KC vs. Upper Perkiomen School District

I. Background and Procedural History

A. Background

The Student (DOB.xx/xx/xx) is a resident of the Upper Perkiomen School District (the “District”) who currently attends the District’s middle school. This matter involves a parental request for tuition reimbursement of costs associated with placement of their then-[redacted age] daughter at the [Redacted Private School (Private School)] for the 2004-2005 school year. The Student had attended another private school, [First Private School] at parent expense for the 2003-2004 school year. The Student was identified as having an orthopedic impairment during the 2002-2003 school year while she attended the District’s Elementary School. The parents assert both procedural and substantive issues as to why they believe that the District’s proposed IEP for the 2004-2005 school year was not appropriate and that the [Private] School was an appropriate alternative to the District’s inappropriate offer. The District asserts that it offered the Student a free appropriate public education based upon the information to which the parents gave it access and that the equities favor a denial of the parents’ request for tuition reimbursement.

B. Procedural History

The Office for Dispute Resolution received the parents’ hearing request in this matter on August 28, 2005. In their Due Process Complaint Notice, the parents asserted

The District denied Student FAPE for the 2004-2005 school year. The district failed to provide an Evaluation Report prior to conduct an IEP Team Meeting. The district refused to address or incorporate their evaluations into the IEP. The district failed to have the appropriate IEP Team Members attend the IEP Team Meeting. The district held a 2nd IEP Team Meeting without providing an ER prior to the meeting. Furthermore, the district did not allow Student’s parents to attend the 2nd IEP Team Meeting.

Their proposed resolution was that “The District should reimburse the tuition costs for the 2004-2005 school year where Student attended [Private] School.”

On September 9, 2005, the District challenged the sufficiency of the “Family Complaint,” specifically that the first sentence did not provide a statement of the nature of the problem. On September 14, 2005, the hearing officer rendered a decision on the sufficiency challenge of the “Family Complaint” finding that the first sentence of the complaint related to the denial of FAPE for the 2004-2005 school year provided no description of the nature of the problem nor did it include facts relating to such problem. On September 21, 2005, the timeframe for the 30 day resolution period contained in Section 1415(f) recommenced when the parents amended their complaint. Therein the parents provided the following position:

The District denied FAPE for the 2004/2005 school year because of the following:

1. The District did not provide their independent Auditory Processing Evaluation Report to the IEP Team prior to, or at the IEP Team meeting (8/9/04).
2. The District did not have an individual, as a member of the IEP Team, who could interpret the instructional implications of the Auditory Processing Evaluation results.
3. The District held a 2nd IEP Team Meeting (8/26/04) without allowing Student’s parents to attend.
4. The IEP offered by the District (after they held a 2nd IEP Team Meeting without Student’s parents in attendance) is not designed to meet Student’s needs.

Once again their proposed resolution was that “The District should reimburse the tuition costs for the 2004-2005 school year where Student attended [Private] School.”

By the end of the 30 day resolution period which terminated on October 20, 2005, the parties were unable to resolve their dispute without a hearing, so several attempts were made to schedule a time and date that were convenient to both parties. Hearing sessions were held on November 9, 14 and 29, 2005.

On November 4, 2005, the hearing officer received a voicemail message from the Student’s mother explaining that the district had not arranged for the attendance at the hearing of the individual who completed the Student’s central auditory processing evaluation. After the hearing officer investigated the parent’s complaint through direct contact with the parents, the district and the requested witness, it became evident that the evaluator was not willing to provide testimony in this matter. The hearing officer indicated that she would issue a subpoena to attempt to compel the evaluator’s participation in the hearing, but the parents indicated on the record that they did not wish to pursue such a course of action.

On November 15, 2005, after the hearing had begun, the U.S. Supreme Court issued its decision in Schaffer v. Weast, Docket No. 04-698 (November 14, 2005), 546 U.S. ___ (2005), which established for the first time that the burden of persuasion at an impartial due process hearing lies on the party seeking relief. Slip Op. at 1. Because this decision overturned what had been the applicable burden in the Third Circuit when the hearing started, the hearing officer ruled sua sponte that she would continue to apply the applicable burden of proof that pre-dated the Supreme Court’s decision in Schaffer.