Nicholas Malfitano Apr. 24, 2015, 9:12am


HARRISBURG – The Pocono Mountain School District is seeking to overturn a previous ruling made by a State Special Education Hearing Officer binding it to compensate tuition for a minor student’s private and parochial education after leaving the school district.

The district filed litigation in federal court on Monday against T.D., the minor student listed in the lawsuit who was enrolled in the Pocono Mountain School District’s Tobyhanna Elementary Center during the time period of fall 2008 to fall 2013, the suit says.

During that time, the student was enrolled as a regular education student.

On Jan. 25, 2012, the district described that T.D.'s parent/legal guardian (listed in the lawsuit as S.L.D.) reported an eight year-old girl had touched T.D. inappropriately – an allegation the district says in its suit that it investigated and determined to be unfounded.

Further, S.L.D. informed the district in May 2012 that T.D. was diagnosed with “hysterical amblyopia," or an ocular condition resulting in vision loss. The school district maintains it tested T.D. for vision issues and found no problems.

Due to S.L.D.’s concerns, the district alleges it evaluated T.D. on two occasions over the following year, finding both times that he did not qualify for special education services and instead recommending continued regular education.

The district did note it would consider T.D. under Section 504 of the Rehabilitation Act of 1973, which would provide specialized services for applicable students through federal funding, and invited S.L.D. to a meeting for that purpose in June 2013.

However, the district alleges S.L.D. cancelled the meeting and instead withdrew T.D. from the district and placed him in Notre Dame Academy, a private and parochial school, in the fall of 2013.

That same fall, S.L.D. retained the services of Dr. Steven Kachmar, a licensed and independent school psychologist, to review T.D’s records and speak with personnel at Notre Dame Academy in order to ascertain whether T.D. was eligible for special education services under the Individuals with Disabilities Education Act (IDEA).

In Dr. Kachmar’s report, he noted T.D. demonstrated “symptomology consistent with an educational diagnosis of emotional disturbance," but recommended a further formal evaluation be conducted by the Pocono Mountain School District.

The district conducted both that evaluation and the previous evaluation of T.D. under Section 504, which was set to begin prior to S.L.D. withdrawing him from the district. Though the district found T.D. had been diagnosed with “conversion and anxiety disorders," the district’s conclusion was that T.D.’s conditions did not impair his learning ability, and he was therefore not eligible for special education services.

Another independent and licensed school psychologist, Dr. Richard Shillabeer, evaluated T.D. and found him ineligible for special education, but that he did qualify for other services under Section 504. This finding was made in June, after T.D. had already spent an entire school year enrolled at Notre Dame Academy.

Notre Dame Academy, per its private and parochial designation, does not offer Section 504 services or Individualized Education Plans (IEPs).

The district also maintains in its suit that T.D. achieved “exemplary grades” both before and after the alleged January 2012 incident of inappropriate contact with the eight year-old classmate, and that all of his teachers uniformly reported T.D. as a “happy, typical student.

After completing one school year with Notre Dame Academy, S.L.D. filed a request on June 3 with the state Department of Education’s Bureau of Special Education for a hearing and due process, claiming her son T.D. was failed to be identified as a special education student and denied a “free, appropriate public education” (FAPE) under IDEA by the Pocono Mountain School District.

The district receives federal funds to implement such education under the auspices of IDEA and the Americans with Disabilities Act of 1990 (ADA).

S.L.D. further requested “tuition reimbursement for the private parochial school in which the student was enrolled beginning in the 2013-2014 school year and compensatory education for the period beginning September 19, 2011 and monetary damages," because of the alleged sexual assault of T.D. by the eight year-old student in January 2012.

On June 18, the district learned that T.D. would in fact be eligible for services under Section 504 of the Rehabilitation Act of 1973, again for which the district receives federal funds to implement.

On Jan. 20, State Special Education Hearing Officer Jake McElligott, who oversaw S.L.D.’s initial hearing request, issued a decision explaining T.D. was not eligible as a special education student under IDEA, but rather, was a protected handicapped student as of May 14, 2013.

McElligott further found T.D. was denied FAPE from May 14, 2013, to June 19, 2013, a period of 26 school days wherein T.D. attended school for 21 of those days.

McElligott ordered the award of one hour of compensatory education for each of those 26 days, as well as full reimbursement to S.L.D. for T.D.’s tuition at Notre Dame Academy for both the 2013-2014 and 2014-2015 school years.

In his decision, McElligott added the district “discriminated against the student (T.D.) through multiple instances of deliberately indifferent conduct regarding the student’s status as a student with a disability.”

In its lawsuit, the district maintains it never failed to act in the best educational interests of T.D., nor ever made any attempt to deny him appropriate educational services. Rather, the district alleges McEligott made his decision based on T.D.’s presumed eligibility through IDEA rather than through Section 504, a point which the district vigorously contends.

The Pocono Mountain School District is requesting the Middle District Court of Pennsylvania completely overturn the McElligott Decision as to Section 504 due to it allegedly being “in error of fact and law," reverse the decision’s finding of T.D.’s eligibility to FAPE as to May 14, 2013, reverse the decision’s award of tuition reimbursement to S.L.D., reverse the decision’s award of compensatory education to T.D., overturn the decision’s finding of deliberate indifference and apply a de novo standard of review “recognizing the greater expertise of educational professionals in this matter.”

The plaintiff is represented by John E. Freund III and Glenna M. Hazeltine of King, Spry, Herman, Freund & Faul, LLC of Bethlehem.

The defendants are represented by Heather Hulse, Esq. of McAndrews Law Office in Berwyn.

United States District Court for the Middle District of Pennsylvania case 3:15-cv- 00764

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