Special Education Hearing Officer
Child’s Name: K.B.
Dates of Hearing: 8/18/2016
DECISION DECIDE BY MOTION
ODR File No. 18045-16-17
Parties to the Hearing:
Local Education Agency
Pennsylvania Department of Education 333 Market Street, 9th Floor Harrisburg, PA 17101
Daniel Cooper Esq.
Law Offices of Kenneth S. Cooper 45 E. City Avenue, #400
Bala Cynwyd, PA 19004 610-608-6185
Elizabeth Anzalone Esq. 333 Market Street, 9th Floor Harrisburg, PA 17126 717-787-5500
Date: September 9, 2016
Hearing Officer: Charles W. Jelley Esq.
- During the 2015-2016 school year, the Student was enrolled as a 6th grader and attended Charter School.
- Sometimepriortoorduringthe2015-2016schoolyear,theStudentwas diagnosed, by another school district, as a person with a Specific Learning Disability and an Emotional Disturbance. During 6th grade, the Student failed some classes and had ongoing behavioral, social, and educational problems. The Parent contends the Student was removed from school and the Student’s program lacked a positive behavior program.
- Atalltimesrelevant,theCharterSchoolwastheLocalEducationalAgency (LEA) responsible for locating, evaluating and educating the Student. This responsibility is commonly called the “child find” duty. 20 U.S.C. §1412(a)(11).
- Sometimeduringthe2015-2016schoolyear,theLEAevaluatedtheStudent and determined the Student was qualified as a person with a disability who needed specially-designed education as described by the Individuals with Disabilities Education Act (IDEA). 20 U.S.C. §1401 et. seq.
- Pursuant to 20 U.S.C. §1413 et. seq., the Pennsylvania Department of Education (PDE) was the State Educational Agency (SEA) responsible for direct general supervision of each LEA’s provision of IDEA services during all relevant times.
- PDE acting as the SEA has a general supervisory responsibility to ensure that all students with a disability in the Commonwealth are located, evaluated, and educated. Id.
- The Parents filed a due process complaint notice alleging the LEA Charter School failed to identify, evaluate, and educate the Student. The Parents’ complaint alleged the Charter School was the responsible LEA. To remedy the alleged violation, the Parent seeks an award of compensatory education.
- On July 24, 2016, the Parents filed a second due process complaint notice this time against the Pennsylvania Department of Education acting in the role of the SEA. The SEA complaint does not identify the Student’s LEA. The factual narrative describing the SEA’s alleged violation is identical to the factual narrative describing the LEA’s alleged violations in the Parents’ due process complaint notice filed against the LEA.
- The complaint alleges the LEA has closed and will not contest or defend the Parents’ denial of FAPE claim.
- The SEA complaint does not allege the SEA ever refused to locate, evaluate, or educate the Student. The SEA complaint does not allege the SEA ever took any action whatsoever in regard to the Student’s overall education. The SEA complaint does not allege that the Parents ever notified the SEA of the alleged FAPE violations or filed a complaint with PDE about the evaluation, identification, or education of the Student.
- The Parents contend pursuant to the SEA’s “general supervisory responsibilities” the SEA is now the proper party to defend the omissions or inactions of the LEA. 20 U.S.C. §1412(a)(11); §1413(g).
- The Parents seek to establish the SEA’s failure either caused or in some fashion contributed to the LEA’s FAPE violation. The Parents seek an independent educational evaluation and compensatory education; the Parents do not seek future services in upcoming school years. The due process complaint does not identify if the Student is currently enrolled in school.
The issue is does either 20 U.S.C. §1412 et seq., and/or 20 U.S.C. §1413 et. seq. of the IDEA, provide jurisdiction over the SEA, thereby permitting the Student to enforce an implied or direct cause of action against the SEA? If the answer is yes, can the Student litigate the IDEA claim at an administrative due process hearing within the meaning of 20 U.S.C. §1415 et seq. The answer to both questions is no. For all the reasons set forth herein, the SEA’s Motion is granted and an appropriate Order dismissing the Parents’ claims against the SEA as exhausted is attached hereto.K-B-Pennsylvania-Department-of-Education-ODRNo-18045-16-17