Student vs. Upper Darby School District

PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER

DECISION

DUE PROCESS HEARING

Name of Child: Student

ODR #10193/08-09 LS

Date of Birth: Xx/xx/xx

Dates of Hearing: July 1, 2009 August 11, 2009 September 1, 2009

CLOSED HEARING

Parties to the Hearing: Parents

School District
Upper Darby School District 4611 Bond Avenue
Drexel Hill, PA 19026

Representative:

Pro Se

School District Attorney Scott Gottel, Esq Holsten & Associates One Olive Street

Media, PA 19063

Date Record Closed: September 14, 2009

Date of Decision: September 30, 2009

Hearing Officer: Deborah G. DeLauro, Esq.

Background

Student (hereinafter “Student”) is a pre-teen aged seventh grade student who is a resident of the Upper Darby School District (hereinafter “District”). Student qualifies for special education services under the category of Autism1. Student moved into the District in February 2005 and was initially placed at Parent’s request in the regular education program at [redacted] Elementary School (hereinafter Elementary School One). After a relatively short period of time, Parent agreed with the recommendation to place Student in the Autistic Support Program in the [redacted] Elementary School (hereinafter Elementary School Two). Towards the end of the 2004-2005 school year, however, Parent requested a due process hearing complaining that the District failed to provide Student with a Free Appropriate Public Education (hereinafter “FAPE”).

After an administrative appeals panel overturned the hearing officer’s decision2, and determined that Student should be educated in the specialized autistic support program at Elementary School Two, the Parent then filed an appeal with the United States District Court for the Eastern District (hereinafter “USDCED”) where the Parties entered into a Consent Decree.3 [SD-16; N.T. pp.] Pursuant to the Consent Decree, the USDCED appointed a guardian ad litem4 and maintained jurisdiction through the end of the 2007- 2008 school year.

Marcie Romberger, Esquire, acting as the guardian ad litem, approved the Individual Education Plan (hereinafter “IEP”) of March 26, 2008 which was amended on of June 9, 2008. [SD-1; N.T. pp. 104, 294-296; SD-16] Thus, the March 26, 2008 IEP amended on June 9, 2008 was accepted as providing FAPE by Student’s guardian ad litem.

However, in August 2008, the Parent requested an IEP team meeting prior to the start of the school year in order to change the agreed upon IEP. Nonetheless, Parent was persuaded to allow the District the opportunity to implement the IEP which had just been approved by the guardian ad litem. [P-39; SD-2] Parent made no additional complaints during the 2008-2009 school year, until she requested a re-evaluation and then contested its validity in the present case.

On June 16, 2009, Parent filed the instant Due Process Complaint alleging that the proposed extended school year (hereinafter “ESY”) program was inappropriate and requesting that her child be placed in the Lindamood-Bell Remedial Reading program

(hereinafter “Lindamood-Bell”) instead. Included in Parent’s complaint were additional allegations regarding the appropriateness of the May 11, 2009 RR, the June 4, 2009 IEP and the corresponding NOREP. [HO-1]5

On June 22, 2009, the District filed an Answer to Parent’s complaint which included a sufficiency challenge with regard to the additional allegations. [HO-2] On June 29, 2009, the Parent then submitted additional background information amending her Complaint. [HO-3] In light of Parent’s pro se status, this hearing officer denied the District’s partial motion to dismiss the additional allegations and accepted Parent’s amended Complaint. [N.T. pp. 7-8]

On July 1, 2009, an expedited hearing was held in order to address the ESY issue. However, at the start of the hearing, the Parent requested that the hearing be “un- expedited” in light of her belief that the ESY issue could not be resolved independently without first determining which IEP was in place at the time the Complaint was filed, and second, without addressing the ancillary issues related to the appropriateness of the May 11, 2009 re-evaluation report (hereinafter “RR”), and the June 4, 2009 IEP and the corresponding Notice of Recommended Placement (hereinafter “NOREP”). [N.T. p. 6]

Therefore, the July 1, 2009 hearing was treated as the first hearing session focused on the appropriateness of the District’s proffered ESY program and the Parent’s preferred Lindamood-Bell program. [N.T. p. 6-7]

Issues

  1. Whether the ESY program recommended by the District was appropriate?
  2. Whether the May 11, 2009 re-evaluation was appropriate?
  3. Whether the IEP dated June 4, 2009 was appropriate?
  4. Whether the June 4, 2009 NOREP recommending placement in the supplemental learning support program was appropriate?
Student-Upper-Darby-ODRNo-10193-08-09-LS

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