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ALEX. v. WISSAHICKON SCHOOL DISTRICT

February 12, 2004.

ALEX K., et al., Plaintiffs
v.
WISSAHICKON SCHOOL DISTRICT Defendant



The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge

MEMORANDUM AND ORDER

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 Page 2 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 ("IEP"). Page 3

 I. Background and Procedural History

  A. Due Process Hearing

  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. Page 4

  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 Page 5 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 requirements.

  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, 2001.

  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 report for Page 6 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 Page 7 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 Woodlynde School.

  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 ...


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