Pennsylvania
Special Education Hearing Officer
DECISION
Child’s Name: T.R.
Date of Birth: [redacted]
Dates of Hearing: 3/21/2016, 7/7/2016, 7/8/2016, 7/22/2016, 7/29/2016, 8/1/2016 and 8/2/2016
Open HEARING
ODR File No. 17322-15-16
Parties to the Hearing:
Parents Parent[s]
Local Education Agency Commonwealth Connections Academy Charter School
4050 Crums Mill Road
Harrisburg, PA 17112
Representative:
Parent Attorney Pro se
LEA Attorney
Kimberly Colonna Esq.
McNees, Wallace, & Nurick, LLC 100 Pine Street, PO Box 1166 Harrisburg , PA 17108-1166 717-232-8000
Date of Decision: September 17, 2016
Hearing Officer: Charles W. Jelley Esq. LL.M.
Overview and procedural history
The Parent filed a due process complaint alleging violations of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), Title II of the Americans with Disabilities Act (ADA), and a First Amendment to the United States Constitution free speech/retaliation claim, seeking legal and equitable relief. The Parent’s due process hearing complaint alleges individual and system-wide substantive and procedural claims of the IDEA and Section 504 claims.1 The Parent represented the Student. Legal counsel represented the Charter School.
As a threshold matter, this hearing officer finds he does not have subject matter jurisdiction over the Parent’s claims under the ADA and the First Amendment. Therefore, the ADA discrimination and the First Amendment speech/retaliation claims are dismissed with prejudice and are therefore exhausted.
The Parent claims the Student did not receive a Free Appropriate Public Education (FAPE) during the 2013-2014, 2014-2015 and the 2015-2016 school years. The Parent argues when the record is viewed as a whole, the LEA’s substantive and procedural violations establish a three-year denial of FAPE. To support these generalized contentions, the Parent points to the lack of a continuum of options. Next, they suggest that the Student needs daily live hands-on instruction either in the home or in bricks and mortar setting. The Parent points to the Student’s failing grades, incomplete or missing legally sufficient prior written notices (PWN), and Student’s overall lack of meaningful progress. Finally, the Parent contends the evidence is preponderant that the LEA’s programs as designed were inappropriate ab initio.
The Charter School filed a motion to dismiss arguing certain claims were barred by the statute of limitations. After taking testimony and reviewing the Parties written submissions, I denied the Charter School’s motion. Therefore, Parent’s claims for all three school years were presented and decided herein.
The LEA specifically denies any procedural violations occurred. In the alternative, if any did occur, they contend that the procedural violations did not rise to the level of a denial of FAPE. Next, they contend the Student made progress. Based upon these two main arguments the LEA argues the Student’s claims do not merit either compensatory education or a prospective placement. As the evidence proffered was limited to this Student, I find that the Parent did not prove a system-wide failure; that said, the violations established for this Student were, however, preponderant and reached the level of a denial of FAPE.
To remedy the violations, the Parent suggests an award of retrospective compensatory education and a prospective placement in a private setting. Although the hearing covered multiple sessions with numerous witnesses, the Parent did not offer any evidence on the prospective placement relief. Therefore, the Parent did not meet the burden of proof to merit a prospective placement. Accordingly, absent a record, I am not inclined to grant a prospective placement.
Although the Parent requested a qualitative award of compensatory education, she failed to present any proofs. As for the compensatory education relief, the record does not contain an expert report to support that type of award. When the record is read as a whole, the evidence is, however, sufficient to construct, formulate, and calculate an equitable make whole hour-for-hour compensatory education relief.2
Issues
Did the Charter School fail to provide the Student with FAPE during the 2013-2014 school year? If the answer is yes, is the Student entitled to an equitable award of compensatory education?
Did the Charter School fail to provide the Student with FAPE during the 2014-2015 school year? If the answer is yes, is the Student entitled to an equitable award of compensatory education?
Did the Charter School fail to provide the Student with FAPE during the 2015-2016 school year? If the answer is yes, is the Student entitled to an equitable award of compensatory education?
T-R-Charter-ODRNo-17322-15-16