Special Education Hearing Officer
Child’s Name: [redacted]
Date of Birth: [redacted]
Date of Hearing: September 6, 2016
ODR Case # 17822-1516AS
Parties to the Hearing: Parent[s]
Burrell School District 1020 Puckety Church Road Lower Burrell, PA 15068
Pamela Berger, Esquire 434 Grace Street Pittsburgh, PA 15211
Patricia Andrews, Esquire Andrews & Price
1500 Ardmore Boulevard Suite 506
Pittsburgh, PA 15221
Date of Decision: September 27, 2016
Hearing Officer: Michael J. McElligott, Esquire
INTRODUCTION AND PROCEDURAL HISTORY
[The student] (“student”)1 is a [mid-teenaged] student who has been identified as a student with a disability under the Individuals with Disabilities in Education Improvement Act of 2004 (“IDEA”)2. The student no longer resides in the Burrell School District (“District”). The student resided in the District from 2008 to 2013. Parent claims that the District failed to identify the student as eligible under IDEA when it evaluated the student in August 2009.
The parent filed her initial complaint in May 2016 and an amended complaint in July 2016. In her amended complaint, the parent claimed that the District withheld information required to be provided to her under IDEA, a withholding that prevented her from filing a special education due process complaint. The hearing officer requested from the parties offers of proof on the date that parent knew or should have known of the action that formed the basis of her complaint (“KOSHK date”) to determine whether parent had complied with the 2-year statute of limitations filing requirement. (34 C.F.R. §§507(a)(2), 300.511(e); see G.L. v. Ligonier Valley School Authority, 801 F.3d 602 (3d Cir. 2015)).
Timely offers of proof were submitted by each party, and the hearing officer ruled that the May 2016 complaint, alleging that the August 2009 evaluation report failed to identify the student, was untimely as it was filed beyond two years of the action that formed the basis of the parent’s complaint. The hearing officer noted, however, that allegations of withholding of information in the July 2016 amended complaint required an evidentiary record to see if the withholding exception applies to the 2-year statute of limitations filing requirement. (34 C.F.R. §300.511(f); see D.K. v. Abington School District, 696 F.3d 233 (3d Cir. 2012)).
For the reasons set forth below, I find the evidence on this record in terms of the withholding exception to be in equipoise. Therefore, parent has failed to carry her burden of persuasion on the withholding issue, and the complaint will be dismissed.
Did the District withhold information from the parent that prevented her from filing a timely complaint based on the results of the August 2009 evaluation?Student-Burrell-ODRNo-17822-1516AS