NM vs. Wyoming Valley West School District

Pennsylvania
Special Education Hearing Officer

DECISION

Child’s Name: N.M.

Date of Birth: [redacted]

Dates of Hearing: 6/16/2016

Closed HEARING

ODR File No. 17397-15-16

Parties to the Hearing:

Parents Parent[s]

Local Education Agency
Wyoming Valley West School District 450 North Maple Avenue
Kingston, PA 18704

Representative:

Parent Attorney
Drew Christian Esq.
105 Claremont Avenue Clarks Summit, PA 18411

LEA Attorney
Angela J Evans Esq.
2 South Main Street, Suite 303 Pittston, PA 18640

Date of Decision: August 12, 2016

Hearing Officer: Charles W. Jelley Esq. LL.M.

Burden of Proof

The burden of proof, generally, consists of two elements: the burden of production and the burden of persuasion. The burden of persuasion lies with the party asking for the hearing. If the moving party provides evidence that is equally balanced, or in equipoise, then the party asking for the hearing cannot prevail, having failed to present sufficient evidence.3 In this case, the Parents asked for the hearing and thus bore the burden of proof. There were instances of conflicting testimony where credibility and persuasiveness determinations were made to establish a fact. Some witnesses were, however, more persuasive on some points than others. In each instance, this hearing officer was able to draw inferences from which one could ultimately determine the facts.

Compensatory Education

In G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015) the court endorsed a “complete” make whole remedy favoring relief for the entire period of the violation G.L. 802 F.3d at 626. Compensatory educations “ ‘accrue[s] from the point, that the school district knows or should know of the injury to the child, and the child ‘is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem”. ” 20

G.L.’s adoption of the “make whole” remedy, however, left unanswered several threshold questions. First, assuming the parent’s complaint is timely G.L. did not address how far back the parent could claim a denial. Second, G.L. did not address the question how the make whole remedy would factor in injuries, violations or claims, that are otherwise barred by 20 U.S.C. §1415(f)(3)(C). Third, GL did not comment on who bears the burden of proof in substantiating the type of services or the amount of compensatory education relief. Fourth, GL did not describe what a hearing officer should do when parents establish liability for FAPE violation(s), yet do not meet their burden of proof to quantify the amount of the “make whole” relief. One option is to adopt the MC “cookie cutter” approach. The second option is to employ the Reid “qualitative” approach. The third compensatory education option is to make an equitable determination about the time and services necessary to provide appropriate relief.21 Each option, however, assumes the record is properly developed to support an equitable finding. This decision implicates questions of first impression three and four,

Compensatory education is appropriate relief that is intended to compensate a disabled student, who has been denied the individualized education guaranteed by the

20 G.L. at 618-619 quoting M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 396-97 (3d Cir. 1996) (citations omitted).

21 . G.L. at 618-619 quoting M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 396-97 (3d Cir. 1996) (citations omitted).

10

IDEA.22 Compensatory education should place the child in the position they would have been in but for the violation. 23

As an equitable remedy, compensatory education is intended to provide more than “some benefit” or for that matter “meaningful educational benefit and significant learning.”24 The factors included in the compensatory education relief hinge on student specific facts like how much more progress the student might have shown if he or she had received the required special education services, the student’s age, ability, past achievement, stage of learning, unmet needs, and the student’s current present level. Therefore, the make whole calculation requires some evidence about the type and amount of services needed to place the student in the same position he or she would have occupied but for the LEA’s violations of the IDEA.25 Also after GL following MC, the parents must establish when the District either “knew or should have known” the child was not receiving FAPE.26 Assuming a finding of a denial of FAPE, the District, on the other hand, must produce evidence on what they suggest is the length of a reasonable rectification period to put the child back on the correct path. Id. Whether the parents follow Reid or MC, the make whole remedy must be supported by the record evidence. Id.

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