Pennsylvania
Special Education Hearing Officer
DECISION
Child’s Name: S.C.
Date of Birth: [redacted]
ODR No. 18798-1617-AS
OPEN HEARING
Parties to the Hearing: Parent[s]
Upper Merion Area School District 435 Crossfield Road
King of Prussia, PA 19406
Representative:
Joseph W. Montgomery, Esquire Montgomery Law LLC
1420 Locust Street, Suite 420 Philadelphia, PA 19102
Mark W. Fitzgerald, Esquire Fox Rothschild LLP
10 Sentry Parkway, Ste. 200 P.O. Box 3001
Blue Bell, PA 19422-3001
Date of Hearing: March 17, 2017
Date of Decision: March 31, 2017
Hearing Officer: William F. Culleton, Jr., Esq., CHO
INTRODUCTION AND PROCEDURAL HISTORY
The child named in this matter (Student)1 is a high school aged resident of the District named in this matter (District). The District has placed Student in a private school (School) for one calendar year, as discipline for Student’s illicit possession of a knife and District property in school. Student is not identified as a child with a disability under the Individuals with Disabilities Education Act, 20 U.S.C. §1401 et seq. (IDEA). Nevertheless, Parents have requested due process, asserting that the District knew of Student’s disability before Student’s violation, thus entitling Student to IDEA protections pursuant to 20 U.S.C. §1415(k)(5)(Protections For Children Not Yet Eligible For Special Education And Related Services). Parents seek a manifestation determination, a finding that the School is an inappropriate placement, and orders permitting participation in extracurricular activities and expediting a District-proposed evaluation, 20 U.S.C. §1415(k)(5)(D)(ii).
The District denies any basis of knowledge that the Student was a child with a disability. In the alternative, it argues that its placement is appropriate and that acceleration of the proposed evaluation is inappropriate because, among other things, Parents have not returned a signed NOREP .
The hearing was conducted and concluded in one session. I have determined the credibility of all witnesses and I have considered and weighed all of the evidence of record. I conclude that the District had a basis of knowledge that Student was a child with a disability before the behavior that led to the disciplinary placement at the School, and I enter an order that applies the protections available under the IDEA.
ISSUES
- Did the District have knowledge that the Student was a child with a disability, as defined in the IDEA and its implementing regulations, prior to the conduct for which it transferred Student to the School?
- Is the District required to conduct a manifestation determination, and should the hearing officer order it to do so?
- Is the School an appropriate placement for Student pursuant to the requirements of the IDEA?
- Should the duration of the placement at the School be limited to 45 days?
- Is Student entitled by law to participate in extracurricular and after-school activities on District premises and should the hearing officer issue an order to permit such participation and access?
- Should the hearing officer order the District to expedite the proposed evaluation?