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), pet itions 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 ( Distric t ) did not violate the Individuals with Disabilities Education Act (IDEA) 1 by delaying development of a final Individualized Education Plan (IEP) 2 for 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. § 14 14(d) (providing for evaluations, eligibility determinations, IEPs, and educational placements). The Pennsylvania Department of Education’ s implementing r egulations define an “IEP” as “a written plan for the provision of appropriate early intervention ser vices to an eligible young child, including services to enable the fa mily 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 E ducation (FAPE). 3 For the reasons that follow, we
affirm

. Pursuant to the IDEA , a local education agency (LEA) receiving
federal funds must provi de 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.C ode § 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. Li gonier Valley School District Authority , 8 02 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 educ ation 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 educati on in the S tate involved; and (D) are provided in conformity with the [IEP] required under s ection 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
studen t and that failure to provide a FAPE caused substantive harm to the student , the h arm may be remedied by an award of compensatory education in an amount reasonably calculated to put the s tudent in the position the student would have been
if the district had met i ts 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) signifi cantly 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 compl aint 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 educa tion 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 P arent

a nd requesting that Parent be ordered to consent to an evaluation of Student and engage with the IEP team in developing a n appropriate IEP for S tudent. 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 Dist rict 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 me eting invitation described in ¶ 2, or advise the District that she is no longer seeking to enroll Stude nt in the District, no IEP meeting need be held unless and un til [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 Or der.) 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 comp ensatory 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 d evelopment and offer of an
IEP and that Student did not suffer substantive harm for which the remedy of

comp ensatory 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 Studen t 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. 20 14 )

.

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 decision6

(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 previou s 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.) S tudent 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 pr esented 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 tec hnical 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 acce pt 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 Heari ng 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 fin dings. 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 substantia l 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 additiona l 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 plac ement 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 Dr aft IEP at the May 2015 meeting and no decision on placeme nt 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 provid e 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, t he District was able to evaluate Student in the f all of 2015 and the District psychologist c onducted an assessment of Studen t 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 be en 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 part y. (Hearing Officer Op., Discussion at 16.) However, the Hearing
Officer concluded that the “evidence overwhelming ly establishes that the parties8

left the May 2015 meeting with the understanding that the Parent would provide input for and respond to the dr aft 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

rec ord 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 considerati on 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. T he United States Supreme Court has described the cooperative process the IDEA establishes to guide parents and LEA s i n 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). T he 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 the9

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 mandate s that LEA s significantly engage parent s and families in the substa nt ive development of an IEP
and that the states establish procedures to ensure that LEA s are in fact engaging parents in the development of an IEP and providing a FAPE to students with
disabilities

. See 20 U.S.C. § 1 415. Ultim ately, however, the IDEA is directed at education providers and it is LEA s , 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 up on the vigilance of the parents... nor b e abridged because the [LEA ’ s ] behavior did not rise to the level of slothfulness or bad faith. Rather, it is the responsibil ity of the child’ s teachers, therapists, and administrators

— and of the multi

- disciplinary team that annually evaluates the student’ s progress

— to ascertain the ch ild’ 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 f amily 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 o f 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 its10

implementing regulations ; the District did seek to accommodate and include Parent
in t he 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 an d
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 , whe n possible, would not cho o se 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 w hen that failure was due to lack of cooperation by the student’s parents, there wa s no evidence that the parents would have accepted the FA PE offered by the LEA if it did not include the placement desired by parents, and the evidence showed that the
LEA ’s procedural d efect did not result in any loss of educational opportunity for
studen t. 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 offer11

student a FAPE and did attempt to do so. Id . at 534. This is true in the present
matter as wel l; 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 d id 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 comp lete the IEP process and m ake a firm
offer of FAPE is not per se determinative of whether a student has been substantively harmed under th e IDEA and that , instead , the circumstances leading to the breakdown of the IEP process must be examined in full

.

W e 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 St ates 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] unilatera lly terminated the IEP development process due to th eir concerns about the [ LEA’s] plan to place [student] in an in tegrated classroom. The [parents] made this decision in spite of the fact that the [ LEA] had not yet finalized its offer for educational ser vices. Wh ile we do not fault the [parents] for making a difficult decision regarding which educational resources they beli eved would best benefit [student], that decision12 precluded them from meaningfully participating in the complete IEP development proce ss. 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’
i ntransigence 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 plac ement 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 b eing 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, th e parents also sought out13

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 t he 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

p arents 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 de lay between their request for special education services for the student and the completion of the IEP pro cess 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 unfort unate 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 parent s 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 provide14

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 d eny the student a FAPE and [ ] the student not only never received speci al education serv ices 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 Hea ring 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] impose s no burdens15 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 develo p 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); Schwa rtz 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 b y 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 Educ ation , 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 reimburs ement for the cost of the chil d’ 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 pref erred 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 out

of

- 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 tha t the private school pl acement 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
Dis trict that, standing alone, did not constitute substantive harm to Studen t 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 re garding the provision of a FAPE, and the record is devoid of evidence that the District caused
Stude nt 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 deter minative of whether a student has been substan tively 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 JudgeIN 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 30 th 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