Special Education Hearing Officer
Child’s Name: M.B.
Dates of Hearing: 8/18/2016
DECISION DECIDED BY MOTION
ODR File No. 18046-16-17
Parties to the Hearing:
Local Education Agency
New Media Technology Charter School 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 of Decision: September 9, 2016
Hearing Officer: Charles W. Jelley Esq. LL.M.
1. During the 2015-2016 school year, the Student was enrolled as a 6th grader and attended Charter School.
2. Sometime prior to or during the 2015-2016 school year, the Student was diagnosed, by another school district, as a person with an unspecified disability. During 6th grade, the Student failed some classes and had ongoing behavioral, social, and educational problems. The Parent contends due to the Student’s emotional and impulse control deficits the Student was removed from the school on 35 different occasions during one school year.
3. At all times relevant, the Charter School was the Local Educational Agency (“LEA”) responsible for locating, evaluating and educating the Student. 20 U.S.C. §1401 et. seq.
4. Sometime during the 2015-2016 school year, the LEA evaluated the Student and determined the Student 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.
5. The Parents further contend once the LEA identified the Student as a person with a disability the LEA failed to provide the Student with the agreed upon 220 minutes of learning support each week. Finally, the complaint alleges the LEA’s program(s) failed to provide the Student with meaningful educational progress. The due process complaint further alleges that the Student’s program failed to include a positive behavioral program, emotional support, and other necessary supplemental aids and services.
6. 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.
7. 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.
8. 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.
9. To remedy the alleged violations, the Parent seeks an award of compensatory education.
10.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.
11. The complaint alleges the LEA has closed and will not contest or defend the Parents’ denial of FAPE claims.
12.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 regards 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.
13.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).
14.The Parents seek to establish the SEA’s failure(s) either caused or in some fashion contributed to the LEA’s child find violation and a denial of a free appropriate public education in the least restrictive setting. To remedy the ongoing dispute the Parents seek an award of 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 SEA’s Motion to Dismiss
15.The SEA responded to the Complaint by filing a Motion to Dismiss. Stated simply, the SEA’s Motion contends the hearing officer lacks subject matter and in personam jurisdiction over the SEA to hear this matter and grant any relief.
16.Upon receipt of the SEA’s motion, the hearing officer invited the Parents to submit a response to the SEA’s Motion, followed by an invitation to the SEA to submit a sur-reply.
17.The Parents filed a 79-page response with multiple attachments. The SEA filed a timely sur-reply.
18.On August 17, 2016, the hearing officer directed the Parties to file letter briefs, on what effect, if any, a recent August 5, 2016, United States Department of Education Dear Colleague Letter on the role of the SEA, the local school district, and LEA charter schools may have in locating, evaluating, and educating children with disabilities in charter schools.
19.On August 26, 2016, both Parties filed the Dear Colleague letter briefs.
20.The Pleadings are closed, and the matter is ripe for adjudication.M-B-New-Media-Technology-Charter-ODRNo-18046-16-17