JZ vs. Philadelphia School District

Pennsylvania
Special Education Hearing Officer

DECISION

Child’s Name: J.Z.

Date of Birth: [redacted]

Dates of Hearing:

December 19, 2012 February 6, 2013 February 8, 2013 March 1, 2013 March 13, 2013 March 14, 2013 March 20, 2013

CLOSED HEARING

ODR Case #13127-1213AS

Parties to the Hearing: Parent

Philadelphia School District 440 North Broad Street Philadelphia, PA 19130

Representative:

Ms. Caryl Oberman, Esquire 705 North Easton Road Willow Grove, PA 19090

Mr. Brian Subers, Esquire
Fox Rothschild LLP
10 Sentry Parkway / Suite 200 P.O. Box 3001
Blue Bell, PA 19422-3001

Date Record Closed: April 24, 2013

Date of Decision: May 14, 2013

Hearing Officer: Jake McElligott, Esquire

INTRODUCTION AND PROCEDURAL HISTORY

[Student] (“student”) is [an elementary school-aged] student residing in the Philadelphia School District (“District”). The parties agree that the student qualifies under the terms of the Individuals with Disabilities in Education Improvement Act of 2004 (“IDEA”)1 for specially designed instruction/related services for autism and speech and language impairment.

As the result of compensatory education hours received as the result of a settlement agreement from a prior dispute between the parent and an early intervention provider, the student received home-based services since January 2012. Over the spring and summer 2012, as the 2012-2013 school year approached, the student’s kindergarten year, the parties could not agree on the educational program for the current school year. In October 2012, parent filed the special education due process complaint that led to these proceedings. Parent claims that the individualized education plan (“IEP”) proposed by the District for the 2012-2013 school year is inappropriate. The District counters that the program proposed for the student is appropriate.

The student continued to receive privately-obtained home-based services as the 2012-2013 school year commenced and over the course of the school year. As the result of rescheduling mutually requested by the parties, the initial hearing session was not held until December 19, 2012. At the initial session, for the first time, the parties concurred that an initial issue was parent’s claim that pendency applied to the student’s home-based programming. The December 19, 2012 and February 6, 2013 sessions were devoted solely to opening statements and evidence regarding pendency. The February 8, 2013 session was a conference call session for oral argument on the issue of pendency. On February 18, 2013, this hearing officer issued an interim ruling, holding that pendency did not apply and that the District was not responsible, as the result of pendency, for the student’s private home-based programming.

Therefore, parent’s claim for retrospective remedy is a request for reimbursement of private family resources (i.e., use of the compensatory education hours) due to the District’s alleged failure to offer a program that is reasonably calculated to yield meaningful education benefit (a claim for remedy explicitly framed in this way for the parties in the February 18th ruling). Additionally, as set forth above, parent claims that the proposed IEP for the 2012-2013 school year is inappropriate going forward. The District maintains that the proposed IEP is appropriate.

For the reasons set forth below, I find that the District proposed an IEP for the 2012-2013 school year that was, on balance, largely appropriate. There were, however, some non-fatal flaws in the IEP which will be addressed in the order. And given the need to plan for the 2013-2014 school year, the order will also address explicitly issues related to the transition of the student for the upcoming school year.

ISSUES

Is the proposed IEP for the 2012-2013 school year appropriate?

If not, is parent entitled to reimbursement of private resources expended for the home-based programming
for the 2012-2013 school year?

If not, what should the student’s educational program entail going forward?

J-Z-Philadelphia-ODRNo-13127-1213AS

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