimony of various witnesses is not in accord with the findings as stated herein, it is not credited.

[4]

Personally identifiable information, including the names of parties and similar information, is provided on the cover sheet hereto which should be removed prior to distribution of this decision to the public. FERPA, 20 U.S.C. § 1232(g) and IDEA § 617(c).

ISSUE PRESENTED

The issue presented at the due process hearing, as identified by the parties in the prehearing conference and confirmed in their joint prehearing memorandum, is as follows:

1. Was the March 4, 2013 evaluation of the student by the school district legally appropriate and, if not, should the parent’s request for an independent educational evaluation at public expense be approved?