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J.E., et al v. Boyertown Area School District

February 4, 2011

J.E., ET AL.,
PLAINTIFFS,
v.
BOYERTOWN AREA SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

TABLE OF CONTENTS

I. INTRODUCTION...............................................3

II. BACKGROUND.................................................4

III. DISCUSSION.................................................6

A. The IDEIA.............................................6

B. Providing an Appropriate IEP..........................7

C. Tuition Reimbursement.................................9

D. Standard of Review...................................10

E. Hearing Officer Culleton's Decision..................11

1. The Hearing Officer's Factual Findings........................................11

a) Program Planning and

Litigation History.........................11

b) The July 7, 2009 IEP for the 2009-2010 School Year......................17

2. The Hearing Officer's Legal

Conclusions.....................................21

a) Appropriateness of the Proposed Placement..................................21

b) Pendency...................................22 c) Parents' Testimony and Criticism..............................22

d) Experts' Testimony.........................23 e) Timeliness of the

District's Offer...........................24

f) Procedural Deficiencies....................24

F. Plaintiffs' Motion for Judgment on the Record........................................25

1. The Hearing Officer Erred in Failing to Consider the Issue of Whether the Proposal to Alter J.E.'s Placement From a Private to a Public School Setting is Appropriate..........................26

2. The IEP Proffering to Place J.E. in the Autistic Support Program Does Not Provide Fair and Appropriate Public Education.......................................26

3. The Hearing Officer's Credibility Findings Pertaining to J.E.'s Mother are Unsupported.................................28

4. The Hearing Officer's Conclusion that the Offer of an IEP was Timely and Complete is Erroneous...........................29

5. The IEP Did Not Adequately Provide Transitional Services...........................30

6. The IEP is not Appropriate Because of the Exposure to Bullying.....................31

7. J.E. is Entitled to Continuation of the Hill Top Placement or Alternatively to Tuition Reimbursement........................32

8. The Hill Top School is an Appropriate Placement for J.E...............................33

G. Defendant's Motion for Judgment on the Record........................................33

IV. CONCLUSION................................................35

I. INTRODUCTION

Plaintiffs J.E. and the parents of J.E. (J.E. and A.E., "the Parents") (collectively "Plaintiffs"), initiated this action against the Boyertown Area School District ("Defendant" or "District"), seeking the reversal of a Pennsylvania Special Education Hearing Officer's decision that the 2009-2010 Individualized Education Plan ("IEP") that the District proposed was appropriate and that the District would no longer have to reimburse Plaintiffs for private school placement. Plaintiffs argue that this decision denies J.E. his right to a free appropriate public education under the Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. §§ 1412(a), 1414(d) and the Rehabilitation Act of 1973, 29 U.S.C. § 504.

Before the Court are cross motions for judgment on the record. The Court will first discuss the relevant law and applicable standard of review. Then, the Court will provide the Hearing Officer's findings of fact and conclusions of law. Finally, the Court will analyze the merits of each parties' motion for judgment on the record separately.

For the reasons set forth below, the Court will grant the District's motion and deny Plaintiffs' cross motion; therefore, affirming the Hearing Officer's decision.

II. BACKGROUND

On June 21, 2010, Plaintiffs initiated this action against the Boyertown Area School District.*fn1 Plaintiffs seek the reversal of Pennsylvania Special Hearing Officer William Culleton, Esq.'s ("Culleton" or "Hearing Officer") decision that the District's IEP for J.E. for the 2009-2010 school year was an appropriate placement. Plaintiffs claim that the District's proposed IEP fails to provide J.E. with an appropriate placement. Plaintiffs argue that instead of placing J.E. in the District's Autism Support class ("AS class") at the public Boyertown Area High School ("BAHS"), the appropriate placement for J.E. is at the private Hill Top Preparatory School ("Hill Top") and that J.E.'s parents should be reimbursed for tuition and transportation costs for J.E.'s attendance at the Hill Top.

Plaintiffs are also seeking attorney's fees and costs.

When the District offered this IEP to J.E., J.E.'s parents disagreed with it and filed for a due process hearing. Hearing Officer Culleton resolved the dispute in favor of the District. In their Complaint, Plaintiffs attack the Hearing Officer's decision on several grounds: (1) it is based on a non existent document, (2) it ignores the evidence that the District failed to offer a timely IEP, (3) it was not supported by a preponderance of the evidence, (4) it applied the wrong legal standard, (5) it made an erroneous credibility determination finding that Mrs. E's "startled reaction" to a loud sound in the room was evidence that she had a "heightened sensitivity" to the atmosphere of a large school. (Plf.s' Comp. at ¶ 30.) On August 30, 2010, Defendant filed its answer, denying Plaintiffs' allegations and asserting numerous defenses. (See Def.'s Answer.)

On September 2, 2010, Plaintiffs filed a Motion for Preliminary Injunction, arguing that Hill Top was J.E.'s pendent placement and that under the "stay put" provision of the IDEIA the District is responsible for continuing to pay for J.E.'s tuition at and transportation to Hill Top. (See Plf.s' Mot. for Prelim. Inj.) On September 16, 2010, the District responded that it should not be responsible for these costs. (See Def.'s Resp. to Mot. for Prelim. Inj.) On December 12, 2010, following a hearing, the Court ...


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