# PRICE v. COMMONWEALTH CHARTER ACADEMY CYBER SCHOOL

> District Court, E.D. Pennsylvania · September 12, 2019

URL: https://www.frixlaw.com/law-library/cases/10397625

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 12, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARY E. PRICE : CIVIL ACTION
Plaintiff-pro se :
: NO. 17-5790
v. :
:
COMMONWEALTH CHARTER :
ACADEMY - CYBER SCHOOL :
Defendant :

NITZA I. QUIÑONES ALEJANDRO, J. SEPTEMBER 12, 2019

MEMORANDUM OPINION

INTRODUCTION
Presently, before this Court are cross-motions for summary judgment filed by Plaintiff
Mary E. Price (“Plaintiff”), individually, in her own right, and as legal guardian of minor child JH
and as the parent of minor child TR, and by Defendant Commonwealth Charter Academy – Cyber
School (“CCA”). [ECF 33, 34].1 These motions address Plaintiff’s appeal of the decisions issued
by a Pennsylvania Special Education Hearing Officer (“Hearing Officer”) in an underlying due
process litigation brought by Plaintiff pursuant to the Individuals with Disabilities Education Act
(“IDEA”),2 20 U.S.C. § 1400 et seq., which includes claims under the Americans with Disabilities
Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”). The issues before this

1 The Court is treating Plaintiff’s memorandum in support of summary judgment on the
administrative and supplemental record, [ECF 34], as a motion for summary judgment. This Court also
considers the parties’ responses, [ECF 38, 39], the parties’ supplemental briefs concerning Plaintiff’s
retaliation claim, [ECF 45, 46], and Plaintiff’s response to CCA’s supplemental brief. [ECF 47].

2 The Individuals with Disabilities Education Act was amended and renamed the Individuals with
Disabilities Education Improvement Act, effective July 1, 2005. See Pub. L. No. 108-446, 118 Stat. 2647,
2803 (2004). Notwithstanding this change in the name of the statute, courts and litigants, including the
parties in this action, continue to refer to this statute as the IDEA. See, e.g., H.E. v. Walter D. Palmer
Leadership Learning Partners Charter School, 873 F.3d 406, 408 (3d Cir. 2017). For clarity, this Court
will refer in this Memorandum Opinion to this statute as the IDEA.
Court are whether the Hearing Officer erred (1) in finding that CCA offered minor JH and minor
TR, independently, a free and appropriate public education (“FAPE”), and (2) in concluding that
Plaintiff was not denied meaningful participation in the development of each student’s independent
educational plans (“IEPs”). These issues have been fully briefed by the parties and are ripe for
disposition. For the reasons stated herein, CCA’s motion for summary judgment is granted, and

Plaintiff’s motion for summary judgment is denied. Accordingly, the decisions of the Hearing
Officer are affirmed.
BACKGROUND3
This matter involves claims affecting two minors, JH and TR. Therefore, a separate

background recitation is provided for each minor.
Factual Background as to JH
The facts regarding JH are as follows:
Plaintiff obtained physical custody of minor JH in October 2013, and of
JH’s educational decision-making rights in January 2014. [ECF 33-2 at 4]. JH has
been diagnosed with an anxiety disorder and ADHD. [Id. at 10]. Following
disputes between Plaintiff and JH’s public school involving JH’s IEP, Plaintiff
removed JH from the school district in the spring of 2014 and enrolled him in CCA,
where JH remained during the 2014-2015 and 2015-2016 school years. [Id. at 4-5,
10-11].

In February 2016, Plaintiff filed a special education due process complaint
alleging that CCA had denied JH a FAPE in the 2014-2015 school year and
continued this denial in the 2015-2016 school year. [Id. at 6]. In September 2016,
following an administrative hearing, a hearing officer found that CCA had denied
JH a FAPE in implementing JH’s preexisting IEP and in designing and
implementing IEP programming. [Id.]. Consequently, the hearing officer awarded
a “make-whole” compensatory education remedy which required CCA to pay a

3 The facts are taken primarily from the Hearing Officer’s factual findings in each case, which are
deemed to be prima facie correct. See S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d
Cir. 2003) (“Factual findings from the administrative proceedings are to be considered prima facie
correct.”). Additional facts which are largely undisputed, have been taken from the administrative record,
supplements thereto, and the parties’ respective filings. Any factual disputes, to the extent relevant, are
noted.
third-party provider for a maximum of 990 hours of compensatory education per
school year until such time as JH accomplished the goals from his May 2014
IEP. [Id.]. The hearing officer’s order also required the third-party provider to
disseminate quarterly progress reports to Plaintiff and CCA to gauge JH’s progress
in achieving the IEP goals. [Id.]. CCA coordinated with a third-party provider and
by mid-October 2016, that provider was prepared to enroll JH; however, Plaintiff
declined to sign the enrollment contract and JH did not enroll. [Id. at 11].

In November 2016, JH enrolled in another third-party provider’s program,
which was paid for by CCA pursuant to the hearing officer’s September 2016
order. As part of this contract, the provider was to provide JH with 240 hours of 1-
to-1 instruction and share progress reports with Plaintiff and CCA regarding the
IEP goals. JH was to receive instruction for 4-6 hours per day through February
2017, which the parties agreed would substitute for JH’s attendance and instruction
at CCA. Thereafter, JH showed progress in achieving the IEP goals. [Id. at 11-
13].

In December 2016, CCA requested that Plaintiff participate in an IEP
development meeting. Plaintiff objected to certain details of the IEP team
invitation. After CCA sent Plaintiff a draft IEP, she requested that the December
2016 IEP meeting be postponed. Ultimately, the meeting was not held. [Id. at 13-
14].

In late January 2017, Plaintiff realized that the third-party provider was
sharing progress reports with CCA and withdrew JH from the provider. [Id. at 11-
13]. JH returned to CCA, but according to Plaintiff, JH could not access lessons or
programming through CCA’s online platform despite CCA’s webmail system
being active and emails being sent by teachers in all of JH’s classes to both JH and
Plaintiff. Plaintiff never notified anyone that JH could not access lessons or
programming. [Id. at 18].

In January 2017, CCA attempted to reschedule an IEP meeting with
Plaintiff, and in February 2017, a meeting was scheduled for March 2017. Plaintiff
filed an action in this court seeking a temporary restraining order to stop the March
2017 IEP meeting; her request was denied. The IEP meeting was held on March
13, 2017. The attendees were to be Plaintiff, JH, CCA’s director of special
education, a CCA psychologist, a CCA special education manager, a CCA special
education teacher, a CCA general education teacher, and a counselor contracted by
CCA to provide counseling support to JH. However, Plaintiff and JH did not attend
the meeting. During the meeting, the IEP team called Plaintiff to seek her
participation by phone, but there was no answer and a voicemail message left for
her was not returned. The March 2017 draft IEP provided to Plaintiff in preparation
of the meeting contained JH’s present levels of academic achievement and
functional performance obtained from, inter alia, the third-party provider JH
attended from November 2016 through January 2017, and was otherwise largely
the same as the December 2016 draft IEP. The March 2017 draft IEP indicated that
Plaintiff’s input would be obtained at the IEP meeting. [Id. at 15-16].

The March 13, 2017 IEP meeting resulted in the drafting of the April 2017
IEP. This new IEP contained significant revisions and updated information; to
wit: the April 2017 IEP added JH’s then current grades to the present level of
academic achievement and functional performance contained in the March 2017
IEP; included input from JH’s counselor which was offered at the March 2017 IEP
meeting; added an explicit indication that the transition assessments would be
administered to update transition data; amended JH’s needs related to disability
from “improvement in executive functioning skills” to “improvement in
organizational skills”; called for JH to participate in Keystone Exams in algebra,
literature, and biology with accommodations; contained goals in self-advocacy,
reading comprehension, math computation, and written expression, all four of
which were strengthened from his previous IEPs; removed goals in math problem
solving, organization/task-approach, and auditory and language processing skills;
continued to include weekly in-person support from a board-certified behavior
analyst and daily in-person support from an instructional aide, but reduced the hours
based on Plaintiff’s historic resistance to having individuals work with JH in the
family home; removed weekly virtual counseling as those services were thought to
be addressed in the self-advocacy elements of the IEP; and marked giftedness as
“n/a.” [Id. at 16-18].

In February 2017 and April 2017, Plaintiff filed two administrative complaints (ODR
#18768-1617 and ODR #19108-1617), which were later consolidated.4 She raised claims under
the IDEA, ADA, and Section 504. Over the course of several days between April and August
2017, an administrative evidentiary due process hearing was held before the Hearing Officer. The
issues presented at the due process hearing centered on whether CCA denied JH a FAPE in: (1) its
handling of data results from the third-party provider; (2) not including specific medical diagnoses
in the April 2017 IEP; (3) denying Plaintiff meaningful participation in the IEP development;
(4) inappropriately composing the December 2016 and March 2017 IEP teams; (5) including
prejudicially deficient reports of present levels of academic and functional performance in the
December 2016 and April 2017 IEPs; (6) including insufficient post-secondary transition planning

4 The consolidated administrative case ultimately gave rise to this federal action as it pertains to
JH.
in the December 2016 and April 2017 IEPs; (7) including wrongful course placements; (8) failing
to exempt JH from Pennsylvania’s Keystone Exams; and (8) failing to identify JH as gifted. The
Hearing Officer also considered whether CCA discriminated against JH on the basis of his
disabilities in violation of Section 504.
On September 30, 2017, the Hearing Officer issued a decision essentially finding no

violation of the IDEA or JH’s right to a FAPE, or discrimination. [ECF 33-2]. The following is a
summary of the Hearing Officer’s decision:
Plaintiff alleged that CCA did not incorporate data from the third-party
provider in the December 2016 and April 2017 IEPs. The Hearing Officer noted
that at the time of the December 2016 IEP, JH was in the early stages of the third-
party service provider’s programming and the data was still coalescing and,
therefore, found that the absence of the data in the December 2016 IEP, which was
merely a draft for consideration, was not inappropriate. By contrast, he noted that
the relevant data was included in the April 2017 IEP. Accordingly, the Hearing
Officer found that CCA’s handling of the data from the third-party provider was
appropriate as to both the December 2016 and April 2017 IEPs. [Id. at 20-21].

Plaintiff further alleged that CCA did not incorporate JH’s specific medical
diagnoses in the IEPs. The Hearing Officer noted that the April 2017 IEP included
specific information from a January 2017 evaluation of JH “in terms of the report’s
detailed characterization of [JH’s] strengths and challenges.” [Id. at 21]. He also
noted that JH’s specific medical diagnoses were not contained in the IEPs, but
found that such absence did not render them inappropriate because IEPs were
required to identify the needs of a student, and programming to meet those needs,
not specific medical diagnoses, and the “December 2016 and April 2017 IEPs
appropriately identify and address [JH’s] needs and, through the modifications,
accommodations, specially designed instruction, related services, and supports in
those IEPs, provide programming that is reasonably calculated to yield meaningful
education benefit based on [his] unique learning needs.” [Id. at 22].

Plaintiff also alleged that she was denied meaningful participation in the
development of the IEPs. The Hearing Officer held that “the record supports a
finding that Plaintiff has definitely chosen not to engage in the IEP team processes
and record-sharing.” [Id. at 23] (emphasis original). He noted that Plaintiff’s
complaints “all potentially point to a flawed understanding of the IEP documents
shared with her,” namely, that they were draft documents prepared by CCA as a
starting point for the IEP process, open to collaboration and change with her input.
Instead, she chose to disengage and object, rather than engage and collaborate.
Additionally, Plaintiff alleged that the composition of the IEP team violated the
IDEA because there was not a regular education teacher present at the IEP
meeting. The Hearing Officer noted that because the Plaintiff did not attend the
March 2017 IEP meeting, it could be argued that she could not meet her burden of
persuasion on the issue. However, he also found that the April 2017 IEP contained
“extensive input from multiple regular education teachers from [CCA],” and
“[t]herefore, . . . the insight from a regular education perspective was, on some
level, part of the IEP team’s deliberations.” On that basis, the Hearing Officer
determined that the composition of the IEP team was appropriate. [Id. at 24-25].

Plaintiff further alleged that the IEPs did not include JH’s present levels of
educational academic achievement and functional performance, i.e., the present
levels from the third-party provider. As with Plaintiff’s allegations regarding the
data from the third-party provider, the Hearing Officer concluded that the present
levels were not yet developed enough for inclusion in the December 2016 draft IEP,
but were included in the April 2017 IEP. [Id. at 25-26]. Plaintiff also challenged
the post-secondary transition planning in the IEPs, but the Hearing Officer rejected
these contentions. The Hearing Officer found that the April 2017 IEP was
comprehensive and detailed with regard to transition planning, including the details
of previous CCA assessments, the details of transition assessments from a January
2015 private evaluation, and information from the Office for Vocational
Rehabilitation and the local intermediate unit in transition processes. Plaintiff
challenged JH’s course placements on grounds that are not exactly clear, and the
Hearing Officer found that the record is silent on the details of the course
placements, but that, in any event, “the goals and specially-designed instruction in
the December 2016 and April 2017 IEPs, along with the totality of [CCA]
communications from [JH’s] teachers and the testimony of [JH’s] special education
teacher and mathematics teacher, all combine to provide a picture that, regardless
of the exact course placement, [CCA’s] programming was reasonably calculated to
yield meaningful education benefit to [JH] in light of [JH’s] unique needs.” [Id. at
26-27].

Plaintiff also alleged that while both IEPs indicated that JH would
participate in Pennsylvania’s Keystone Exams, with accommodations, he did not
take the exams. The Hearing Officer acknowledged the inconsistency, and ordered
it rectified. [Id. at 27-28]. Finally, Plaintiff alleged that CCA failed to identify JH
as gifted under Pennsylvania Chapter 16 gifted education requirements. The
Hearing Officer found that Chapter 16 does not apply to charter schools and, even
if it did, the record did not support any finding that JH possessed any of the criteria
for gifted placement. [Id. at 29].

Finally, the Hearing Officer denied any claim of discrimination on the basis
of disability under Section 504. [Id. at 30-31].
Factual Background as to TR
The facts regarding TR are as follows:
TR is an early-teen aged student who is Plaintiff’s child. [ECF 33-3 at
3]. TR has been diagnosed with ADHD and a specific learning disability in written
expression. [Id. at 4]. In August 2013, Plaintiff removed TR from his public-
school district and enrolled him in CCA where TR remained through the 2013-
2014, 2014-2015 and 2015-2016 school years. [Id. at 4]. In September 2015, TR
was identified as also having needs in expressive language and social
cognition. [Id. at 8].

In February 2016, Plaintiff filed a special education due process complaint
alleging that CCA had denied TR a FAPE in the 2013-2014 and 2014-2015 school
years which continued during the 2015-2016 school year. [Id. at 4]. In September
2016, following an administrative hearing, a hearing officer found that CCA had
denied TR a FAPE. [Id.]. The hearing officer awarded an “hour-for-hour”
compensatory education remedy, requiring CCA to pay a third-party provider for a
maximum of 990 hours of compensatory education per school year for each year of
deprivation. [Id. at 5]. The hearing officer’s order also required the third-party
provider to disseminate quarterly progress reports to Plaintiff and CCA to gauge
TR’s progress in achieving the IEP goals. [Id.]. CCA coordinated with a third-
party provider and, by mid-October 2016, that provider was prepared to enroll TR;
however, Plaintiff declined to sign the enrollment contract and TR did not
enroll. [Id. at 9].

In November 2016, TR enrolled in another third-party provider’s program
paid for by CCA pursuant to the hearing officer’s September 2016
order. Contractually, the provider agreed to provide TR with 360 hours of 1-to-1
instruction and to share progress reports with Plaintiff and CCA regarding the IEP
goals. TR was to receive instruction for 4-6 hours per day through February 2017,
which the parties agreed would substitute for TR’s attendance and instruction at
CCA. Thereafter, TR showed progress in achieving the IEP goals.

In December 2016, CCA requested that Plaintiff participate in an IEP
development meeting. However, she objected to certain details of the IEP team
invitation. After CCA sent Plaintiff a draft IEP, she requested that the December
2016 IEP meeting be postponed. Ultimately, the meeting was not held. [Id. at 10].

The December 2016 draft IEP included a special consideration that TR
required assistive technology. A special consideration as to whether he had
behaviors that impeded his learning, however, was not endorsed. The IEP draft
contained present levels of academic achievement and functional performance,
including prior evaluation data, but none from the instruction provided by the third-
party provider. The IEP draft also indicated that TR’s special education teacher
was discussing transition planning to take place during the 2016-2017 school year
and included goals regarding transition issues, specifically post-secondary
education/training and employment in the field of astronomy. The IEP draft
indicated TR’s needs related to his disabilities; set goals in reading comprehension,
math problem-solving, and written expression; and included parental concerns.
The IEP draft also indicated that TR would take Pennsylvania’s PSSA tests, with
accommodations. [Id. at 10-13].

In late January 2017, Plaintiff realized that the third-party provider was
sharing progress reports with CCA and withdrew TR from the provider. [Id. at 9-
11]. In January 2017, CCA attempted to reschedule an IEP meeting with Plaintiff
but it wasn’t until February 2017, that a meeting was scheduled for March
2017. Plaintiff filed an action in this court, seeking a temporary restraining order
to stop the March 2017 IEP meeting; her request was denied. The scheduled IEP
meeting was held on March 13, 2017. The attendees were to be Plaintiff, TR,
CCA’s director of special education, a CCA psychologist, a CCA special education
manager, a CCA special education teacher, and a CCA general education teacher.
However, Plaintiff and TR did not attend the meeting. During the meeting, the IEP
team called Plaintiff to seek her participation by phone, but there was no answer
and a voicemail message left for her was not returned. [Id. at 13].

The March 13, 2017 IEP meeting resulted in the drafting of the April 2017
IEP. This new IEP contained the same special considerations as the December
2016 draft IEP, as well as TR’s current grades and teacher input as of March 2017
regarding the present levels of academic achievement and functional performance.
The present levels included data and results from TR’s achievement from the third-
party provider. The transition section remained the same and it was again indicated
that TR would take the PSSA tests with accommodations. Some of the goals
remained the same, but others were strengthened and added. The April 2017 IEP
included weekly in-person sessions in speech and language and occupational
therapy (“OT”); weekly in-person support from a board-certified behavior analyst
(1.5 hours weekly); and daily in-person support from an instructional aide (3 hours
daily). Giftedness was marked “n/a”; the nature of the educational placement as to
when TR would and would not participate with students without disabilities was
not indicated; and there was no explicit calculation of the percentage of the
instructional day in which TR would participate in regular education. [Id. at 14].

In February 2017 and April 2017, Plaintiff filed two administrative complaints (ODR
#18809-1617 and ODR #19109-1617), which were later consolidated.5 Over the course of several
days between April and August 2017, an administrative evidentiary due process hearing was
convened before the Hearing Officer. The issues at the due process hearing centered on whether

5 The consolidated administrative case ultimately gave rise to this federal action, as it pertains to
TR.
CCA denied TR a FAPE through: (1) its handling of data results from the third-party provider;
(2) denying Plaintiff meaningful participation in the IEP development; (3) inappropriately
composing the December 2016 and March 2017 IEP teams; (4) including prejudicially deficient
special considerations and reports of present levels of academic and functional performance in the
December 2016 and April 2017 IEPs; (5) including a prejudicially deficient educational placement

and/or calculation of hours-in-regular-education; (6) including inappropriate post-secondary
transition planning in the December 2016 and April 2017 IEPs; (7) including wrongful student
enrollment information; (8) not requesting permission to evaluate TR for OT needs; (9) failing to
exempt TR from Pennsylvania’s PSSA tests; and (10) failing to identify TR as gifted. The Hearing
Officer also considered whether CCA discriminated against TR on the basis of his disabilities, in
violation of Section 504.
On September 30, 2017, the Hearing Officer issued a decision finding no violation of the
IDEA or TR’s right to a FAPE, or discrimination. [ECF 33-3]. The following is a summary of
the Hearing Officer’s decision:

Plaintiff alleged that CCA did not incorporate data from the third-party
provider in the December 2016 and April 2017 IEPs. The Hearing Officer noted
that at the time of the December 2016 IEP, TR was in the early stages of the third-
party service provider’s programming and the data was still coalescing and,
therefore, found that the absence of the data in the December 2016 IEP, which was
merely a draft for consideration, was not inappropriate. By contrast, he noted that
the relevant data was included in the April 2017 IEP. Accordingly, the Hearing
Officer found that CCA’s handling of the data from the third-party provider was
appropriate as to both the December 2016 and April 2017 IEPs. [Id. at 16-17].

Plaintiff also alleged that she was denied meaningful participation in the
development of the IEPs. The Hearing Officer held that “the record supports a
finding that Plaintiff has definitely chosen not to engage in the IEP team processes
and record-sharing.” [Id. at 18] (emphasis original). He noted that Plaintiff’s
complaints “all potentially point to a flawed understanding of the IEP documents
shared with her,” namely, that they were draft documents prepared by CCA as a
starting point for the IEP process, open to collaboration and change with her input.
Instead, she chose to disengage and object, rather than engage and collaborate. He
also rejected Plaintiff’s allegations that CCA interfered with her ability to prepare
for the administrative proceedings, noting that records were made available to her,
but that she refused delivery of the electronic storage device (a flash drive). [Id.].
Additionally, Plaintiff alleged that the composition of the IEP team violated the
IDEA because the regular education teacher present at the March 2017 IEP meeting
was inappropriate. The Hearing Officer noted that the regular education teacher
invited was TR’s art teacher, which procedurally satisfied the IDEA’s requirement
that “‘not less than one regular education teacher of the child (if the child is, or may
be, participating in the regular education environment’ be an attendee at the IEP
meeting.” [Id. at 20] (quoting 34 C.F.R. 300.321). In any event, the Hearing
Officer further noted that, substantively, “the April 2017 IEP contains extensive
and, as of March 2017, quite recent input from multiple [CCA] regular education
teachers of [TR],” and, “[t]herefore, the insight from a regular education
perspective was both procedurally and substantively part of the IEP team’s
deliberations.” [Id.].

Plaintiff further alleged that the IEPs did not include TR’s present levels of
educational academic achievement and functional performance, i.e., the present
levels from the third-party provider. As with Plaintiff’s allegations regarding the
data from the third-party provider, the Hearing Officer concluded that the present
levels were not yet developed enough for inclusion in the December 2016 draft IEP,
but were included in the April 2017 IEP. [Id. at 20-21]. With regard to special
considerations, the Hearing Officer noted CCA’s position that any manifestation of
TR’s impairments had not appeared in recent CCA instructional environments, and
found that the record seemed to support that position. However, he further noted
that the terms of the IEPs revealed that TR had needs in organization/attention/task-
approach, and social skills, and found that the weekly in-person services called for
in the IEP should address those issues. He ordered that CCA continue to monitor
these issues. [Id. at 21-22].

The Hearing Officer agreed with Plaintiff’s allegation that the April 2017
IEP was missing a description of the nature of the educational placement as to when
TR would/would not participate with students without disabilities in non-academic
activities, in a regular classroom, and in the general education curriculum, as well
as the explicit PennData calculation of the percentage of the instructional day in
which TR would participate in regular education. The Hearing Officer directed
CCA to indicate the placement information and calculation in TR’s IEP. [Id. at 22].

With regard to Plaintiff’s allegation that transition planning was deficient,
the Hearing Officer noted that CCA was just at the outset of planning as TR had
only qualified for transition programming in the 2016-2017 school year. He further
noted that TR’s post-secondary education and employment goals were listed, along
with activities related to each, and in the 2016-2017 school year, TR worked with
teachers in CCA’s middle school transition-planning curriculum. For these
reasons, the Hearing Officer determined that the transition planning in the IEPs was
appropriate, and TR had not been denied a FAPE in this regard. [Id. at 22-23].
Plaintiff further alleged that TR’s enrollment date was erroneously listed in
the IEPs as the 2012-2013 school year, instead of the correct school year of 2013-
2014. The Hearing Office found the error was administrative and harmless, but
still directed CCA to correct the information. [Id. at 23]. With regard to Plaintiff’s
allegation that CCA should have ordered an OT evaluation, the Hearing Officer
noted the IEP’s robust programming regarding OT, and found no reason to fault
CCA for not pursuing an OT evaluation. [Id. at 23-24].

Plaintiff also alleged that while both IEPs indicated that TR would
participate in Pennsylvania’s PSSA testing, with accommodations, he did not take
the testing. The Hearing Officer acknowledged the inconsistency, and ordered it
rectified. [Id. at 24]. Finally, Plaintiff alleged that CCA failed to identify TR as
gifted under Pennsylvania Chapter 16 gifted education requirements. The Hearing
Officer found that Chapter 16 does not apply to charter schools and, even if it did,
the record did not support any finding that TR possessed any of the criteria for
gifted placement. [Id. at 24-25].

Finally, the Hearing Officer denied any claim of discrimination on the basis
of disability under Section 504. [Id. at 26-27].

Procedural Background
On December 28, 2017, Plaintiff timely filed a complaint in federal court appealing the
administrative decisions. This complaint was amended twice. The operative complaint was filed
on June 27, 2018; included claims under the IDEA, the Americans with Disabilities Act (“ADA”),
Section 504, and 42 U.S.C. § 1983 (for retaliation); and essentially argued that the Hearing Officer
erred by concluding (1) that CCA offered JH and TR FAPEs, and (2) that Plaintiff was not deprived
of her right to meaningfully participate in the IEP development process. [ECF 17].
LEGAL STANDARD
Under the IDEA, institutions that receive federal education funding are required to provide
all children with disabilities a free and appropriate public education (“FAPE”). 20 U.S.C.
§ 1400(d)(1)(A); § 1412(a)(1)(A); Endrew F. ex rel. Joseph F. v. Douglas Sch. Dist., 137 S. Ct.
988, 993 (2017); D.K. v. Abington Sch. Dist., 696 F.3d 233, 244 (3d Cir. 2012). A FAPE “includes
both ‘special education’ and ‘related services.’” Endrew F., 137 S. Ct. at 994 (citing 20 U.S.C.
§ 1401(26), (29)). Once a disabled child is identified, the School District must develop an
independent educational plan or IEP for the child that is “reasonably calculated to enable [the
student] to make progress appropriate in light of the child’s circumstances.” Id. at 1001; see also
20 U.S.C. § 1414(d) (defining individualized education program).6 “The adequacy of a given IEP
turns on the unique circumstances of the child for whom it was created.” Id. It must “set out a

plan for pursuing academic and functional advancement.” Id. at 999 (citing 20 U.S.C.
§ 1414(d)(1)(A)(i)(I)-(IV)). Although the state is not required to “maximize the potential of every
handicapped child,” it must provide an education that confers a “meaningful benefit” to each child.
Ridley School Dist. v. M.R. 680 F.3d 260, 268 (3d Cir. 2012). The benefit must be substantial, not
minimal. Endrew F., 137 S. Ct. at 1001.
The core of the IDEA is the collaborative process between parents and school officials to
fashion the IEP. Id. (citing 20 U.S.C. § 1414). This collaboration among the parents and educators
ensures careful consideration of the child’s individual circumstances. Id. “It is through the IEP
that [t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of

a particular child.” Id. at 1000 (internal quotations omitted). The IDEA “requires that every IEP
include ‘a statement of the child’s present levels of academic achievement and functional
performance,’ describe ‘how the child’s disability affects the child’s involvement and progress in
the general education curriculum,’ and set out ‘measurable annual goals, including academic and
functional goals,’ along with a ‘description of how the child’s progress toward meeting’ those
goals will be gauged.” Id. at 994 (citing 20 U.S.C. § 1414(d)(1)(A)). “An IEP is not a form

6 An IEP is a “written statement for each child with a disability” that includes a statement of the
child’s: (1) present levels of achievement and performance; (2) measurable annual goals; and (3) the special
education and supplementary aids and services to be provided to the child, as well as other details regarding
the child’s educational program. 20 U.S.C. § 1414(d)(1)(A)(I-IV).
document. It is constructed only after careful consideration of the child’s present levels of
achievement, disability, and potential for growth.” Id. at 999.
If parents believe that an IEP fails to provide their child with a FAPE, they may seek an
administrative “impartial due process hearing.” 20 U.S.C. § 1415(f). “Any party aggrieved by the
findings and decision” made in the administrative proceeding “shall have the right to bring a civil

action” in state or federal court. 20 U.S.C. § 1415(i)(2)(A). The district court shall review the
record of the administrative proceedings, shall hear additional relevant, non-cumulative and useful
evidence at the request of a party, and, based on a preponderance-of-the-evidence standard, grant
such relief as it deems appropriate. 20 U.S.C. § 1415(i)(2)(C); Susan N. v. Wilson Sch. Dist., 70
F.3d 751, 760 (3d Cir. 1995). The district court must give “due weight” to the hearing officer’s
decision. Bd. of Educ. v. Rowley, 458 U.S. 176, 205-06 (1982).
The concept of “due weight” requires a district court to conduct a “modified de novo
review” of the administrative proceedings. Shore Reg. High Sch. Bd. of Educ. v. P.S., 381 F.3d
194, 199 (3d Cir. 2004); S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260,

270 (3d Cir. 2003). Thus, courts are not free to “substitute their own notions of sound education
policy for those of the educational agencies they review.” Susan N. v. Wilson Sch. Dist., 70 F.3d
751, 757 (3d Cir. 1995) (citing Rowley, 458 U.S. at 205-06). A district court reviewing an
administrative fact-finder’s conclusions must defer to such factual findings unless the court
identifies contrary, non-testimonial evidence in the record, or explains why the record, read in its
entirety, compels a different conclusion. S.H., 336 F.3d at 270. The district court’s review of a
hearing officer’s application of legal standards and conclusions of law, however, requires no
deference to the administrative hearing officer’s legal determinations; rather, the legal
determinations are subject to plenary review. Id. at 271; Warren G. v. Cumberland Cty. Sch. Dist.,
190 F.3d 80, 83 (3d Cir. 1999).
The party challenging the administrative decision bears the burden of persuasion before
the district court as to each claim challenged. M.R., 680 F.3d at 270 (citations omitted). As the
Supreme Court noted, “[t]he burdens of pleading and proof with regard to most facts have been

and should be assigned to the [party] who . . . seeks to change the present state of affairs.” Schaffer
ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) (quoting 2 McCormick on Evidence § 337 at 412
(7th ed.)). Under the IDEA, it is the party “aggrieved by the findings and decision” of the hearing
officer that seeks to change the present state of affairs. See 20 U.S.C. § 1415(i)(2)(A). “Absent
some reason to believe that Congress intended otherwise,” the burden of persuasion falls where it
usually does, on the party seeking relief. Schaffer, 546 U.S. at 57-58.

DISCUSSION
With these legal principles in mind, this Court will separately address the issues raised as
to each student.
IDEA Claims
CCA argues that this Court should not consider Plaintiff’s claims regarding the various
draft IEPs issued for JH and TR. The Court agrees. The draft IEPs were provided to Plaintiff with
explicit instructions that they would “serve as a starting point for working as a team” at the IEP
meetings. Accordingly, since the draft IEPs were for discussion purposes only, CCA cannot be

found liable based on any alleged deficiencies in the drafts. See Coale v. Del. Dep’t of Educ., 162
F. Supp. 2d 316, 327 (D. Del. 2001) (refusing to allow parent to pursue claims based upon a
discussion draft of IEP provided in advance of the meeting, when parent postponed the meeting).
The Court also rejects Plaintiff’s many procedural arguments, i.e., that the Hearing Officer
erred by “unilaterally” extending the decision due date and by not issuing his decisions in a timely
fashion. After reviewing the procedural process, it is this Court’s opinion that the Hearing Officer
did not abuse his discretion in these procedural actions. A.S. v. William Penn Sch. Dist., 2014 U.S.
Dist. LEXIS 50261, at *15-16 (E.D. Pa. Apr. 10, 2014) (standard of review for procedural actions

taken by hearing officers during the administrative proceedings).
IDEA Issues Raised as to JH
With regard to Plaintiff’s allegation that JH’s April 2017 IEP did not include up-to-date
data from the third-party provider, Plaintiff concedes that such information was provided but
contends that information was “subjective” and “consisted of summarized excerpts” of progress
reports which “were of little, to no, value because they lacked context and failed to disclose that
the instructional materials utilized by [the third-party provider] are proprietary and have no direct
correlation to a public school, [sic] general education curriculum.” Plaintiff also argues that “it
remains unclear as to what information the IEP Team reviewed and discussed during the March

13, 2017 IEP meetings that allowed the IEP Team to determine JH’s . . . deficits and baselines for
the purposes of identifying goals, specially designed instruction, and related services.” Based on
the evidence of record, the Hearing Officer properly rejected Plaintiff’s allegations. The relevant
data was incorporated into the IEP. It is unfortunate that Plaintiff chose not to participate in the
meeting, but on this record the Court finds no error.
As to Plaintiff’s allegation concerning the lack of specific medical diagnoses in JH’s IEP,
Plaintiff apparently concedes that the diagnoses were not required under the IDEA, but still seems
to argue that the IEP was deficient because of their exclusion. As the Hearing Officer explained,
it is undisputed that JH had disabilities which qualify JH for special education services. Under the
IDEA, CCA is required to “create and implement an [IEP] based on [JH’s] needs and areas of
disabilities.” Munir v. Pottsville Area Sch. Dist., 723 F.3d 423, 426 (3d Cir. 2013). Whether CCA
did so is the question the Hearing Officer was tasked with addressing; whether JH’s specific
medical diagnoses were listed in the IEP is not relevant. Clearly, the Hearing Officer reviewed
the record and found that the April 2017 IEP included JH’s strengths, challenges, needs, and

identified modifications, accommodations, specially designed instruction, related services, and
supports reasonably calculated to address JH’s needs. Under the circumstances noted, this Court
finds that the Hearing Officer did not err in rejecting Plaintiff’s argument that JH was denied a
FAPE by CCA not including the specific medical diagnoses in the IEP.
As to Plaintiff’s assertion that CCA denied her right to meaningfully participate in the
development of JH’s IEP, Plaintiff cites a litany of frustrations in her communications with CCA,
perceived slights, and issues with JH’s Keystone Exams (i.e., the April IEP 2017 stating that JH
would need to take the exams with accommodations, despite Plaintiff’s position that JH should
have been exempted and JH ultimately not taking the exams). However, it is undisputed that

Plaintiff affirmatively chose not to participate in the IEP meetings, despite every effort being made
by CCA to include her in the process. This Court, therefore, finds that the Hearing Officer did not
err in rejecting this claim.
As to Plaintiff’s allegation that a regular education teacher did not attend the March 2017
IEP team meeting, the record is unclear. CCA’s director of special education testified at the
administrative hearing that the regular education teacher listed on the IEP sign-in sheet did attend
the meeting. (Tr. at 690). The same sign-in sheet, however, lists the regular education teacher
among the “IEP team members [who] were unable to attend the IEP meeting and have submitted
written input,” which was incorporated into the IEP. (CCA Ex. 28 at 3). At the administrative
hearing, Plaintiff did not question CCA’s special education director about this discrepancy. In any
event, the Hearing Officer concluded that: 1) Plaintiff did not meet her burden of establishing that
a regular education teacher did not attend the meeting, because Plaintiff herself was not at the
meeting and the only unchallenged testimony at the hearing was that a regular education teacher
did attend the IEP meeting; and 2) it is clear from the record that the written input of multiple

regular education teachers was included in the April 2017 IEP. While the presence of the regular
education teacher is preferred, the possible absence did not deprive JH of a FAPE where the IEP
included the input of multiple regular education teachers. This Court finds no merit to Plaintiff’s
contention.
With regard to Plaintiff’s allegation that the April 2017 IEP did not include JH’s present
levels of academic and functional performance from the third-party provider, Plaintiff is mistaken.
This information was included in the April 2017 IEP. To the extent Plaintiff contends that this
information was insufficient because it did not include the full text of the “Yellin Report,” the
Court agrees with CCA’s position that the Yellin Report was considered by the IEP team, as

evidenced by the testimony of CCA’s school psychologist Emily Stine, and the IEP itself. (Tr. at
296-303). Thus, the Hearing Officer did not err in rejecting this claim.
As to Plaintiff’s claims regarding transition planning, JH’s course placements, and CCA’s
failure to identify JH as gifted, Plaintiff provides no argument. This Court, however, finds that the
Hearing Officer did not err in rejecting these claims for the reasons provided.
IDEA Issue Raised as to TR
With regard to Plaintiff’s allegation that TR’s April 2017 IEP did not include up-to-date
data from the third-party provider, Plaintiff concedes that such information was provided but
contends that information was “subjective” and “consisted of summarized excerpts” of progress
reports which “were of little, to no, value because they lacked context and failed to disclose that
the instructional materials utilized by [the third-party provider] are proprietary and have no direct
correlation to a public school, [sic] general education curriculum.” Plaintiff also argues that “it
remains unclear as to what information the IEP Team reviewed and discussed during the March
13, 2017 IEP meetings that allowed the IEP Team to determine . . . TR’s . . . deficits and baselines

for the purposes of identifying goals, specially designed instruction, and related services.” Based
on the evidence of record, the Hearing Officer properly rejected Plaintiff’s allegations. The
relevant data was incorporated into the IEP. It is unfortunate that Plaintiff chose not to participate
in the meeting, but on this record the Court finds no error.
Relatedly, as to Plaintiff’s assertion that CCA denied her right to meaningfully participate
in the development of TR’s IEP, Plaintiff cites a litany of frustrations in her communications with
CCA, perceived slights, and issues with TR’s PSSA tests (i.e., the April IEP 2017 stating that TR
would need to take the tests with accommodations, despite Plaintiff’s position that JH should have
been exempted and TR ultimately not taking tests). However, it is undisputed that Plaintiff

affirmatively chose not to participate in the IEP meetings, despite every effort being made by CCA
to include her in the process. This Court, therefore, finds that the Hearing Officer did not err in
rejecting this claim.
With regard to Plaintiff’s allegation that the April 2017 IEP did not include TR’s present
levels of academic and functional performance from the third-party provider, the Court finds that
the Hearing Officer committed no error in rejecting this claim as the information was included in
the April 2017 IEP.
As to Plaintiff’s claims regarding TR’s course placement, transition planning, incorrect
enrollment date, OT, and CCA’s failure to identify TR as gifted, Plaintiff makes no argument in
this Court regarding these issues. As relevant, this Court finds that the Hearing Officer did not err
in ordering CCA to revise the April 2017 IEP to include a description of TR’s course placement
and the amount of time he would participate in a regular education classroom, without awarding
other relief to Plaintiff, and that Plaintiff failed to establish that TR would qualify for gifted
programming.

ADA and Section 504 Claims
To obtain relief under the ADA or Section 504, the evidence must show that a student with
disability, who was otherwise qualified to participate in a program of a recipient of federal funding,
was denied the benefits of the program or was otherwise subject to discrimination. Ridgewood Bd.
of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 253 (3d Cir. 1999); McDonald v. Com. of Pa., Dept.
of Public Welfare, Polk Ctr., 62 F.3d 92, 94-95 (3d Cir. 1995). A showing of deliberate
indifference on the part of the school is also required. S.H. ex rel. Durrell v. Lower Merion Sch.
Dist., 729 F.3d 248, 262-63 (3d Cir. 2013). Here, Plaintiff failed to establish that either JH or TR
was denied Participation in CCA’s academic program because of their disabilities, let alone that

CCA was deliberately indifferent to their disabilities. Under the circumstances, Plaintiff’s ADA
and Section 504 claims fail.7
42 U.S.C. § 1983 Retaliation Claim
Neither party’s summary judgment motion addressed Plaintiff’s § 1983 retaliation claim.
In an Order dated June 5, 2019, this Court noted as much, as well as the fact that Plaintiff did not

7 The Court notes that the Hearing Officer did not explicitly state that Plaintiff brought ADA claims
on behalf of JH and TR, or specifically address these claims. However, given that Plaintiff’s Section 504
and ADA claims are governed by the same standard, see S.H. v. Lower Merion Sch. Dist., 729 F.3d 248,
260 (3d Cir. 2013), as well as the Hearing Officer’s statements in each decision that “[t]he student was not
discriminated against on the basis of disability,” and that “[a]ny claim not specifically addressed in this
decision and order is denied,” the Court construes the Hearing Officer’s decisions as denying Plaintiff’s
ADA claims.
appear to have raised this claim in the administrative proceedings. [ECF 44]. Accordingly, the
Court ordered the parties “to file briefs addressing whether the retaliation claim at Count IV was
exhausted, whether this Court has jurisdiction over Count IV, and any other pertinent issues or
arguments related to the merit of the retaliation claim at Count IV.” [Id.]. In her supplemental
brief and response to CCA’s supplemental brief, Plaintiff concedes that she did not raise her § 1983

claim in the administrative proceedings but contends that her failure to do so is excused because
the relief she is seeking was not fully available in the administrative proceeding. [ECF 45, 46].
CCA, in turn, argues that the relief Plaintiff sought in her § 1983 claim was available under the
IDEA; that she was, therefore, required to exhaust her administrative remedies; and that because
she did not raise it in the administrative proceedings, this Court lacks subject-matter jurisdiction
over the claim. [ECF 47]. This Court agrees with CCA.
The IDEA requires the exhaustion of administrative remedies, i.e., the raising of a claim in
the administrative proceedings. See 20 U.S.C. § 1415(f), (i)(2)(A). This exhaustion requirement
extends to non-IDEA claims that seek relief that is available under the IDEA. Id. § 1415(l)

(“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies
available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et
seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws
protecting the rights of children with disabilities, except that before the filing of a civil action under
such laws seeking relief that is also available under this subchapter, the procedures under
subsections (f) and (g) shall be exhausted to the same extent as would be required had the action
been brought under this subchapter.”); see also Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d
266, 272 (3d Cir. 2014) (“Exhaustion of the IDEA’s administrative process is also required in non-
IDEA actions where the plaintiff seeks relief that can be obtained under the IDEA.”). The Third
Circuit has held that § 1983 claims brought by parents claiming retaliation as a result of their
efforts to vindicate their child’s right to FAPE can be asserted under the IDEA and, thus, must be
administratively exhausted. S.D. by A.D. v. Haddon Heights Bd. of Educ., 722 F. App’x 119, 126
(3d Cir. 2018). Thus, since Plaintiff did not raise a § 1983 retaliation claim in the administrative
proceedings, this the claim is not exhausted and, therefore, is dismissed for a lack of subject-matter

jurisdiction.
CONCLUSION
This Court finds that the administrative record supports the facts and the legal conclusions
reached by the Hearing Officer. These findings are consistent with the requirements of the IDEA.
Therefore, for the reasons set forth, Plaintiff’s retaliation claim at Count IV is dismissed for lack

of subject-matter jurisdiction, the decision of the Hearing Officer is affirmed, Plaintiff’s motion
for summary judgment is denied, and CCA’s motion for summary judgment is granted. Plaintiff’s
motion to introduce additional evidence is also denied. An appropriate Order consistent with this
Memorandum Opinion follows.
NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397625. Public record. Not legal advice.