SM vs. Bristol Township School District

Pennsylvania
Special Education Hearing Officer

DECISION
Child’s Name: SM
Date of Birth: xx/xx/xx

Dates of Hearing: July 20, 2009

CLOSED HEARING

ODR#9931/08-09 KE

Parties to the Hearing:

Ms. Ellen Budman, Superintendent Bristol Township School District 6401 Mill Creek Road
Levittown, PA 19057

Representative: Pro Se

School District Attorney
Heather L. Durrant, Esquire Rudolph, Pizzo & Clarke, LLC Eight Neshaminy Interplex, Ste. 215 Trevose, PA 19053

Date Record Closed: July 27, 2009

Date of Decision: August 11, 2009

Hearing Officer: Deborah G. DeLauro

I. BACKGROUND

Student is an elementary age resident of the Bristol Township School District (hereinafter “District”) who has just completed the third grade at the [redacted] Elementary School (hereinafter “School”). Although Student has a history of attention problems, Student is on grade level in both reading and math. In March 2008 when Student was in the second grade, Ms. (hereinafter “Parent”) requested that her child be tested to determine whether the child qualified for special education services through an Individual Education Plan (hereinafter “IEP”). The Parent requested the evaluation due to her concerns regarding Student’s academic performance. The District conducted an initial evaluation (hereinafter “ER”) in May 2008 and although there were indications of attention problems, auditory comprehension difficulties and motivation, found that Student did not qualify for specially designed instruction under the Individuals with Disabilities Education Improvement Act (hereinafter “IDEIA”). The District also found that Student did not qualify for a Section 504 Service Plan under the Rehabilitation Act of 1973 (hereinafter “Section 504”) The Parent disapproved the Notice of Educational Placement (hereinafter “NOREP”) and after unsuccessful attempts to resolve the dispute through Mediation and further due process, requested that the District fund an Independent Education Evaluation (hereinafter “IEE”). The District agreed and an independent neuro-psychological evaluation was conducted in January 2009 which resulted in an IEE report in February 2009. The District reviewed the IEE as well as a speech and language evaluation, an issued a Re-Evaluation Report (hereinafter “RR”) in April 2009 again finding Student ineligible for both special

education services under IDEIA and accommodations under Section 504. In addition, an Auditory Processing Evaluation was conducted by the District in April 2009 which found Student to have underdeveloped auditory skills and recommended compensatory strategies. In April 2009, Parent filed a request for a due process hearing with the Office for Dispute Resolution (hereinafter “ODR”). After a Sufficiency Challenge filed by the District, the Parent amended her Complaint in May 2009 wherein she specifically requested that if her child did not qualify for special education services under the IDEIA, that Student be provided with a Section 504 Service Plan. Accordingly, a due process hearing was held in July 2009 to determine the following issues.

II.ISSUES

1. Whether the District failed to identify Student as a student with a disability under IDEIA?

  1. 1)  Whether the District’s evaluation was appropriate?
  2. 2)  Whether the District appropriately considered the independent educational evaluation conducted by [independent evaluator]?
  3. 3)  If not, then whether Student qualifies for a Section 504 Service Plan under the Rehabilitation Act of 1973?

For the reasons stated below, this hearing officer finds that the District’s evaluation is appropriate; that Student does not qualify for specially designed instruction under the IDEIA; but that the District did not properly consider the independent educational evaluation; and based on the weight of the evidence, Student does qualify for accommodations and modifications under Section 504.

SM-Bristol-Township-ODRNo-9931-08-09-KE

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