Special Education Hearing Officer
ODR No. 1442-1011KE
Child’s Name: N.H.
Date of Birth: [redacted]
Dates of Hearing: 4/28/11, 5/17/11, 5/23/11, 6/6/11, 6/22/11, 7/21/11
Parties to the Hearing:
16 Weldon Drive Doylestown, PA 18901-2359
Ilene Young, Esquire 50 East Court Street Doylestown, PA 18901
School District Attorney Joanne Sommer, Esquire Eastburn and Gray
60 East Court Street Doylestown, PA 18901
Date Record Closed: August 9, 2011
Date of Decision: August 16, 2011
Hearing Officer: Anne L. Carroll, Esq.
INTRODUCTION AND PROCEDURAL HISTORY
Student in this case has physical disabilities and impairments that adversely affect all aspects of life and are associated with significant limitations on Student’s ability to learn and otherwise function successfully in school. Student moved into the District at the beginning of the 2008/2009 school year and began attending a life skills program in a District elementary school, where Student had regular education inclusion experiences primarily with a 4th grade class. Although Student was classified as a 6th grader, and, therefore, would ordinarily have moved to middle school for the 2009/2010 school year, the IEP team determined that Student should remain at the elementary school for the following school year. Again, Student’s regular education setting was 4th grade, and at Parents’ insistence, Student’s inclusion in regular education classes was significantly increased.
For the 2010/2011 school year, Parents reluctantly agreed to move Student to a middle school life skills support class as the District proposed, although they had serious reservations with respect to whether Student would receive sufficient academic instruction and sufficient appropriate inclusion with non-disabled peers. Due to Student’s growing and ultimately extreme resistance to going to school, Parents did not return Student to school after the winter holiday and filed a due process complaint alleging both an IDEA violation for a denial of FAPE and discrimination on the basis of disability in violation of §504 of the Rehabilitation Act of 1973.
The hearing was held over five sessions from May to July 2011. Based upon the findings of fact and applicable legal standards as discussed below, Student will be awarded full days of compensatory education for 2010/2011 school year for the District’s violation of both IDEA and §504 of the Rehabilitation Act.
- Did the School District (District) fail to provide a free, appropriate public education (FAPE) to (Student) during the 2010/2011 school year?
- Did the District intentionally discriminate against Student on the basis of disability in violation of §504 of the Rehabilitation Act of 1973?
- Is Student entitled to an award of compensatory education for denial of a FAPE and/or disability-based discrimination, and if so, for what period, in what amount and in what form?
- Should the District be permitted to conduct a Functional Behavioral Assessment (FBA) of Student?