PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER
DECISION
DUE PROCESS HEARING
Name of Child: Student
ODR #9629/08-09 AS
Date of Birth:
Dates of Hearing: April 28, 2009 June 5, 2009 July 29, 2009 July 30, 2009 October 5, 2009
CLOSED HEARING
Parties to the Hearing: Parents
School District
Downingtown Area School District 126 Wallace Avenue Downingtown, PA 19335-2643
Representative: Pro Se
School District Attorney
Andria B. Saia, Esq
Levin Legal Group
1402 Mason Mills Business Park 1800 Byberry Road
Huntingdon Valley, PA 19006
Date Record Closed: October 26, 2009
Date of Decision: November 10, 2009
Hearing Officer: Deborah G. DeLauro, Esq
Background
Student (hereinafter “Student”) is a teen-aged seventh grade student who is a resident of the Downingtown Area School District (hereinafter “District”). The Student qualifies for special education services under the categories of autism and mental retardation. Student received Homebound Services1 starting in February 2006 after Mr. and Mrs. (hereinafter “Parents”) removed Student from an approved private school placement2 (hereinafter “APS”) where Student had been restrained and closeted by staff. On March 13, 2006, Parents3 filed a Complaint with the Pennsylvania Department of Education (hereinafter “PDE”) and then requested a due process hearing on May 15, 2006. The District and Parents executed a Compensatory Education Agreement in June 2006.4
Parents through their attorney5 requested a due process hearing on January 13, 2009. However, on February 19, 2009, Parents, by that time, pro se, amended their Complaint to add additional claims going back to February 2006. The District filed a partial Motion to Dismiss based on the statute of limitations6 which was partially granted. [HO-1] Consequently, the first hearing session on April 28, 2009 was designated to determine the “knew or should have known” (hereinafter “KOSHK”) date and whether either of the two statutory exceptions7 applied. This Hearing Officer found that the KOSHK date was May 15, 2006 and that neither of the exceptions applied. [HO-3] Parents’ claims were initially limited to the period between May 15, 2008 and January 13, 2009; however, upon re- consideration, the Parents were permitted to present claims between May 15, 2008 and February 19, 2009, the date Parents’ claim was amended. [HO-4]
Parents allege that the District failed to provide Student with a Free Appropriate Public Education (hereinafter “FAPE”) by conducting untimely and inappropriate evaluations, which then resulted in an inappropriate Individual Education Plan (hereinafter “IEP”) dated June 18, 2009. Parents further allege that the June 2008 IEP was not implemented appropriately and that there were numerous procedural violations which in and of themselves resulted in a denial of FAPE. Finally, Parents also complain that the District retaliated against them because of their strong advocacy.
The District denies the allegations and further argues that there was no denial of FAPE because the IEP was reasonably calculated to provide and did in fact provide Student with meaningful progress in light of Student’s potential, and did so in the least restrictive environment. The District further asserts that the Parents have failed to demonstrate by a preponderance of the evidence that the District retaliated against them by complying with the compulsory school attendance law or by allegedly having two IEP meetings without them.
The hearing officer convened five hearing sessions in this matter from April 2009 until October 2009. The record was held open for receipt of written summations, which were received on October 26, 2009, at which time the record was closed.
Issues
- Whether the June 18, 2008 IEP was appropriate and was implemented appropriately?
- Whether the March 31, 2008 Re-Evaluation Report was appropriate?
- Whether the District committed procedural errors which resulted in a denial of FAPE?
- Whether the Student was denied a free appropriate public education from May 15, 2008 to February 19, 2009?
- If so, then what, if any compensatory education is owed to the Student?
- Whether the District retaliated against the Parents because of their advocacy?