Pennsylvania Special Education Hearing Officer

Final Decision and Order


ODR File Number: 18768-16 17 and 19108 16 171

Child’s Name: J. H.

Date of Birth: [redacted]

Dates of Hearing:2

4/20/17, 5/3/17, 6/6/17, 6/8/17, 6/15/17, 8/18/17



Pro Se

Local Education Agency:
Commonwealth Charter Academy, 4050 Crums Mill Road, Suite 303, Harrisburg, PA 17112

Counsel for the LEA

Kimberly Colonna, Esquire and Thomas Markey, Esquire 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108

Hearing Officer: Michael J. McElligott, Esquire

Date of Decision:3 9/30/17


Student (“student”)4 is a late teen-aged student who attends the Commonwealth Charter Academy (“Charter School”), a Pennsylvania cyber charter school. The parties agree that the student qualifies under the terms of the Individuals with Disabilities in Education Improvement Act of 2004 (“IDEIA”)5 as a student formally identified with a health impairment, although the student presents with a mosaic of medical diagnoses and consequent needs in the educational environment. The student has long been at the center of disputes between the family and education providers, including a school district where the student formerly attended and the Charter School.

Guardian claims that the student was denied a free appropriate public education (“FAPE”) for the 2016-2017 school year, an alleged denial that continues through the date of this decision in the early part of the 2017-2018 school year. The guardian claims that the student was denied FAPE, and discriminated against on the basis of disability, under the terms of the Rehabilitation Act of 1973, particularly in Section 504 of that Act (“Section 504”).6 The guardian also asserts that the Charter School failed to identify the student as a gifted student under Pennsylvania’s gifted education regulations.7

The Charter School counters that at all times it met its obligations to the student under IDEIA/Chapter 711 and Section 504 as its programming was designed to provide FAPE to the student and, had it had the opportunity to implement the programming, it would have delivered FAPE to the student. As to Chapter 16, the Charter School argues that Pennsylvania’s Chapter 16 gifted regulations do not apply to it, or to any student enrolled in the Charter School, under the provisions of Pennsylvania Public School Code of 1949 (“School Code”).8 As such, the Charter School argues that the guardian is not entitled to remedy.

For the reasons set forth below, I find in favor of the Charter School.


Did the Charter School deny the student FAPE in any of the following particulars?

  1. Did the Charter School err in its handling of data results from the private third-party services ordered in ODR file #17321-1516KE?
  2. Was the Charter School programming inappropriate because it did not include specific medical diagnoses?
  3. Was the guardian denied meaningful participation in the December 2016 IEP meeting, the March 2017 IEP meeting, and/or through a lack of record-sharing by the Charter School?
  4. Was the composition of the December 2016 and March 2017 IEP teams appropriate?
  5. Were the present levels of academic and functional performance in the December 2016 and April 2017 IEPs prejudicially deficient?
  6. Was the post-secondary transition planning in the December 2016 and April 2017 IEPs appropriate?
  7. Was any aspect of the student’s course placements wrongful?
  8. Was any exemption of the student from Pennsylvania’s Keystone Exams wrongful?
  9. Did the Charter School fail in any obligation to the student under Chapter 16?

    Did the District discriminate against the student on the basis of disability?


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