THE SPECIAL EDUCATION DUE PROCESS APPEALS REVIEW PANEL COMMONWEALTH OF PENNSYLVANIA

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1 This is a redacted version of the original appeals panel decision. Select details may have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. THE SPECIAL EDUCATION DUE PROCESS APPEALS REVIEW PANEL COMMONWEALTH OF PENNSYLVANIA IN RE THE EDUCATIONAL ASSIGNMENT OF : SPECIAL EDUCATION J.C, A STUDENT IN THE : OPINION PENN MANOR SCHOOL DISTRICT : NO BEFORE APPEALS PANEL OFFICERS NEVANT, ROGAN & ZIRKEL OPINION BY ZIRKEL, APPELLATE OFFICER BACKGROUND The Student, who is eligible as gifted under Chapter 16, resides with his Parents in the Penn Manor School District (hereinafter referred to as the District ). During the school year, when the Student was in grade 3, his GIEP provided for one-year acceleration (i.e., grade 4 curriculum) in math. 1 The 6/7/06 proposed GIEP for (grade 4) provided an annual goal for math keyed to the 80% proficiency level for the grade 5 curriculum and the 85% proficiency level for the grade 6 curriculum. 2 His grades for the last three quarters in math were A, A+, and A. 3 Yet, since he had not taken the final grade 5 math pre-testing, the District members of the team had not determined whether and when to accelerate the Student to grade 6 math. 4 1 Noted Transcript ( NT ) at and Parents exhibit ( P )-6. 3 P See, e.g., NT at 28 and

2 - 2 - On 6/12/06, the Parents filed for a due process hearing, challenging the math goal s proficiency level for the grade 5 curriculum. 5 On 8/1/06, after conducting a hearing on 7/12/06, 6 the hearing officer issued his decision with the following orders: Student s GIEP shall include a goal that Student should be taught to 80% proficiency in the 5 th grade math curriculum; and Student s GIEP shall include a goal that Student shall be taught to 80% proficiency in the 6 th grade math curriculum; and Student s GIEP shall provide that Student shall be placed in the 6 th grade math class at the beginning of the school year. 7 On 8/24/06, the Student s score on the final grade 5 math assessment was 71.6%, with math problems being a weak area. 8 On 9/20/06, the resulting GIEP provided an annual goal for the Student to be able to demonstrate knowledge of the grade 6 math curriculum with a minimum of 80% proficiency. 9 Although the GIEP team specified this proficiency level to comply with the 5 P-12. This claim established the issue in the case. See, e.g., P-5, at P-5. 7 D-3, at 9; P-4, at 8. In his discussion, after establishing a foundation in factual findings, he specifically concluded that [a]s a GIEP goal, 80% mastery of the 5 th grade math curriculum is appropriate, as is 80% mastery of the 6 th grade curriculum. Id. at 8. 8 See, e.g., D-4/P-3; NT at 94 and 98. Since then, his gifted education teacher has been working with him on the grade 5 math curriculum, reaching an 83% level by mid-october except for word problems, which still required more instruction. NT at 95. At that time, his grades in grade 6 math were 88%, including homework as a major component and the content being largely review. Id. at 61 and P-2/District exhibit ( D )-1. This level equates in the District s grading system to a B-. NT at 29.

3 - 3 - hearing officer s order, 10 the District s members of the team supported its appropriateness based on the individual circumstances of the Student. 11 On or about 9/21/06, the Parents filed for a new due process hearing, challenging said 80% proficiency level. On 11/4/06, after conducting a hearing on 10/20/06, the hearing officer issued his decision, concluding that he had no authority to overturn the previous hearing officer s order. 12 The Parents timely filed exceptions. DISCUSSION Although the evidence in the record preponderantly points in the same direction, 13 we agree with the hearing officer that the Parents claim must be denied on jurisdictional grounds. 14 The gist of the Parents exceptions, like the Parent s arguments at the hearing, 15 is the contention that the prior hearing officer s order specific to the 10 See, e.g., NT at 72-73; D See, e.g., NT at (Student s grade 4 math teacher), (his grade 6 math teacher), and 85 (his gifted education teacher). 12 Hearing Officer Decision, at 13. He based his decision on two jurisdictional grounds. First, citing the doctrine of res judicata, he reasoned that although the grade 6 proficiency level was not the main issue of the previous hearing, the evidence and arguments sufficiently supported the first hearing officer addressing it. Id. at Second, citing the applicable procedure for filing an appeal of a hearing officer decision, he reasoned that the Parents failure to file exceptions within the prescribed period constituted a waiver of any objections to the prior hearing officer s order. Id. at See supra note 11 and accompanying text. With regard to the evidence subsequent to the latest GIEP meeting, we remind the parties of the applicable snapshot standard. See, e.g., Special Education Opinion No (2005) (citing Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1041 (3d Cir. 1993)). 14 We do not find it necessary to determine which side has the burden of persuasion on either the jurisdictional argument or the merits, but the pertinent evidence is not close to being in equipoise. See, e.g., Schaffer v. Weast, 126 S. Ct. 528, 535 (2005). 15 See, e.g., NT at 129.

4 - 4 - proficiency level for grade 6 math was sua sponte. 16 The applicable case law establishes an ultra vires boundary for sua sponte orders but provides ample latitude for hearing/review officers to address reasonably inferable subsidiary or ancillary issues in the record. 17 In any event, the Parents had reason to know that the appropriate forum 18 for raising any such objection to the first hearing officer s decision was to file timely exceptions to that decision. 19 Finding ourselves months after the original decision with exceptions to a second hearing officer s decision, we have no choice but to affirm his conclusion that authority is lacking to relitigate or review the prior decision on the merits. Based on the record before us, which contains no justification for not filing timely exceptions to the prior, i.e., 8/1/06, hearing officer decision, we can only point out the Parents right to seek judicial review. 16 Neither side uses this term but it squares with the essence of their arguments. The Parents have not asserted, and we do not know of, any other plausible argument to counter the res judicata effect of the prior hearing officer s decision. The alternative that the hearing officer s conclusion with regard to the grade 6 math proficiency level was dicta is untenable in this case in light of 1) the parties evidence and arguments and 2) the hearing officer s issuance of this conclusion as an order. 17 See, e.g., Mifflin County Sch. Dist., 800 A.2d 1010 (Pa. Commw. Ct. 2002). The courts have applied this limitation to Chapters 14 (students with disabilities) and 16 (gifted students) without distinction. See, e.g., Susquehanna Township Sch. Dist. v. Frances J., 823 A.2d 249 (Pa. Commw Ct. 2003); Mars Area Sch. Dist. v. Laurie P., 827 A.2d 1249 (Pa. Commw. Ct. 2003) (Chapter 14); Hempfield Sch. Dist. v. Tyler M., 38 IDELR 68 (Pa. Commw. Ct (gifted). We have previously determined and applied the scope of this limitation but only upon proper (i.e., direct and timely) exceptions. See, e.g., Special Educ. Opinion Nos (2006) and 1736 (2006). 18 If, instead, the Parents considered the language at issue to be inadvertent (e.g., a typographical) error, the inferably proper procedure would be to promptly request correction via the Office for Dispute Resolution. 19 The Student s father, who represented him at both hearings, is an attorney, and, in any event, both hearing officers issued the appellate procedures to the parties as a matter of course.

5 - 5 - ORDER Accordingly, this 1st day of December 2006, the Panel unanimously affirms the hearing officer's orders. In accordance with 22 PA. CODE 16.63(l), the parties are advised that this matter may be appealed to the Commonwealth Court of Pennsylvania. Perry A. Zirkel for the Appeals Panel Date signed 12/1/06 Date mailed 12/1/06