           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)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. § 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).
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).
                                                  2
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).

                                                 3
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.


                                         4
(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
                                              5
(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.

                                                6
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


                                         7
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


                                          8
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

                                         9
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


                                         10
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
                                        11
             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

                                         12
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


                                         13
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
                                               14
               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 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 that the private school placement was proper under the [IDEA].”) (internal citation and
quotations omitted).
                                               15
            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




                                        16
        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
