Pennsylvania
Special Education Hearing Officer
DECISION
Child’s Name: S. S.
Date of Birth: [redacted]
Dates of Hearing: 5/6/2016, 5/9/2016, 7/29/2016, 8/16/2016, 9/20/2016 and 9/22/2016
Closed HEARING
ODR File No. 17367-15-16
Parties to the Hearing:
Parents Parent[s]
Local Education Agency
Radnor Township School District 135 S. Wayne Avenue
Wayne, PA 19087-4117
Representative:
Parent Attorney
Judith Gran Esq.
Reisman Carolla Gran LLP 19 Chestnut Street Haddonfield, NJ 08033
LEA Attorney Gabrielle Sereni Esq. 19 W. Third Street Media, PA 19063
Date Record Closed: October 22, 2016
Date of Decision: November 6, 2016
Hearing Officer: Charles W. Jelley Esq. LL.M.
Background and Procedural History
This matter was initiated by the Student’s1 Parents through the filing of a due process complaint by Parents’ counsel. Six hearing sessions took place, with the last session ending on September 22, 2016. Both Parties requested extensions of the Decision Due Date at various times throughout the proceedings. Finding good cause after reviewing each written motion, the Decision Due Date was extended. The Parents contend the Radnor Township District (District) failed to provide the Student a free appropriate public education (FAPE), as defined in the Individuals with Disabilities Education Act (IDEA) and discriminated against the Student in violation of Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). The hearing officer directed the Parties to brief the issue whether the hearing officer has subject matter jurisdiction over the Student’s ADA discrimination claims. For the reasons set forth in the attached ruling, I am dismissing the ADA claim for lack of jurisdiction; therefore, the ADA claim is exhausted.
As a remedy for the District’s alleged violations of Student’s rights, the Parents ask the hearing officer to order the District to educate the Student in a regular education classroom for all regular/special education academic classes, special subjects and to provide all related services in the regular education classroom to the maximum extent appropriate. The Parents oppose the District’s proposal to provide the Student an additional 20 plus minutes a day of one-on-one pull-out specially-designed instruction outside of the regular education classroom. The Parents also contend the District failed to provide the Student with an appropriate reading instruction in the form of a systemic, structured, sequential, research-based reading program. The Parents argue that the Student’s reading program fails to include direct instruction in phonemic awareness, phonics, fluency, vocabulary, and comprehension. To remedy the alleged violations, the Parents are seeking hour-for-hour compensatory education for the time spent in 2nd and 3rd grade. Finally, the Parents contend the IDEA violations contributed to the District’s alleged discriminatory acts in failing to educate the Student, with supplemental aids and support, in the regular education classroom to the maximum extent appropriate.
On the other hand, the District argues that at all times it has provided the Student FAPE in the Least Restrictive Environment (LRE).
Prior to and throughout the proceedings, the Parties have zealously argued and advocated their positions. These advocacy efforts, however, have now resulted in a stalemate, as the Parties are no longer able to effectively communicate about the essential elements of the Student’s IEP. On two occasions, the District asked this hearing officer to Order the Parties to participate in a facilitated Individual Education Program (IEP) conference. On the eve of the final hearing session, in anticipation of future proceedings, the Parents filed a motion to direct the District to implement the Parent-selected reading program, change the Student’s pendent placement, and direct the District to implement a Positive Behavior Support Plan (PBSP)2. To address this communication logjam, my final Order will direct the District to provide detailed and specific specially-designed instruction in the least restrictive environment.
After reviewing the exhibits, the testimony, and the transcript, I find that the District failed to provide the Student a reading program that was reasonably calculated to provide meaningful benefit and significant learning. Although the Student did not receive FAPE, the District was not deliberately indifferent to the Student’s needs; therefore, I am dismissing the Student’s discrimination claim.
While I accept the recommendations of the Parent’s reading/literacy expert opinions about the Student’s reading program, I am rejecting the Parents’ inclusion expert’s multiple opinions that the District failed to appropriately educate the Student in the LRE with supplemental aids and supports. For the reasons set forth herein, the District is Ordered to provide the Student with compensatory education.
Statement of the Issues
Did the District fail to provide the Student with FAPE, in the least restrictive environment during the 2014-2015 school year? If the answer is yes, is the Student entitled to an equitable award of compensatory education?
Did the District fail to provide the Student with FAPE, in the least restrictive environment, during the 2015-2016 school year? If the answer is yes, is the Student entitled to an equitable award of compensatory education?
Did the District discriminate against the Student during the 2014-2015 school year? If the answer is yes, is the Student entitled to an equitable award of compensatory education?
Did the District discriminate against the Student during the 2015-2016 school year? If the answer is yes, is the Student entitled to an equitable award of compensatory education?
S-S-Radnor-Township-ODRNo-17367-15-16