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Price v. Commonwealth Charter Academy - Cyber School

United States District Court, E.D. Pennsylvania

September 12, 2019

MARY E. PRICE Plaintiff-pro se
v.
COMMONWEALTH CHARTER ACADEMY - CYBER SCHOOL Defendant

          MEMORANDUM OPINION

          NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

         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 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.

         BACKGROUND[3]

         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 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 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 ...


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