PENNSYLVANIA
SPECIAL EDUCATION HEARING OFFICER
DECISION
DUE PROCESS HEARING
Name of Child: I.W.
ODR #14498/13-14 AS
Date of Birth: [redacted]
Dates of Hearing: December 17, 2013 April 25, 2014 November 11, 2014
CLOSED HEARING
Parties to the Hearing: Parent[s]
School District of Philadelphia Office of General Counsel
440 N. Broad Street, 3rd Floor Philadelphia, PA 19130
Main Line Academy 124 Bryn Mawr Avenue Bala Cynwyd, PA 19004
Representative:
Benjamin Hinerfeld, Esquire
Michele Reichow, Esquire
Law Offices of Benjamin J. Hinerfeld
2 Penn Center, Suite 1020
1500 JFK Blvd – Philadelphia, PA 19102
Sonja Kerr, Esquire PILCOP
1709 Benjamin Franklin Parkway, 2nd Floor
Philadelphia, PA 19103
Brian Subers, Esquire
Fox Rothschild, LLP
10 Sentry Parkway, Suite 200 P.O. Box 3001
Blue Bell, PA 19422-3001
Gabrielle Sereni Raffaele & Puppio 19 West Third Street Media, PA 19063
Date Record Closed: December 10, 2014
Date of Decision: December 17, 2014
Hearing Officer: Linda M. Valentini, Psy.D., CHO Certified Hearing Official
Background
Student1 is a teenaged student with a specific learning disability who has been identified as eligible for special education under the Individuals with Disabilities Education Act [IDEA] in accordance with Federal and State Standards.2 Student resides in the District with Student’s mother and siblings. Student currently attends a District vocational/technical high school [High School] full time, but previously had a split daily schedule: a half-day in the High School and the other half day in Private School, with the latter placement being funded through the District pursuant to an agreement with Student’s Parent.
The Parent filed this due process complaint against both the District and the Private School, raising claims under Section 504 of the Rehabilitation Act of 1973,3 and the Americans with Disabilities Act,4 as well as the federal and state regulations implementing those statutes. The Parent alleges that the Private School and the District engaged in discriminatory and retaliatory acts against Student because the Parent had filed two previous due process complaints5 which had asserted a denial of a free appropriate public education [FAPE] to Student under the IDEA.
I lack jurisdiction to consider claims under the ADA that are not directly related to allegations of denial of FAPE. My authority arises under the IDEA and the federal and state regulations implementing that statute, as well as the state regulations implementing Section 504.6 Special education due process hearing officers have authority to decide issues relating to a proposed or refused initiation of or change in the child’s identification, evaluation, or educational placement; or the provision of FAPE to a child, under the IDEA.7 In Pennsylvania, they are also granted authority to decide FAPE and related issues under Section 504, including discrimination against a student based upon disability, in accordance with the procedures provided by the IDEA and Pennsylvania’s Chapter 14.8 The instant matter does not allege a denial of FAPE. I find nothing in 22 Pa. Code Sections 14.102(a)(1), 14.102(a)(2), or 15.1(a) that bestows jurisdiction over non FAPE-related claims arising under the Americans with Disabilities Act…(i)n particular…claims under regulations implementing Title II of the ADA 28 C.F.R. Section 35.160. Accordingly I will not make any findings or determinations related to claims under the Americans with Disabilities Act.
On December 11, 2013 the District through counsel filed a Motion to Dismiss arguing that the hearing officer lacked jurisdiction because hearing officers cannot award monetary damages, because at least one hearing officer has said that Parents may not have a due process hearing solely on discrimination-based claims, and that any denial of FAPE claims were already before another hearing officer in the IDEA Action. The Parent through Counsel responded to the District’s Motion on December 12, 2013. I issued a ruling denying the District’s Motion; the ruling9 is attached to this Decision as Appendix One.
Several months after the initiation of these proceedings, and after the first hearing session, Private School through newly retained counsel filed a Motion to Dismiss; an Answer was filed on the Parent’s behalf in a timely manner. For reasons amply put forth in the Parent’s Answer with which I was in agreement I denied the Private School’s Motion but did not grant the Parent’s petition for summary judgment against the Private School, which Motion was based upon the Private School’s failure to timely file an Answer to the due process Complaint.10
Issue[s]
Did Private School and/or the School District of Philadelphia [District], through its agent Private School, act in a discriminatory and retaliatory manner toward Student and Parent because the Parent had filed previous due process complaints against the District?
I-W-Philadelphia-ODRNo-14498-13-14-AS