Mifflin Sch. Dist. v. SPECIAL ED. APPEALS BD.

• Decision Date: 20 June 2002
• Citation: 800 A.2d 1010
• Parties: MIFFLIN COUNTY SCHOOL DISTRICT, Petitioner, v. SPECIAL EDUCATION DUE PROCESS APPEALS BOARD, Respondent.
• Court: Pennsylvania Commonwealth Court

800 A.2d 1010

MIFFLIN COUNTY SCHOOL DISTRICT, Petitioner, v. SPECIAL EDUCATION DUE PROCESS APPEALS BOARD, Respondent.

Commonwealth Court of Pennsylvania.

Argued April 10, 2002.

Decided June 20, 2002.

Orris C. Knepp, III, Lewistown, for petitioner.

Rebecca L. Ardoline, State College, for petitioner.

Before SMITH-RIBNER, Judge, and LEAVITT, Judge, and FLAHERTY, Senior Judge.

OPINION BY Judge SMITH-RIBNER.

The Mifflin County School District (District) petitions for review of the August 8, 2001 order of the Special Education Due Process Appeals Review Panel (Panel) which concluded that Kaitlyn Fisher (Kaitlyn) had been denied free appropriate public education based on the inadequacy of a 1999 multi-disciplinary evaluation (MDE) conducted by the District.¹ The District questions whether the Panel committed reversible error in considering the appropriateness of the 1999 MDE sua sponte when it had not been raised before the Hearing Officer, in failing to order additional evidence on the issue because a full factual record had not been created below, in ordering the District to employ outside experts to develop a new individualized education program (IEP) and in awarding Kaitlyn's parents (Fishers) 450 hours of compensatory education when they failed to cooperate in releasing all of Kaitlyn's medical records for review by the District's IEP team.² In the fall of 1997 Kaitlyn entered the District as a kindergartener. In September 1998 the Fishers and the District entered into a Section 504/Chapter 15 Service Agreement, which identified Kaitlyn's condition as spinal muscular atrophy, a degenerative neuromuscular condition.³ In February 1999 the Fishers requested and consented to an MDE evaluation to determine if Kaitlyn qualified for special education services. In April 1999 the District's multi-disciplinary team developed a Comprehensive Evaluation Report (CER), concluding that Kaitlyn was eligible for such services, which the Fishers signed. The District then developed an IEP in May 1999 that included consultative physical therapy once a month and consultative occupational therapy without a specified frequency. It sent a Notice of Recommended Assignment (NORA) and the IEP to the Fishers, who refused to sign. Kaitlyn's neurologist and physical therapist recommended an exercise program with a trained professional and occupational therapy and physical therapy, and the District then drafted another IEP/NORA, which the Fishers again refused to sign. Kaitlyn's IEP/NORA for second grade were modified after mediation. The Fishers refused extended school year services the District offered.

In November 2000 the District began to prepare an IEP/NORA for Kaitlyn's third grade year, consisting of weekly physical therapy, consultation with an occupational therapist throughout the fall semester and a teacher's aide to consult with Kaitlyn's physical therapist. The Fishers rejected this IEP/NORA, opting for a pretrial conference or due process hearing, and they filed a complaint with the Bureau of Special Education's Division of Compliance Monitoring and Planning. Additional meetings to revise the IEP/NORA were also unsuccessful. At a February 2001 pretrial conference, the District provided the Fishers with a consent form for a complete copy of Kaitlyn's medical records, which they did not return until April 2, 2001. The District prepared another IEP/NORA, which the Fishers rejected. The Fishers were thereafter granted a due process hearing.

The issues before the Hearing Officer included: (1) whether Kaitlyn was receiving the appropriate physical education; (2) whether she was receiving appropriate occupational therapy, and if so, what should be the frequency and duration; (3) whether she was eligible for more than one physical therapy session per week during the school year; and (4) whether she was eligible for extended school year services beyond the six weeks of therapy offered during the summer. The Hearing Officer required modifications to Kaitlyn's IEP and physical therapy during the summer. He did not rule on the appropriate frequency, nature or duration of the occupational therapy, although he did suggest that the District incorporate more specificity into Kaitlyn's adaptive physical education.⁴ The Hearing Officer did not address compensatory education.

The Panel concluded by a preponderance of the evidence that the physical and occupational therapy the District provided was sufficient to allow Kaitlyn to profit from this service, and it did not order a change in the frequency or duration of the service. Similarly, the Panel concluded that the District's adaptive physical education program and the procedures followed by the regular and adaptive physical education teachers were appropriate and consistent with federal regulations. 34 C.F.R. § 300.307. Because the physical and occupational therapy was sufficient, the Panel denied the Fishers' request for 282 hours of compensatory education based on the inadequacy of this therapy. The Panel concluded that the Hearing Officer erred in ordering physical and occupational therapy as Kaitlyn's extended school year program because it was not required.

As for the 1999 MDE, the Panel considered whether the District appropriately performed it even though the issue had not been raised before the Hearing Officer or in the Fishers' exceptions. Based on requirements of Section 612 of the Individuals with Disabilities Education Act, 20 U.S.C. § 1412, which mandates states to offer a free appropriate public education to students who qualify for special education services, the Panel awarded the Fishers 450 hours of compensatory education, the equivalent of one hour per day for 450 school days. The award was made because Kaitlyn's MDEs, according to the Panel, did not comply with state regulations. The Panel concluded that Kaitlyn was denied appropriate services from February 1999 when the Fishers consented to an MDE through the 2000/01 school year, or 450 school days. It also ordered the District to employ outside experts to conduct a medical and appropriate occupational and physical therapy and assistive technological evaluations. The District was ordered to develop an IEP that was responsive to these evaluations.⁵

The District argues that the Panel overstepped its authority by raising sua sponte the appropriateness of the 1999 MDE as that issue was not developed before the Hearing Officer. Moreover, the District asserts, the Panel was precluded from raising the issue sua sponte because the Fishers did not exhaust all administrative remedies, citing Jackson v. Centennial School Dist., 509 Pa. 101, 501 A.2d 218 (1985), and Colonial School Dist. v. Department of Education, 145 Pa.Cmwlth. 74, 602 A.2d 455 (1992).⁶ The District also argues that the 1999 MDE was not so necessarily entwined with the four issues litigated before the Hearing Officer so as to permit the Panel to consider the issue sua sponte. It maintains that this issue is one of first impression, directing the Court's attention to a federal district court memorandum opinion, which the Court may not consider.

The Fishers disagree that this issue is one of first impression, directing the Court's attention to Millersburg Area School Dist. v. Lynda T., 707 A.2d 572 (Pa.Cmwlth.1998), and to Stroudsburg Area School Dist. v. Jared M., 712 A.2d 807 (Pa.Cmwlth.1998). In Millersburg the district challenged a panel's sua sponte consideration of an emotionally disturbed child's past IEPs and past educational services. The Court concluded that these issues were raised at the hearings and in exceptions to the hearing officer's decision, and it noted that the district provided voluminous exhibits, including past IEPs and testimony regarding past...