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Price v. Commonwealth Charter Academy - Cyber School

United States District Court, E.D. Pennsylvania

August 13, 2019

MARY E. PRICE, Plaintiff-pro se




         Presently, before this Court are cross-motions for summary judgment filed by Plaintiff Mary E. Price (“Guardian”), individually, in her own right and as legal guardian of minor child JH, and by Defendant Commonwealth Charter Academy - Cyber School (“CCA”). [ECF 20, 21].[1]These motions address Guardian's appeal of the decision issued by the Pennsylvania Special Education Hearing Officer (“Hearing Officer”) in an underlying due process litigation brought by Guardian pursuant to the Individuals with Disabilities Education Act (“IDEA”), [2] 20 U.S.C. § 1400 et seq. The question posed herein is whether the Hearing Officer committed error in finding that CCA offered minor JH a free and appropriate public education (“FAPE”) despite CCA not granting JH's request for homebound instruction. The relevant issues have been fully briefed and are ripe for disposition. For the reasons stated herein, CCA's motion for summary judgment is granted and Guardian's motion for summary judgment is denied. Therefore, the decision of the Hearing Officer is affirmed.

         BACKGROUND [3]

         Guardian obtained physical custody of minor JH in October 2013, and of JH's educational decision-making rights in January 2014. [ECF 20-2 at 3]. JH has an anxiety disorder and ADHD. [Id. at 6]. Following a dispute between Guardian and the public-school district where JH attended, Guardian removed JH from that school district in spring 2014, and enrolled JH in CCA during the 2014-2015 and 2015-2016 school years. [Id. at 3-4].

         CCA provides all instruction online. [Id. at 6]. That is, CCA teachers' lectures are broadcast via online classrooms, which students may watch either live or as recordings at the convenience of the student. [Id.]. Class assignments, tests, and communications between teachers and students are conducted online. [Id.]. CCA neither restricts nor regulates where students are located when they access its software. [Id.]. JH primarily accessed CCA's software from a computer in Guardian's home. [Id.].

         During JH's enrollments, disputes arose between Guardian and CCA regarding CCA's implementation of the independent educational plan (“IEP”) that transferred with JH from the school district to CCA. [Id. at 4-5]. Guardian filed several due process complaints, some of which were decided in favor of Guardian, and some were not; most are not particularly relevant to the present matter. [Id.].

         In April 2017, JH turned seventeen years of age. His April 2017 IEP, as modified, included thirty minutes per week of virtual counseling, one-to-one support from an Instructional Assistant (“IA”) for two hours per school day, and one-to-one support from a Board Certified Behavior Analyst (“BCBA”) for one hour per week. [Id. at 7]. The IA and BCBA services were to be provided by CCA in person at JH's home, not online. [Id.]. CCA asserts that the IA and BCBA services were offered to JH, but that JH did not utilize either service. [Id.]. Guardian disputes this assertion in her memorandum and argues that:

The [the Hearing Officer's] Decision falsely states Guardian did not communicate with the individuals retained by [CCA] to provide BCBA and IA services. At the hearing, Guardian testified that she spoke with several of the related service providers. She further stated that after explaining JH's diagnoses, deficits, and anxiety concerns, each of the providers indicated they had not been provided this information by [CCA]. Additionally, each of the providers stated they were not qualified to work with JH.

[ECF 21 at 21]. However, in the portion of the hearing transcript Guardian cited to in support of these assertions, Guardian testified only that several service providers called her, and that she told them “if [JH] resumed CCA's online program, then [she] would keep their information and possibly call them back to start services if he came out of homebound instruction.” [Hr'g Tr. at 120-121].

         On October 7, 2017, Guardian submitted a letter to CCA from JH's psychiatrist which provided, in its entirety, the following:

[JH] is a patient of this psychiatrist at this center. It is recommended as medically indicated that, in view of [JH's] current level of anxiety in [JH's] present school program, [JH] be provided homebound instruction at this time.

[Id.]. With the psychiatrist's letter, Guardian requested a copy of CCA's homebound instruction policy and that CCA draft a plan of action for the psychiatrist's review. [Id.]. However, CCA does not have a homebound instruction policy. [Id.]. A representative of CCA responded in a letter to Guardian that CCA does provide homebound instruction compliant with relevant laws and regulations when recommended for psychological or psychiatric reasons. In the same letter, the representative advised Guardian that CCA would need additional information from JH's psychiatrist and needed to discuss with the psychiatrist the kinds of academic tasks suitable for JH. Accordingly, CCA's representative requested that Guardian sign a release allowing CCA to communicate with the psychiatrist to substantiate through medical records the need for homebound instruction. [Id. at 8; Administrative Record, S-5]. CCA wanted to communicate with JH's psychiatrist to ensure that the psychiatrist understood that CCA was a cyber school, and to gain an understanding of what the psychiatrist meant by homebound instruction in a cyber setting. [ECF 20-2 at 8].

         Guardian refused to consent to CCA communicating with the psychiatrist. [Id.]. In a December 2017 email, the CCA representative informed Guardian that CCA needed clarification from JH's psychiatrist as to the appropriate support needed for homebound instruction, given that CCA's program did not require students to leave the home, and Guardian had refused the in-home services that were already part of JH's IEP. The representative further explained that “CCA cannot move forward with your request without more medical information because the provisions that are typically part of Homebound Instruction are already provided through our program.” [Administrative Record at S-10 at 2].

         On January 8, 2018, an administrative evidentiary due process hearing was convened before the Hearing Officer. The issues at the due process hearing were: (1) whether CCA violated the IDEA in its response to Guardian's request for homebound instruction; and (2) whether CCA violated JH's right to a FAPE under the provisions of the IDEA, Section 504 of the Rehabilitation Act (“Section 504”), and/or the Americans with Disabilities Act (“ADA”) by refusing to provide homebound instruction. On February 16, 2018, the Hearing Officer issued a decision finding no violation of the IDEA or JH's right to a FAPE. [ECF 20-2]. In the decision, the Hearing Officer noted the following:

Pennsylvania draws a distinction between “homebound instruction” and “instruction in the home.” Homebound instruction is temporary education service in the home for students with and without disabilities who cannot be physically present at school for three-month periods of time (subject to reevaluation and extension). Instruction in the home is a special education placement under the IDEA which Pennsylvania charter and cyber schools are obligated to make available to children with disabilities. [Id. at 9-10]. The Hearing Officer opined that “[m]ore likely than not, Pennsylvania laws do not require cyber charter schools to provide homebound instruction as a regular education intervention, ” given that “cyber charter schools provide instruction in the home through their typical pedagogical systems, ” and “[t]he applicability of regulations designed to enable students who cannot physically go to school on a temporary basis to get some education is questionable in circumstances in which ...

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