Pennsylvania
Special Education Hearing Officer
DECISION
Child’s Name: TE
Date of Birth: xx/xx/xx
Dates of Hearing:
August 12, 2008, September 15, 2008
CLOSED HEARING
ODR #8943/07-08 KE
Parties to the Hearing: Mr. and Ms.
Pottsville Area School District 1501 West Laurel Boulevard Pottsville, PA 17901-1498
Representative:
Phillip A. Drumheiser, Esquire P.O. Box 890
Carlisle, PA 17013
Jeffrey F. Champagne, Esquire McNees, Wallace & Nurick LLP 100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Date Record Closed: September 29, 2008
Date of Decision: October 6, 2008
Hearing Officer: William F. Culleton, Jr., Esquire
INTRODUCTION AND PROCEDURAL HISTORY
Student is a teen aged resident of the Pottsville Area School District (District), and Student is not currently identified as a child with a disability for special education purposes. (1NT 10, 2NT 12-13.)1 The Student is currently not enrolled in the District, but until June 2008 had been enrolled in an alternative educational program provided by the [redacted] Intermediate Unit, known as [redacted]. (2NT 20-23; S-13, 14.) The Student was at that time assigned to the sixth grade level, which is below the appropriate grade for Student’s age. (P-2, S-11 p. 10, 12.) Student has a history of being diagnosed with attention deficit hyperactivity disorder. (P-7 p. 1.)
Mr. and Ms. (Parents) requested an evaluation in November 2007, (P- 1), and the District completed the evaluation by January 18, 2008, (P-7).
The Parents next requested an independent educational evaluation and conveyed this request on or about January 24, 2008. (P-10.) By letter dated January 27, 2008, the Parents requested due process, asserting that the District failed to identify the Student as a child with a disability from kindergarten year until the date of filing for due process, that the District’s evaluation of January 2008 was inappropriate, and that the program and placement that the District offered to the Student was inadequate. (P-13.) They sought an order for an Independent Educational Evaluation, a decision that the Student is eligible for special education, and compensatory education. (2NT 4-6; P-13.)
The parties agreed and the hearing officer directed that the matter be bifurcated and that the hearing officer first decide the Parents’ request for an independent educational evaluation. (1NT 25-26.) In a decision dated May 24, 2008, (HO-1), the hearing officer ordered an independent educational evaluation at public expense, (2NT 6-7), and this decision was affirmed by the Appeals Panel. In re Educational Assignment of E.B., Spec. Educ. Op. 1895 (July 17, 2008). The findings and conclusions of law set forth in the May 24, 2008 decision are incorporated herein in their entirety, (HO-1), and they will not be repeated in this decision.
During the reconvened hearing (between August 12, 2008 and September 15, 2008), the District requested a ruling on the scope of the hearing as affected by the IDEA limitations period and any applicable limitations of section 504 causes of action. (HO-2.) In an email message, the hearing officer ruled that the relevant period of the matter would begin two years prior to the filing of the Complaint, or January 27, 2006. (2NT 6- 12, 242-245; HO-3.)
The hearing was reconvened on August 12, 2008, and September 15, 2008, to decide the remaining issues. On the last day of the hearings, the District moved for admission of three documents to which the Parents objected on grounds of a lack of five day notice as required by law. Exercising his discretion, the hearing officer held the record open so that the Parents could request an opportunity to cross examine after reviewing the documents for five days. (2NT 329-335.) On September 21, 2008, Parents moved for admission of a two page report by their expert, responding to the District’s documents. The record closed upon receipt of the District’s response, on September 29, 2005, objecting to admission of the proffered report. The hearing officer declined to admit the proffered report, and limited the scope of admission of S-20 through S-22 to setting forth the basis of the District expert’s testimony. (HO- 4.)
ISSUES
- Is the Student eligible for special education and related services as a child with a disability under either IDEA or section 504 of the Vocational Rehabilitation Act of 1973?
- Did the District fail to perform its Child Find obligation under IDEA or section 504 of the Vocational Rehabilitation Act of 1973 by failing to identify the Student as eligible for special education and related services during the relevant time period, from January 27, 2006 to August 12, 2008?
- Did the District implement discipline without obtaining a manifestation determination in violation of the IDEA?