JR vs. Upper Merion School District

PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER

DECISION
DUE PROCESS HEARING

Name of Child: JR

ODR #9527/08-09 KE

Date of Birth: xx/xx/xxxx

Dates of Hearing: January 29, 2009 March 9, 2009 March 25, 2009 May 11, 2009 December 1, 2009 December 3, 2009

CLOSED HEARING

Parties to the Hearing:

Upper Merion School District
435 Crossfield Road
King of Prussia, Pennsylvania 19406

Representative:
Tanya Alvarado, Esquire McAndrews Law Offices 30 Cassatt Avenue Berwyn, PA 19312

Mark Fitzgerald, Esquire
Fox Rothschild
Suite 200 PO Box 3001 Ten Blue Bell, Pennsylvania 19422

Date Record Closed: February 1 2010

Date of Decision: February 13, 2010

Hearing Officers:1 Deborah G. DeLauro, Esquire Linda M. Valentini, Psy.D., CHO

Background

The Student2 is a teen aged student residing in the District [District]. Student is currently considered to be in 12th grade and is attending an alternative educational program as of February 5, 2009.

Student attended parochial school prior to enrolling in the District for 9th grade in the fall of 2006. In 9th grade Student began exhibiting some truancy behaviors, but was able to maintain a sufficient academic average so as to be promoted to the 10th grade for the 2007-2008 school year. However, in 10th grade Student’s truancy pattern increased and Student’s grades deteriorated. By January 2008 the District and the Parents met to develop a Truancy Elimination Plan. The District referred Student to truancy court and also recommended that Student be placed in the alternative program that Student now attends. Believing that Student’s truancy was related to academic struggles, the Parents did not approve the alternative education placement and made a written request for a comprehensive psychoeducational evaluation to determine whether the truancy was related to an educational handicap, including possible difficulties in reading and/or paying attention in class. Following the completion of its evaluation in October 2008 the District found that Student was not eligible for special education. The Parents disagreed with the ER and filed for this due process hearing seeking an Independent Educational Evaluation (hereinafter “IEE”) at public expense in order to “comprehensively identify and address [Student’s] complete educational needs” which they believed the District had failed to do. The Parents also sought compensatory education from the 2006-2007 school year through the 2008-2009 school year for the District’s alleged violation of its Child Find obligations, failure to conduct a comprehensive educational evaluation and subsequent denial of a free appropriate public education.

The due process hearing was bifurcated in order to first determine the appropriateness of the District’s ER with the understanding that if the ER was found to be appropriate, the rest of Parents’ complaint was moot. If, however, the ER was found to be insufficient, the District would be ordered to fund an IEE and the due process hearing would be continued until the completion of the IEE in the light of which the second issue would be addressed.

For the reasons outlined below, the presiding hearing officer found the ER inappropriate and issued her ruling ordering an IEE on July 8, 2009 indicating that her full reasoning would be put forth in the final decision. For the reasons outlined below, both hearing officers found that Student is not eligible for special education under the IDEA, but is a protected handicapped student and as such is entitled to a 504 Service Plan, and that Student is entitled to compensatory education for a portion of the time requested in the complaint.

Issues

  1. Was the evaluation conducted by the District appropriate?
  2. Did the District fail in its child find responsibilities and therefore deny Student a free appropriate public education, and if so is Student entitled to compensatory education, in what kind and in what amount?
JR-Upper-Merion-ODRNo-9527-08-09-KE

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