Special Education Hearing Officer
Date of Birth: xx/xx/xx
ODR File No.: 7020/06-07 AS
Dates of Hearing:
November 28, 29 and December 13, 2006
Parties to the Hearing: Mr.
North Penn School District 401 East Hancock Street Lansdale, PA 19446
Mark Fitzgerald, Esquire
Sweet Stevens Tucker & Katz LLP 331 Butler Avenue, P.O. Box 5069 New Britain, PA 18901
Dates Transcript Received: December 11 and December 18, 2006
Record Closed: December 18, 2006
Date of Decision: January 2, 2007
Hearing Officer: Rosemary E. Mullaly
I. Background and Procedural History
The Student (“the Student”) is a xx-year-old resident of North Penn School District (the “District”) classified as a student with emotional disturbance. The Student’s emotional support program is implemented in an out-of-district full-time emotional support program in the [redacted] Elementary School located within the Upper Dublin School District. His parent sought placement of the Student in the District-run after-care program, but the District rejected his request because it felt that, even with reasonable accommodations, the Student could not be maintained in this program based upon the severity of his disability. Thereafter, the Parent requested that the Student be transported to an out-of-district after-school private child-care provider. This request was also denied because the District’s policy for transportation to day care requires that the specific provider designated by a parent be located along the District’s “currently established” bus routes. Proceeding pro se under both the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), the Parent alleges that the District violated the Student’s rights by failing to offer appropriate accommodations for the Student to attend the District-run after-care program and by failing to offer appropriate related service of transportation and appropriate accommodations to its policy of only transporting students to private childcare providers along currently established bus routes.1 The parent seeks placement in the District-run after-care program or, in the alternative, transportation of the Student to an out-of-District private child-care provider.
The District asserts that the hearing officer lacks jurisdiction to address the issue of placement in the District-run after-care program because the Parent has failed to demonstrate that the after-care program is a necessary component of the Student’s IEP, therefore it is solely a discrimination claim over which the hearing officer does not have jurisdiction. In the alternative, the District asserts that it was justified in denying the Student admission to its after-care program based upon the severity of the Student’s disability and its inability to provide accommodations without changing the nature of its program. Finally, the District asserts that it may apply its facially neutral transportation without violating the law because the parent’s request does not have a connection to the student’s program and placement in the emotional support classroom but is instead based upon the parent’s convenience.
B. Procedural History
The Office for Dispute Resolution received the Parent’s hearing request in this matter on October 10, 2006. The parties waived the resolution meeting and evidenced this waiver by executing a joint written statement contained in the record as Hearing Officer Exhibit 2. The three-session hearing took place on November 28, 29 and December 13, 2006. The parties compiled a joint set of hearing exhibits (reference to which shall be designated hereinafter as “Exh.-”). The hearing officer received the final hearing session transcript and the parties’ written closing statements on December 18, 2006 whereupon the record was closed. An brief extension of the timeline for compiling the record in this matter was granted in order to issue a subpoena and obtain the testimony of a nonparty rebuttal witness. A national postal holiday as well as a National Day of Mourning similarly resulted in a brief delay in forwarding the decision via certified mail to the parties.
- Did the District violate the Student’s rights as an eligible student under the IDEA or as a qualified handicapped student under Section 504 of the Rehabilitation Act of 1973 for failure to provide reasonable accommodations for the Student to access its after-care program?
- Whether the District violated the Student’s rights under the IDEA or Section 504 of the Rehabilitation Act when it refused to provide transportation to an out-of-district child-care provider?