WP vs. Upper Darby School District

PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER

DECISION

Child’s Name: W. P.

Date of Birth: [redacted]

CLOSED HEARING

ODR File No. 18152-16-17 AS

Parties to the Hearing:

Parents Parent[s]

Local Education Agency Upper Darby School District 601 N. Lansdowne Avenue Drexel Hill, PA 19026

Representative:

Parent Attorney
Vanita R. Kalra, Esquire
David J. Berney, Esquire
Law Offices of David J. Berney 1628 JFK Boulevard, Suite 1000 Philadelphia, PA 19103

LEA Attorney
Scott C. Gottel, Esquire Holsten & Associates One Olive Street Media, PA 19063

Dates of Hearing: November 22, 2016; December 22, 2016; January 11, 2017; January 13, 2017

Date of Decision: February 20, 2017

Hearing Officer: Cathy A. Skidmore, M.Ed., J.D.

INTRODUCTION AND PROCEDURAL HISTORY

The student (hereafter Student)1 is a late teenaged, regular education student in the Upper Darby School District (District) who is currently repeating ninth grade. Student previously was enrolled in the District in the fall of 2011 for seventh grade and was withdrawn at the end of that school year. Student returned to the District at the start of the 2014-15 school year having failed ninth grade in the other school district. Following an Independent Educational Evaluation, Student’s Parent filed a Due Process Complaint against the District at the start of the 2016-17 school year as Student was set to begin ninth grade for the fourth time. The Parent raised claims under the Individuals with Disabilities Education Act (IDEA),2 Section 504 of the Rehabilitation Act of 19733 (Section 504), and the Americans with Disabilities Act (ADA),4 as well as the federal and state regulations implementing those statutes.

The case proceeded to a due process hearing convening over four sessions.5 The initial hearing session was delayed at the request of the Parent; importantly, at the time, the parties had reached an interim resolution for the 2016-17 school year program that included a District evaluation of Student.6 That agreement did not ultimately result in a resolution on any of the issues presented in the Complaint.7 At the hearing, the Parent asserted that the District failed in its obligations to evaluate and identify Student as a child with a disability who was eligible for special education, and that it further denied Student a free, appropriate public education (FAPE) from the beginning of 2014-15 school year and continuing through the present. She sought compensatory education and reimbursement for certain expenses, as well as directives to the District with respect to prospective programming. The District countered that Student is not eligible for special education and that Student’s lack of success is attributable to a myriad of other factors, including Student’s refusal to attend school and failure to complete course work. The District sought dismissal of all of the Parent’s claims and denial of any relief.

For the reasons set forth below, the Parent’s claims will be granted in part and remedies will be awarded.

ISSUES

  1. Whether the District failed in its Child Find obligations to identify Student as a child with a disability and eligible for services under the IDEA and/or Section 504;
  2. If the District did fail in those Child Find obligations, should the District be directed to develop and implement a special education program for Student;
  3. If the District did fail in those Child Find obligations and thereby denied Student a free, appropriate public education, should Student be awarded compensatory education and, if so, in what form and amount;
  4. Should the Parent be reimbursed for the Independent Educational Evaluation she obtained in the summer of 2016?8
W-P-Upper-Darby-ODRNo-18152-16-17-AS

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