SS vs. Upper Dauphin Area S.D.

PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER

Student’s Name: SS

Date of Birth: xx/xx/xx

O.D.R. #5635/05-06 LS

Dates of Hearing: September 6, 2005; October 11, 2005; October 13, 2005

Type of Hearing: Closed

Parties to the Hearing: Parents

School District Upper Dauphin Area S.D. 5668 State Route 209 Lykens, PA 17048

Represented by: Phillip Drumheiser P. O. Box 890 Carlisle, PA 17013

Represented by:
Jane Williams
P. O. Box 5069
New Britain, PA 17023

Date Written Closing Arguments Received: October 25, 2005

Date of Decision: December 7, 2005*

Hearing Officer: Linda J. Stengle

* HO notified parties that additional time would be need to issue decision by email.

Background

The student is xx years old and resides with her mother within the geographic area served by the Upper Dauphin Area School District (herein “District”). The student’s father died several years prior to the hearing. She has not been deemed eligible for special education supports and services. The parent requested the hearing asserting that the student was eligible for special education supports and services under IDEA and/or Section 504. She asserted that the student was entitled to compensatory education for the period from September 2003 through the culmination of this hearing, and she requested placement for the student in an alternate public school or a private school.

The district raised an objection to the sufficiency of the complaint by the parent, and I ordered that it be amended. Counsel for the parent amended the complaint in compliance with the Order, and the hearing was scheduled in accordance with IDEIA timelines after it was re- submitted. The parent received an unclear letter from the district stating that educational records would be destroyed. She requested and obtained an Order preventing the destruction of any records relating to the student.

After the record was generated and before the decision was rendered, the United States Supreme Court issued its ruling in Schaffer v. Weast (USSC, #04-698, 2005), changing the long time Third Circuit practice of placing the burden of proof on school districts in IDEA hearings. Schaffer was silent on the issue of burden of production but states that the burden of persuasion is on the requesting party in IDEA cases. In Pennsylvania, all special education due process proceedings are conducted in accordance with the due process hearing requirements identified in IDEA, so this case, which encompasses rulings under Section 504 of the Rehabilitation Act of 1973 and the IDEA is affected by Schaffer. Arguably, placing the burden of persuasion on the parent has always been the intention in Pennsylvania. Explicit language in the PARC Consent Decree (1973) states that districts could very easily fulfill their burdens of production by presenting their reports (IEPs, ERs) for a hearing, and then outlines several parent-directed “rights,” or opportunities, for the presentation of evidence.

Issues

Is the student eligible for special education supports and services under IDEA and/or Section 504?

If so, is the student entitled to compensatory education for the period from September 2003 through the culmination of this hearing?

What is appropriate program and placement for the student for the current school year? Specifically, should the student be placed in an alternate public school or a private school?

SS-Upper-Dauphin-Area-ODRNo-5635-05-06-LS

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