IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Z.Z., by and through her mother E.Z., : 

Petitioner : 

: 

v. : No. 311 C.D. 2016

: Submitted: July 22, 2016

Pittsburgh Public School District, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: November 30, 2016

Z.Z. (Student), by and through her mother E.Z. (Parent), petitions this 

Court for review of the January 30, 2016 order of the Special Education Hearing 

Officer (Hearing Officer) for the Pennsylvania Department of Education, Office of 

Dispute Resolution, concluding that the Pittsburgh Public School District (District) 

did not violate the Individuals with Disabilities Education Act (IDEA)1by delaying 

development of a final Individualized Education Plan (IEP)2for Student and offer 

 

1

20 U.S.C. §§ 1401–1487. 

2

The IDEA defines an IEP as “a written statement for each child with a disability that is 

developed, reviewed, and revised in accordance with,” the mandates of Section 1414(d) of 

IDEA. 20 U.S.C. § 1401; see also 20 U.S.C. § 1414(d) (providing for evaluations, eligibility 

determinations, IEPs, and educational placements). The Pennsylvania Department of 

Education’s implementing regulations define an “IEP” as “a written plan for the provision of 

appropriate early intervention services to an eligible young child, including services to enable the 

family to enhance the young child’s development. The IEP shall be based on and be responsive 

to the results of the evaluation.” 22 Pa. Code § 14.154(a).
2

of a Free Appropriate Public Education (FAPE).3 For the reasons that follow, we 

affirm.

Pursuant to the IDEA, a local education agency (LEA) receiving 

federal funds must provide a student with a disability that gives rise to special 

education needs a FAPE based on that student’s unique needs. 20 U.S.C. §§ 

1400(d)(1)(A), 1412(a)(1); 22 Pa.Code § 14.102; Winkelman ex rel. Winkelman v. 

Parma City School District, 550 U.S. 516, 520 (2007); Big Beaver Falls Area 

School District v. Jackson, 615 A.2d 910, 911–12 (Pa. Cmwlth. 1992). In order to 

ensure that a qualifying student is receiving a FAPE, a LEA must design and 

implement an individualized instruction plan set forth in an IEP, “which must be 

reasonably calculated to enable the [student] to receive meaningful educational 

benefits in light of the student’s intellectual potential.” G.L. v. Ligonier Valley 

School District Authority, 802 F.3d 601, 608 (3rd Cir. 2015) (internal citations and 

quotations omitted); see also 20 U.S.C. §§ 1401(9), (14), 1414(d); 34 C.F.R. §§ 

300.320–300.324; 22 Pa. Code § 14.102; Big Beaver Falls Area School District,

615 A.2d at 911–12. 

If an IEP has been developed for a student and the student’s parent is 

not satisfied that the IEP meets the student’s unique educational needs, both the 

student’s parent and the LEA may seek review by filing a due process complaint 

 

3

The term ‘free appropriate public education’ means special education and related services that:

(A) have been provided at public expense, under public 

supervision and direction, and without charge; (B) meet the 

standards of the State educational agency; (C) include an 

appropriate preschool, elementary school, or secondary school 

education in the State involved; and (D) are provided in conformity 

with the [IEP] required under section 1414(d) of [IDEA].

20 U.S.C. § 1401(9); see also 20 U.S.C. §§ 1401(26) (defining related services) & (29) (defining 

special education); 20 U.S.C. § 1400(d) (purposes of IDEA).
3

and requesting an impartial due process hearing.

4

 20 U.S.C. § 1415(f); 22 Pa.Code 

§ 14.162(b). If a hearing officer finds that the LEA failed to provide a FAPE for a 

student and that failure to provide a FAPE caused substantive harm to the student,

the harm may be remedied by an award of compensatory education in an amount 

reasonably calculated to put the student in the position the student would have been 

if the district had met its obligation to provide a FAPE. B.C. v. Penn Manor 

School District, 906 A.2d 642, 650-51 (Pa. Cmwlth. 2006); Stroudsburg Area 

School District v. Jared M., 712 A.2d 807, 809 (Pa. Cmwlth. 1998). Substantive 

harm occurs where a LEA’s procedural violations of the IDEA: (i) impeded the 

student’s right to a FAPE; (ii) significantly impeded the parent’s opportunity to 

participate in the decision making process regarding the provision of a FAPE to the 

student; or (iii) caused a deprivation of educational benefits. 20 U.S.C. § 

1415(f)(3)(E)(ii).

Parent filed a due process complaint against the District, as the LEA 

responsible for providing educational services to Student, on May 28, 2015

alleging that the District failed to provide Student with a FAPE in violation of the 

IDEA and seeking, among other remedies, compensatory education and placement 

at Western Pennsylvania School for the Deaf (WPSD). On June 6, 2015, the 

District responded to Parent’s due process complaint alleging that its attempts to 

comply with the IDEA and provide Student with a FAPE were frustrated by Parent 

and requesting that Parent be ordered to consent to an evaluation of Student and 

engage with the IEP team in developing an appropriate IEP for Student. Following 

 

4

 Prior to the due process hearing being held the parties must participate in a resolution session, 

or waive or agree to end a resolution session. 20 U.S.C. § 1415(f)(1)(B)(i); 22 Pa.Code § 

14.162(q). The parties may also agree to participate in a mediation process. 20 U.S.C. § 1415(e), 

(f).
4

multiple hearings and an interim decision limiting the scope of Parent’s claim to 

the 2014-15 school year, the Hearing Officer issued a well-reasoned, thorough 

decision on January 30, 2016 containing findings of fact and conclusions of law. 

In accordance with the decision, the Hearing Officer issued the following January 

30, 2016 order:

1. The District did not propose a final offer of FAPE for 

Student, and did not make a placement decision.

2. The District did not delay development of a final IEP 

for or offer of FAPE to Student.

3. Within ten calendar days of the date of this Order, the 

District shall invite [Parent] to an IEP meeting to be held 

within thirty calendar days of the date of this Order to 

discuss and develop a new IEP and, once finalized, to 

determine a placement. In that invitation, the District 

shall offer to [Parent] no less than three meeting dates 

within those thirty calendar days to convene the meeting 

of Student’s IEP team.

4. Should [Parent] fail to respond to the IEP meeting 

invitation described in ¶2, or advise the District that she 

is no longer seeking to enroll Student in the District, no 

IEP meeting need be held unless and until [Parent] elects 

to seek re-enrollment.

5. The District is not ordered to take any further action.

6. Nothing in this Order should be read to prevent the 

parties from mutually agreeing to alter any of its terms, 

including the scheduling of an IEP meeting at a mutually 

convenient time.

It is FURTHER ORDERED that any claims not 

specifically addressed by this decision and order are 

denied and dismissed.
5

(Hearing Officer’s January 30, 2016 Order.) Parent appealed to this Court for 

review of the Hearing Officer’s order.5

Before this Court, Parent argues that the District violated the 

procedural mandates of the IDEA by failing to make a timely offer of FAPE to 

Student and that this procedural violation caused substantive harm to Student 

warranting the remedy of compensatory education. The District contends that 

Parent’s argument is based on an erroneous interpretation of the IDEA and its 

implementing regulations governing the timeliness for development and offer of an 

IEP and that Student did not suffer substantive harm for which the remedy of 

compensatory education would be warranted.

The federal implementing regulations for the IDEA mandate that each 

LEA ensure that a “meeting to develop an IEP for a [student] is conducted within 

30 days of a determination that the [student] needs special education and related 

services,” and that as “soon as possible following development of the IEP, special 

education and related services are made available to the [student] in accordance 

with the [student’s] IEP.” 34 C.F.R. § 300.323(c)(1) & (2).

In the instant matter, the Hearing Officer found that the District’s 

obligation to hold a meeting to develop an IEP for Student was triggered in 

November 2014, when a District Supervisor of Special Education received an 

enrollment packet for Student for WPSD and an Application for Educational 

Assignment for Approved Public School.6 (Hearing Officer Op., Findings of Fact 

 

5 Our review of a Hearing Officer’s Decision and Order is limited to a determination of whether 

constitutional rights were violated, whether errors of law were committed, and whether the 

decision is supported by substantial evidence. 2 Pa. C.S. § 704; A.S. v. Office for Dispute 

Resolution (Quakertown Community School District), 88 A.3d 256, 261 n.5 (Pa. Cmwlth. 2014).

6

The Hearing Officer’s decision contains 54 findings of fact. The Pennsylvania Department of 

Education’s implementing regulations for the IDEA provide that a Hearing Officer’s decision 
6

(F.F.) ¶16.) Following receipt of the enrollment packet for WPSD and the 

Application, contact between the District and Parent commenced, and the District 

began collecting information about Student from WPSD, Student’s current private 

school, and Student’s previous education within the District. (Id. ¶¶16-17.) The 

District sent an invitation to Parent to participate in an IEP meeting in late 

November, which was not held, and again sought to meet with Parent on December 

30, 2014, which also did not occur. (Id. ¶¶18, 25.) Although a formal IEP meeting 

did not take place, the District met with Parent at WPSD on December 2, 2014 and 

the District and Parent continued to hold discussions and exchange information 

throughout November and December. (Id. ¶¶17, 19-24.) Student continued 

enrollment in her current private school, and was not enrolled at WPSD or a school 

within the District during the remainder of the 2014-15 school year. (Id. ¶24.)

An IEP meeting was finally held in May 2015. (Id. ¶26.) The Draft 

IEP presented at the May 2015 meeting was based upon the document created for 

the December 2014 meeting. (Id.) At the May 2015 meeting, Parent informed the 

 

shall include findings of fact and specify that “[a]lthough technical rules of evidence will not be 

followed, the decision shall be based solely upon the substantial evidence presented at the 

hearing.” 22 Pa. Code § 14.162(f). Substantial evidence is defined as “such relevant evidence as 

a reasonable mind might accept as adequate to support a conclusion.” E.N. v. M. School District, 

928 A.2d 453, 462 (Pa. Cmwlth. 2007) (internal quotations omitted). This Court’s appellate 

review requires it to review the record and ensure that the findings of fact made by the Hearing 

Officer are supported by substantial evidence; it is not this Court’s function to reweigh the 

evidence, and where our review determines that the findings made by the Hearing Officer are 

supported by substantial evidence, this Court is bound by those findings. Id. at 464. Parent’s 

brief offers a lengthy recitation of the factual background giving rise to Parent’s appeal, with 

citations to the record; however, Parent does not argue that the Hearing Officer’s findings of fact 

are unsupported by substantial evidence. Our review of the record has led inexorably to the 

conclusion that the findings of fact made by the Hearing Officer have the support of substantial 

record evidence. Therefore, our review of the legal issues raised by Parent on appeal is bound by 

the factual findings made by the Hearing Officer.
7

District that Student had recently been diagnosed with diabetes and that Student 

had undergone additional evaluations that would provide the District with more 

information regarding Student’s educational needs; the District also sought consent 

to conduct its own evaluation of Student. (Id. ¶27.) The Draft IEP presented at the 

May 2015 meeting included placement in Student’s neighborhood school, although 

it was understood that the District’s proposed placement was the District Middle 

School and that Parent’s proposed placement was WPSD. (Id. ¶33.) The IEP team 

did not finish reviewing the Draft IEP at the May 2015 meeting and no decision on 

placement was made at the meeting. (Id. ¶¶32, 34.) Parent consented to an 

evaluation of Student at the May 2015 meeting and agreed to provide written input 

following the May 2015 meeting; however, Parent did not provide the IEP team 

with written input and qualified her consent for evaluation during the summer, as 

Student had been repeatedly evaluated and assessed throughout the year and was 

feeling the effects of her physical illness, and Student became unavailable for a 

period of time due to a death in the family. (Id. ¶¶32, 37, 54.) Following 

unsuccessful attempts to schedule an evaluation of Student in July and August 

2015, the District was able to evaluate Student in the fall of 2015 and the District 

psychologist conducted an assessment of Student in November 2015, although this

assessment was not completed prior to the final due process hearing. (Id. ¶54.) 

For the first half of the 2015-16 school year, Student continued enrollment at the 

private school she had been attending during the 2014-15 school year. (Id. ¶53.)

In addition to the enumerated findings of fact, the Hearing Officer 

concluded that the delay in holding the IEP meeting could not be solely attributed 

to either party. (Hearing Officer Op., Discussion at 16.) However, the Hearing 

Officer concluded that the “evidence overwhelmingly establishes that the parties 
8

left the May 2015 meeting with the understanding that the Parent would provide 

input for and respond to the draft IEP, and that was not done.” (Id.) Therefore, the 

Hearing Officer ultimately concluded:

This was not a circumstance where the parties had 

reached an impasse such that the draft IEP should be 

considered the District’s final proposal; nor does the 

record demonstrate that the District was requiring the 

Parent to continue negotiations indefinitely. There was 

one draft IEP, one IEP meeting, and a reasonable and 

agreed expectation that the Parent would provide written 

input into that draft for consideration by the team. 

Moreover, the Parent was plainly not denied the 

opportunity to participate meaningfully in that IEP 

development process. In short, the parties had not yet 

reached the point of a District firm offer of FAPE, and 

the draft IEP simply cannot be considered such a 

proposal.

(Id. at 17.) 

The Hearing Officer’s conclusions adhere to applicable precedent 

interpreting the IDEA. The United States Supreme Court has described the 

cooperative process the IDEA establishes to guide parents and LEAs in developing 

an IEP for a student with disabilities as “the core of the statute.” Schaffer ex rel. 

Schaffer v. Weast, 546 U.S. 49, 53 (2005). The parents of a student with a 

disability have a statutory right to serve as members of the student’s IEP team; in 

developing the IEP, the IEP team must consider “the concerns of the parents for 

enhancing the education of their child”; and when decisions are made on the 

placement of a student with a disability, the IDEA mandates that “the parents of 

each child with a disability are members of any group that makes decisions on the 
9

educational placement of their child.” 20 U.S.C. §§ 1414(d)(1)(B), (d)(3)(A)(ii), 

(e). These provisions are part of a larger framework that mandates that LEAs

significantly engage parents and families in the substantive development of an IEP 

and that the states establish procedures to ensure that LEAs are in fact engaging 

parents in the development of an IEP and providing a FAPE to students with 

disabilities. See 20 U.S.C. § 1415. Ultimately, however, the IDEA is directed at 

education providers and it is LEAs, not parents that are charged with carrying out 

its mandates; as the United States Court of Appeals for the Third Circuit concluded 

in M.C. on behalf of J.C. v. Central Regional School District, 81 F.3d 389 (3rd Cir. 

1996): 

A child’s entitlement to special education should not 

depend upon the vigilance of the parents...nor be 

abridged because the [LEA’s] behavior did not rise to the 

level of slothfulness or bad faith. Rather, it is the 

responsibility of the child’s teachers, therapists, and 

administrators—and of the multi-disciplinary team that

annually evaluates the student’s progress—to ascertain 

the child’s educational needs, respond to deficiencies, 

and place him or her accordingly.

Id. at 397. In recognition of the LEA’s ultimate responsibility to develop an IEP 

and provide each student with a disability a FAPE, the regulations implementing 

the IDEA permit an IEP meeting to be held without a parent or family where the 

LEA has established a record of attempting to engage the parent or family and 

been unable to convince the parent or family to attend the IEP team meeting and 

engage in the development of the student’s IEP. See 34 C.F.R. § 300.322.

In the instant matter, we are presented with a factual scenario that 

remained uncontemplated by the statutory provisions of the IDEA and its 
10

implementing regulations; the District did seek to accommodate and include Parent 

in the development of Student’s IEP and Parent neither cooperated fully with the 

IEP process nor declined to engage in the process. The circumstances here were 

further complicated by the fact that Student was not enrolled in the District and 

therefore the District’s ability to proceed in developing Student’s IEP depended on 

Parent’s involvement to a greater degree than if Student had already been receiving 

educational services within the District. This is not to say that a LEA’s obligation 

to a student is lessened when the student is not enrolled in the district; the IDEA 

makes clear that it is a student’s residency that triggers the school district’s 

obligation and it is certainly reasonable and in accordance with the IDEA that 

parents, when possible, would not choose to enroll their disabled children as 

students within a school district without an IEP in place. James v. Upper 

Arlington City School District, 228 F.3d 764, 768 (6th Cir. 2000). However, such 

circumstances present practical challenges to a LEA’s ability to unilaterally fulfill 

its obligations under the IDEA.

In MM ex. rel. DM v. School District of Greenville County, 303 F.3d 

523 (4th Cir. 2002), the United States Court of Appeals for the Fourth Circuit held 

that the LEA was not subject to the remedy of compensatory education for the 

procedural violation of failing to have a completed and signed IEP when that 

failure was due to lack of cooperation by the student’s parents, there was no 

evidence that the parents would have accepted the FAPE offered by the LEA if it 

did not include the placement desired by parents, and the evidence showed that the 

LEA’s procedural defect did not result in any loss of educational opportunity for 

student. Id. at 533-535. An important piece of the analysis by the Fourth Circuit 

Court of Appeals in MM ex. rel. DM was the fact that the LEA was willing to offer 
11

student a FAPE and did attempt to do so. Id. at 534. This is true in the present 

matter as well; the District showed willingness to offer Student a FAPE and did 

attempt to do so, however, its attempts were thwarted by its dependence on 

Parent’s cooperation. Moreover, unlike the factual circumstances underpinning 

MM ex. rel. DM, the District here did not already have the benefit of IEPs from 

prior years and its own records of Student’s past progress and evaluations. While 

MM ex. rel. DM is not binding on this Court, it is persuasive and offers support for 

the conclusion that a LEA’s failure to complete the IEP process and make a firm

offer of FAPE is not per se determinative of whether a student has been 

substantively harmed under the IDEA and that, instead, the circumstances leading 

to the breakdown of the IEP process must be examined in full. 

We are further persuaded by Systema ex rel. Systema v. Academy 

School District No. 20, 535 F.3d 1306 (10th Cir. 2008), that an analysis of the 

circumstances leading to the breakdown in the IEP process is required to determine 

whether the failure of the District to make Student a firm offer of FAPE warrants 

compensatory education. In Systema ex rel. Systema, the United States Court of 

Appeals for the Tenth Circuit relied upon MM ex. rel. DM to conclude that the 

LEA’s failure to present parents with a final IEP did not deny student a FAPE 

because:

The hearing officer’s findings of fact indicate that the 

[parents] unilaterally terminated the IEP development 

process due to their concerns about the [LEA’s] plan to 

place [student] in an integrated classroom. The [parents]

made this decision in spite of the fact that the [LEA] had 

not yet finalized its offer for educational services. While 

we do not fault the [parents] for making a difficult 

decision regarding which educational resources they 

believed would best benefit [student], that decision 
12

precluded them from meaningfully participating in the 

complete IEP development process. Thus, we conclude 

that the lack of a final IEP did not substantively harm 

[student].

Systema ex rel. Systema, 535 F.3d at 1315; see also Hjortness ex rel. Hjortness v. 

Neehnah Joint School District, 507 F.3d 1060, 1066 (7th Cir. 2007) (“the parents’

intransigence to block an IEP that yields a result contrary to the one they seek does 

not amount to a violation of the procedural requirements of the IDEA. To hold 

otherwise would allow parents to hold school districts hostage during the IEP 

meetings until the IEP yields the placement determination they desire”).

In the instant matter, the Hearing Officer found that the delay in 

holding the initial IEP process was attributable to both parties, but that Parent’s 

actions, or inaction, prevented the IEP from being completed and the District from 

making a firm offer of FAPE. The United States Court of Appeals for the Third 

Circuit addressed a similar situation to the facts presented here in P.P. ex rel. 

Michael P. v. West Chester Area School District, 585 F.3d 727 (3rd Cir. 2009), 

where the IEP process was begun but remained uncompleted prior to the student’s 

transfer from one private school to a new private school that could better address 

the student’s needs. 

Parents in P.P. ex rel. Michael P. contacted the LEA during the 2004-

2005 school year to seek special education services for student. Id. at 731-732. At 

the time, the student was enrolled in first private school and, as in the instant 

matter, the parents’ contact with the LEA began the process of an exchange of 

information with the parents, first private school, private evaluators who had been 

retained by parents and the LEA, as well as the LEA’s request for permission to 

evaluate and test student. Id. During this period, the parents also sought out 
13

second private school and began the process to enroll the student in second private 

school, at which the student was accepted in the spring of 2005. Id. An IEP was 

completed for the student and a firm offer of FAPE was made to the student by the 

LEA prior to the start of the 2005-2006 school year; however, the IEP was 

completed and the offer of FAPE was made after the school year had begun at the 

second private school and the student had begun attending classes. Id. at 733. The

parents did not approve the IEP offered by the LEA to the student and ultimately 

filed a due process complaint alleging that there was an unlawful delay between 

their request for special education services for the student and the completion of 

the IEP process for which compensatory education and tuition reimbursement were 

appropriate remedies. Id. at 733, 737. 

The Court of Appeals for the Third Circuit concluded that the delay in 

the LEA’s evaluation of the student in P.P. ex rel. Michael P. was unfortunate but 

that it did not impact the parents’ decision to keep the student in the first private 

school and was at most a procedural violation that could not, standing alone, 

support an award of compensatory education. Id. at 738, 739; see also 20 U.S.C. § 

1415(f)(3)(E)(ii). Regarding enrollment at second private school, the Court of 

Appeals for the Third Circuit concluded that tuition reimbursement was also not 

available as a remedy for the parents because the LEA offered a FAPE and the 

parents placed the student in the second private school anyway. P.P. ex rel. 

Michael P., 585 F.3d at 739. In reaching this conclusion, the Court of Appeals for 

the Third Circuit addressed and distinguished the United States Supreme Court 

decision Forrest Grove School District v. T.A., 557 U.S. 230 (2009), where the 

Supreme Court held that tuition reimbursement for a parent’s unilateral placement 

of a student in a private school is appropriate where the district did not provide 
14

student with a FAPE. The Court of Appeals for the Third Circuit concluded that 

Forrest Grove was inapplicable to the factual situation before it in P.P. ex rel. 

Michael P. because “the [LEA] did not deny the student a FAPE and [ ] the student 

not only never received special education services from the [LEA], but was never 

enrolled in the [d]istrict in the first place.” P.P. ex rel. Michael P., 585 F.3d at 739 

n.4. 

Here, the circumstances are different from P.P. ex rel. Michael P.

because Student was not offered a FAPE; instead, the Hearing Officer concluded 

that the process stalled before a final IEP could be developed and a firm offer of a 

FAPE could be made to Student. However, the facts are similar to P.P. ex rel. 

Michael P. and distinguishable from Forrest Grove because Student was never 

enrolled in the District. Of significance, the Hearing Officer found that the 

inability to offer a FAPE was not attributable to the District, and specifically that 

the District did not delay making a final offer of a FAPE to Student or take actions

that amounted to a denial of a FAPE. Therefore, although P.P. ex rel. Michael P.

is not on all fours with the factual circumstances presented here, we do conclude 

that the facts are analogous to the delay in P.P. ex rel. Michael P. and that similar

to P.P. ex rel. Michael P., the delay in finishing the IEP process did not impact 

Parent’s decision to keep Student enrolled in first private school and did not 

amount to a substantive violation of the IDEA.

7

 

 

7

See also Great Valley School District v. Douglas M., 807 A.2d 315 (Pa. Cmwlth. 2002). In 

Great Valley, this Court held that absent a violation of the IDEA, a LEA cannot be compelled to 

assume any burden arising from an out-of-state private placement in which it did not participate, 

including burdens associated with the location. Id. at 317. In reaching this holding, we 

examined cases from other jurisdictions and concluded:

Federal courts have uniformly held that in the absence of a 

violation of the IDEA, a unilateral private placement that interferes 

with a [LEA’s] ability to evaluate a [student] imposes no burdens 
15

 

on the [LEA]. See Tucker v. Calloway County Board of Education, 

136 F.3d 495 (6th Cir.1998) (reimbursement denied to parents who 

had unilaterally placed their disabled son in a private school before 

the [LEA] was given an opportunity to develop an IEP for the 

child); Patricia P.[v. Board of Education, 203 F.3d 462, 569 (7th 

Cir. 2000) ]; Schoenfeld v. Parkway School District, 138 F.3d 379 

(8th Cir.1998) (parents who unilaterally withdrew their disabled 

child from the public school and enrolled him in a private school 

without prior notification of the [LEA] were not entitled to 

reimbursement for the cost of their son’s private education because 

the [LEA] was denied any opportunity to formulate a plan to meet 

his needs or to modify his IEP); Schwartz v. The Learning Center 

Academy, 2001 WL 311247 (W.D.Mich. 2001)(4:00–CV–42, filed 

January 17, 2001) (student not submitted to testing by personnel of 

school district’s own choosing not qualified to receive programs 

under the Rehabilitation Act [of 1973, 29 U.S.C. § 794]); L.K. v. 

Board of Education, 113 F.Supp.2d 856 (W.D.N.C. 2000) 

(unilateral withdrawal of child from public school without an 

opportunity to evaluate his needs and without an involvement of 

school officials in decision precludes tuition reimbursement); 

Catlin v. Sobol, 988 F.Supp. 85 (N.D.N.Y. 1997) (parents who 

unilaterally maintained their disabled child’s educational 

placement in one state after they moved to a different state were 

not entitled to reimbursement for the cost of the child’s education 

from their new state of residence since the [LEA] was not given an 

opportunity to develop an IEP). These cases were decided not on 

the extent of the [student’s] problems but on the extent the [LEA]

was deprived of the cooperative process preferred by the IDEA.

Unilateral private enrollment is itself a departure from the 

cooperative placement process, and out-of-state unilateral 

enrollment is a greater departure.

Great Valley, 807 A.2d at 321. While the circumstances in the instant matter do not involve outof-state placement, the principle at work in Great Valley is equally applicable here; courts across 

jurisdictions have concluded that, absent a violation of the IDEA, a parent’s decision to 

unilaterally place a disabled student in private school without providing the LEA a fair 

opportunity to evaluate the student precludes an award of compensatory education. Compare

Florence County School District Four v. Carter, 510 U.S. 7 (1993) (Parents who “unilaterally 

change their child’s placement during the pendency of review proceedings, without the consent 

of state or local school officials, do so at their own financial risk. They are entitled to 

reimbursement only if a federal court concludes both that the public placement violated IDEA 

and that the private school placement was proper under the [IDEA].”) (internal citation and 

quotations omitted). 
16

Based on the facts found by the Hearing Officer, we hold that the 

circumstances in the instant matter amount to at most a procedural violation by the 

District that, standing alone, did not constitute substantive harm to Student which 

would warrant the remedy of compensatory education. The record here does not 

support the conclusion that the District impeded Student’s right to a FAPE or 

Parent’s opportunity to participate in the decision-making process regarding the 

provision of a FAPE, and the record is devoid of evidence that the District caused 

Student a deprivation of educational benefits. Our holding is limited to the factual 

circumstances presented in the instant matter and rooted in our conclusion that a 

LEA’s failure to complete the IEP process and make a firm offer of a FAPE is not 

per se determinative of whether a student has been substantively harmed under the 

IDEA; rather, to determine whether a student has been substantively harmed by a 

LEA’s failure to adhere to the procedural timeline for developing an IEP and 

making a firm offer of a FAPE, we must examine in full the unique factual 

circumstances of each case. 

Accordingly, we affirm the Hearing Officer’s order. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Z.Z., by and through her mother E.Z., : 

Petitioner : 

: 

v. : No. 311 C.D. 2016

: 

Pittsburgh Public School District, :

Respondent :

ORDER

AND NOW, this 30th day of November, 2016, the order of the Special 

Education Hearing Officer for the Pennsylvania Department of Education, Office 

of Dispute Resolution in the above captioned matter is AFFIRMED. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge