The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
Alex K. is a minor who currently attends public school in the
Wissahickon School District ("District") and receives special education
and related services under the Individuals with Disabilities Education
Act ("IDEA"). 20 U.S.C. § 1400 et seq. The plaintiffs, Alex K. and his
parents, allege that the District failed to identify and locate Alex, and
failed to provide him with a Free Appropriate Public Education ("FAPE")
from the 1996-1997 school year until May 2002. Alex attended private
school during this period, and the plaintiffs seek compensatory education
and tuition reimbursement for that period.
Both parties have filed motions for summary judgment. The defendant has
filed a motion for disposition on the administrative record. The Court
will grant the defendant's motion for summary judgment, deny the
plaintiff's motion for
summary judgment, and grant the defendant's motion for disposition
on the administrative record.
This case raises questions about the interpretation of the "child find"
provisions of the IDEA and the Pennsylvania Code that govern a school
district's obligation to find and evaluate disabled children. Alex K.
initially attended private school at Germantown Academy for kindergarten
and first grade. During the 1996-1997 school year while Alex was in the
first grade, Germantown Academy informed his parents that he was having
learning problems. Alex's parents had him tested. They visited various
schools, looking for alternative placements for Alex. They visited Shady
Grove Elementary School, met with the principal, and toured the
facility. They ultimately decided to send Alex to the private Woodlynde
School and enrolled him there in 1997. In 2001, Alex's parents requested
a due process hearing, seeking tuition reimbursement and compensatory
education. Alex enrolled in public school in the Wissahickon District in
the Fall of 2002.
The plaintiffs do not complain about Alex's treatment at public school
in the Wissahickon District. The crux of their complaint is that the
District should have conducted an evaluation of Alex during the period
1996-2001 and offered him an appropriate Individual Educational Plan
I. Background and Procedural History
A Due Process Hearing was held before Dr. Gregory J. Smith, Hearing
Officer, on September 23 and October 22, 2002. The plaintiffs sought
compensatory education and tuition reimbursement for the 1997-1998
through 2001-2002 school years when Alex K. attended the private
Woodlynde School. All of the parties put on witnesses at the hearing. The
testimony related to two topics: general child find efforts of the
District; and the District's efforts with respect to Alex.
1. General Child Find Evidence
Denise Fagan, the Director of Special Education in the District from
1999, testified about how the District notified the public about its
special education services. She stated that in 1997, pamphlets developed
by the special education department were available and visible in the
front office of every school in the District, including Shady Grove
Elementary School. The pamphlets explained how to access special
education and how to have a child identified for special education
services, discussed what special education programs were offered within
the school district, provided information on the confidentiality of
student records, and indicated that a parent could request an evaluation
for a student.
The District, according to Denise Fagan, also provided information on
its special education services on its website from at least October 1997.
Information on special education services was available in the school
district offices and was advertised on the cable TV network. Child find
notifications were placed in local newspapers from at least 1996. From
1998, information on the District's special education programs was sent
to private schools in the district, which stated that parents could
request an evaluation of their child for these services via a written
request to the District.
Denise Fagan also testified that the Montgomery County Intermediate
Unit cannot provide information on non-public students receiving their
services without a parental release. The District does not receive
information from the Department of Transportation regarding which
students are bussed to non-public schools.
The plaintiffs asked to call Thomas Worrilow and Inge Webster to
testify about finding children. Prior to the hearing, both parties'
attorneys held a conference call with the Hearing Officer, in which the
Hearing Officer listened to the offer of proof for both potential
witnesses.*fn1 The Hearing Officer did not
allow the two witnesses to testify, stating that Mr. Worrilow would
discuss methods that could be used in finding individuals in general and
that Dr. Webster would discuss methods that could be used in child find
activities. The Hearing Officer found that although the witnesses might
make helpful suggestions as to what school districts> could do to identify
individuals, their testimony would not be probative in determining what
the school district must do under the law to comply with child find
2. Evidence Relating to the Plaintiffs
Regarding Alex K., Denise Fagan testified that she never received a
letter from Alex's parents requesting an evaluation of Alex before
leaving her position to become an elementary school principal in August,
Frank Musitano, Director of Special Education in 2001, testified that
he received a letter dated September 10, 2001 from Alex K.'s mother
("Mrs. K.") requesting an evaluation. The District issued a Permission to
Evaluate on September 14, 2001. The District received the permission form
from Mrs. K. on December 17, 2001. The District issued an evaluation
Alex K. on April 25, 2002. An Individual Education Plan ("IEP") was
then issued for Alex.
Mrs. K. testified at the hearing. She stated that she and her husband
visited a number of schools during the 1996-1997 school year looking for
a proper placement for Alex. They met with Gary Bundy, the principal of
Shady Grove Elementary School, at some point during the 1996-1997 school
year. She told Mr. Bundy that she and her husband were in the process of
having Alex tested and were just beginning to understand that Alex had
learning disabilities. A woman took them on a tour of the school and
showed them a special education classroom. Mrs. K. did not recall sharing
independent tests or evaluations of Alex with the District. She did not
ask Mr. Bundy to evaluate Alex. She was "pretty certain" that he did not
tell her to put a request for an evaluation in writing. She did not
follow up with the school. She only followed up with the schools that
impressed her. She also testified that she sent a letter to the District
in February of 2001 requesting an evaluation for Alex. No signed copy of
this letter was produced.
Gary Bundy, the principal of Shady Grove in the fall of 1996, testified
about his meeting with Mrs. K. He recalled meeting with Mrs. K. in 1996.
She told him that she believed that her son had a learning disability. He
told her that if she would like the Wissahickon School District to
evaluate Alex, she
should put the request in writing. He also stated that there was a
special education pamphlet on display in two visible places in the outer
office and the principal's office at the time of the meeting. He did
not recall whether he handed the pamphlet to the K.'s.
Mr. John Rogers testified for the plaintiffs. He served as the head of
Woodlynde School, when Alex K. attended Woodlynde from 1997 until 2001.
His testimony described Alex K.'s education and performance at the
Finally, the Hearing Officer received written briefs and heard oral
arguments from the parties regarding whether Alex K.'s claims for tuition
reimbursement and compensatory ...