SPECIAL EDUCATION HEARING OFFICER
DUE PROCESS HEARING
Name of Child: Student
ODR #9745/08-09 LS
Date of Birth: Xx/xx/xx
Dates of Hearing: May 13, 2009 July 14/ 2009 July 15, 2009 August 5, 2009
Parties to the Hearing: Parents
School District Radnor Township
135 S. Wayne Avenue Wayne, PA 1908-4117
Catherine Merino Reisman, Esq. Reisman Carolla LLP
20 East Redman Avenue Haddonfield NJ 08033-2315
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: September 1, 2009
Date of Decision: September 15, 2009
Hearing Officer: Deborah G. DeLauro, Esq.
Student is a teen-aged eighth grade student who is a resident of the Radnor Township School District. Student is a child who qualifies for special education services under the category of mental retardation with a secondary category of speech and language impairment. Student attended [redacted] Elementary School, a District School, until the middle of the 2004-2005 school year. At Parents’ request, when Student was in third grade, Student transferred to a private Diocesan school for students with learning and physical disabilities (Private School). The IEP team agreed and issued a NOREP supporting the change of placement. The District paid Student’s tuition but as a private school, Private School developed its’ own Individual Service Program and stated that it would not implement the District’s IEP.
In addition to functional academics and a life skills program at Private School, Student received speech and language and occupational therapy services from the Montgomery County Intermediate Unit, and upon further request from Student’s Parents, the District provided additional speech and language therapy three times a week and one- to-one academic tutoring twice a week after school. Student remained at Private School until the 2008-2009 school year. Student was re-evaluated by the District in the Summer of 2008 and an IEP team meeting was convened on August 28, 2008. The District proposed an IEP placing Student at [redacted] Middle School and, apart from a request of one-to-one services in language arts, math and speech,1 the present levels of performance, the goals and the specially designed instruction were all agreed upon.
However, a factual dispute arose over whether the District agreed to provide the one-to-one services requested by the Parents at the IEP meeting. The Parents left the meeting believing that the District agreed to provide one-to-one instruction in math, language arts and speech. The District representatives apparently left the meeting with a less than clear understanding of what had been agreed to. After two months of attempting to arrange for services and adding 1:1 instruction and services where possible, the District issued a NOREP on November 3, 2009 along with a Settlement Agreement which included the one-to-one services in dispute. The Parents rejected the NOREP and an IEP team meeting was scheduled for November 7, 2009 in order to review a new draft of the IEP. The Parents continued to disagree because the services were not listed on the IEP. Following on the IEP meeting, the District issued a NOREP along with a Compensatory Education which included, inter alia, the additional services in dispute. Fearing that they would be waiving pendancy rights for the services, Parents rejected the NOREP and Compensatory Education Agreement.
On February 23, 2009, the Parents filed a Due Process Complaint raising FAPE issues that dated back to the January 2005 through February 23, 2009. The Parents assert that the District denied Student FAPE by 1) failing to develop or implement an IEP from January 2005 through June 2008; 2) failing to develop an appropriate IEP which was to have been based on an agreement reached at the August 28, 2008 IEP meeting; 3) failing to timely and comprehensively re-evaluate Student; 4) failing to have an appropriate IEP at the start of the 2008-2009 school year; 5) failing to offer an appropriate Extended School Year (hereinafter “ESY”) program at the February 20, 2009 IEP meeting; and 6) violating IDEA, §504 and the ADA when it offered related services in lieu of compensatory education for allegedly inappropriate services for the past two years.
After a preliminary ruling on the statute of limitations issue2, this hearing officer dedicated the first hearing session to the knew or should have known date and the issue of exceptions to the two-year limitations period. Finding that the KOSHK date was May 15, 2005, this hearing officer ruled that Parents’ claims were barred from May 19, 2005 to May 19, 2007 and further finding that no exception(s) existed, the scope of the hearing was limited to the period from May 19, 2007 to February 23, 2009. [N.T. 194]
- Whether the August 28, 2008 IEP was appropriate?
- Whether the Student is entitled to compensatory education from May 19, 2007 to February 23, 2009?
- Whether the Parents are entitled to tuition reimbursement for the 2009 ESY? 3
- Whether the District is obligated to reimburse Parents for IEEs they obtained?4