Kozak v. Hampton Township School District

655 A.2d 641, 1995 Pa. Commw. LEXIS 111
CourtCommonwealth Court of Pennsylvania
DecidedMarch 1, 1995
StatusPublished
Cited by9 cases

This text of 655 A.2d 641 (Kozak v. Hampton Township School District) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kozak v. Hampton Township School District, 655 A.2d 641, 1995 Pa. Commw. LEXIS 111 (Pa. Ct. App. 1995).

Opinion

KELLEY, Judge.

Gary W. Kozak, Sr. appeals pro se an order of the Special Education Appeals Panel of the Commonwealth of Pennsylvania (appeals panel) that affirmed the decision of a Special Education Hearing Officer (hearing officer)1 ordering that the Hampton Township School District (school district) and Ko-zak prepare an individualized educational program (IEP) for Kozak’s son, Gary, pursuant to the Pennsylvania Special Education Regulations2 and the Pennsylvania Special Education Standards.3 We affirm.

The Individuals with Disabilities Education Act (IDEA),4 requires that for a state to receive federal assistance thereunder, it must provide a child with disabilities5 a “free appropriate public education”6 based on the unique needs of the student. 20 U.S.C. § 1412. The IDEA establishes minimum requirements for the education of children with disabilities. To implement those requirements, the Commonwealth, through the Department of Education (department), promulgated the Pennsylvania Special Education Regulations and the Pennsylvania Special Education Standards (state regulations). Under the state regulations, a school district must develop an IEP7 tailored in accordance with certain procedures for each child with a disability. 22 Pa.Code § 14.32.

Gary is a fifteen year old student attending a regular ninth grade class in the school district. Gary entered the school district during the 1985-86 school year as a first grade student. Due to Gary’s problems during the 1992-93 school year with nonpartici-pation, quietness and decline in academic [644]*644performance, Gary’s parents had him evaluated by a private psychologist in March of 1993 and a private psychiatrist in May of 1993. During these evaluations, Gary was found to be of average intelligence and was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). In May of 1993, Kozak requested that the school district conduct a multidisciplinary evaluation (MDE)8 of Gary pursuant to 22 Pa.Code § 14.25 and 22 Pa.Code § 342.25.

The school district ordered an MDE evaluation of Gary by a multidisciplinary team (MDT)9 which was conducted during the summer of 1993. The psychological component of the MDE was completed on July 1, 1993 and was largely consistent with the results of Gary’s private evaluations. In September of 1993, a comprehensive evaluation report was completed and the MDT agreed with Gary’s private evaluation in which he was diagnosed with ADHD. In addition, the MDT found Gary to meet the criteria for Serious Emotional Disturbance (SED) as set forth at 22 Pa.Code § 342.1(b).10 Due to the diagnosis of SED, Gary meets the criteria for “exceptional student” as that term is defined at 22 Pa.Code § 14.1.11

Kozak agreed with that portion of the MDT’s diagnosis that Gary has ADHD, but disagreed that Gary is also affected with SED. Kozak requested that the school district perform another MDE on Gary. The school district refused this request. Kozak timely requested a due process hearing in accordance with the department’s procedures set forth at 22 Pa.Code § 14.6412 and the [645]*645disagreement was submitted to a hearing officer. At the commencement of the due process hearing, both parties stipulated that Gary has ADHD.

The hearing officer framed the issue for resolution before him as: “Is Gary Kozak, Jr. an exceptional child?” .In reaching a decision, the hearing officer concluded:

[T]he School District has successfully established that Gary is presently functioning as a seriously emotionally disturbed student who also has an attention deficit-hyperactivity disorder and is in need of specially designed instruction in a Program of Emotional Support.

On January 25, 1994, the hearing officer entered the following order:

It is hereby ordered that the Hampton Township School District and Mr. and Mrs. Kozak prepare an Individual Educational Program for Gary Kozak, Jr. and place him in an appropriate Program for Emotional Support by virtue of his serious emotional disturbance and attention deficit-hyperactivity disorder. This should be done within 20 days after receipt of this decision if no appeal is filed.

Kozak filed timely exceptions with the department to the hearing officer’s recommendations, to which the school district responded. In his exceptions, Kozak asserted, among other things, that the hearing officer should have addressed the following: (1) whether Gary’s diagnosis with ADHD satisfied the criteria for “other health impairment” under 22 Pa.Code § 342.1(b);13 and (2) whether Gary is eligible, as an “other health impaired” student, to receive an IEP and services related thereto. (Original Kec-ord, Kozak’s Objections to the Hearing).

In considering whether the hearing officer adequately addressed the issue as framed by him, the appeals panel noted that the issue of whether Gary’s diagnosis with ADHD satisfied the criteria for “other health impaired” student “was not specifically and directly raised before the Hearing Officer”; however, the appeals panel addressed the merits of this issue and found that Kozak “showed no link between Gary’s ADHD and an ‘other health impairment’ ”. On March 1, 1994, the appeals panel affirmed the decision of the hearing officer after determining that he adequately addressed the issue as framed by him and that “the record unquestionably supports” that Gary is affected with SED. Ko-zak filed the within appeal to this court on March 28, 1994.

Kozak raises the following issues before this court: (1) Whether the hearing officer and the appeals panel “failed to rule on the issue” that was framed by the hearing officer: Is Gary Jr. an exceptional child with the stipulated and agreed upon disability of ADHD; (2) Whether the order of the hearing officer served to controvert Kozak’s parental due process rights; (3) Whether the school district failed to provide Kozak with full disclosure and explanation of his parental due process rights; (4) Whether Kozak should be reimbursed for all expenses incurred by him for the evaluation, psychiatric and psychotherapeutic counseling for Gary; (5) Whether the school district should provide Gary with private counseling at public expense; (6) Whether the school district should provide compensatory education time to Gary for the period commencing February 1993.

Our review of a decision by an appeals panel appointed by the Department of Education is limited to a determination of whether constitutional rights were violated, errors of law were committed, or the decision is supported by substantial evidence. 2 Pa. C.S. § 704. Conrad Weiser Area School District v. Department of Education, 145 Pa.Commonwealth Ct 452, 603 A.2d 701 (1992).

[646]*646First, Kozak argues that the hearing officer’s order does not address the fundamental question of whether Gary is an “exceptional” student with the stipulated and agreed upon ADHD.

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Bluebook (online)
655 A.2d 641, 1995 Pa. Commw. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kozak-v-hampton-township-school-district-pacommwct-1995.