Price v. Commonwealth Charter Academy – Cyber, No. 19-1590, 2020 WL 1435175,  (E.D. Pa. Mar. 24, 2020), is a somewhat unusual case for this blog in that it is not the review of an impartial hearing officer decision, but rather a decision to dismiss a lawsuit under the IDEA and Section 504 that sought to enforce the parent’s understanding of a hearing officer decision, specifically, that the private provider of compensatory educational services provide her with progress reports but not provide reports to the charter school that was contracting with the private provider to furnish the student compensatory education under the hearing officer decision. The case is of interest for impartial hearing officers because it affirms the reasonableness of having the private provider report on progress to the school district supplying the funding, and because it points at a way in which impartial hearing officers might prevent similar disputes from occurring.

The case involved a student with multiple disabilities whose local educational agency, effectively the student’s school district, was a charter school, abbreviated as CCA. The hearing officer found that CCA had denied the student an appropriate education and ordered a compensatory education award of 940 hours per year for three school years. The parent could select a third-party provider to deliver the compensatory services. CCA was to reimburse the provider for the services, and the provider would be required to provide the parent with four progress reports each year. The plan was for the student to stay enrolled in CCA but receive services from a separate private entity called Fusion Academy. After some initial dispute over how the funding would be guaranteed, CCA and Fusion worked out an agreement for payment that provided for attendance and progress reports to be sent to CCA every two weeks. The parent objected to this provision and sued for enforcement of the hearing decision, contending that the decision did not authorize the reports to CCA.

In dismissing, the court reasoned that although jurisdiction existed for a suit for hearing officer decision enforcement, a claim based on these facts could not stand. Local educational agencies are responsible for providing FAPE to enrolled students with disabilities under the IDEA, and in this instance CCA had the obligation to ensure that services provided by Fusion satisfied the student’s IEP. Moreover, the hearing officer decision called for services by a qualified provider, and CCA had to ensure that the provider was and continued to be qualified. In this case, where the private provider was furnishing all of the student’s instruction, the defendant lacked the opportunity to monitor the student on a regular basis, as it could if the instruction were merely supplementary to daily enrollment at the public charter school. The hearing officer decision specified reports to the parent, but the decision should be interpreted consistently with the IDEA and its purposes. “Without the requested reports, CCA would have no way of knowing whether T.R. was attending school, whether T.R. was improving or regressing academically and emotionally, whether certain services or methods of instruction were proving beneficial, etc. Further, without such knowledge, CCA could not ascertain whether T.R.’s IEP was being properly implemented and/or whether T.R. was receiving a FAPE, both of which CCA is legally responsible for ensuring.” Id. at *6. The court also dismissed a Section 504 retaliation claim based on the same facts.

The importance of this case lies in two things. First, it reminds impartial hearing officers that student progress reporting from private providers of compensatory services to school districts obligated to pay for the services is reasonable and consistent with the requirements that the IDEA imposes on the school districts. Second, without directly stating so, it suggests that disputes of the kind that engendered the suit can be avoided if the impartial hearing officer includes reporting to both the district and the parent as part of the award of compensatory education. Doing so provides a useful mechanism to ensure that the services are delivered properly, that the district and private provider can coordinate the services each is providing and prevents anyone from claiming that the hearing officer decision has not been implemented because an agreement for funding the services is conditioned on the reporting.