Opinion
No. 2041 C.D. 2011
05-10-2012
Pennsbury School District, Petitioner v. C. E., a Minor, by and through His Parents and Natural Guardians, R. E. and J. E., Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is before us on a petition for review filed by Pennsbury School District (School District) from a Decision and Order of a Department of Education Special Education Hearing Officer, finding that student C.E. (Student) was denied a free appropriate public education under the Individuals with Disabilities Education Act (IDEA), and awarding compensatory education and 80% reimbursement of Student's private school tuition and transportation. We affirm.
20 U.S.C. §§ 1400 - 1482.
Student resides in the School District and is currently in the fifth grade. (Record Item (R. Item) 2, Hearing Officer Decision and Order at 2, Reproduced Record (R.R.) at 679a; R. Item 7, Due Process Hearing Notes of Testimony (N.T.) at 41, R.R. at 382a.) Student attended a School District elementary school from school year 2006-2007 through school year 2008-2009, from kindergarten through the end of second grade. (R. Item 2, Hearing Officer Findings of Fact (F.F.) ¶¶1, 3, R.R. at 680a; R. Item 7, N.T. at 41-42, R.R. at 382a.)
In kindergarten, Student's mother requested that the School District evaluate him for speech articulation problems. (R. Item 2, F.F. ¶2, R.R. at 680a; R. Item 7, N.T. at 42-43, R.R. at 382a.) The School District determined that Student had a speech and language impairment and in January 2007 developed an individualized education program (IEP) under which he received speech therapy to address that impairment. (R. Item 2, F.F. ¶2, R.R. at 680a; R. Item 7, N.T. at 42-45, R.R. at 382a-383a; R. Item 8, Exhibit P-2, R.R. at 122a-132a.) Although the only services set forth in this IEP were speech therapy, Student's mother also advised the kindergarten teacher that she had concerns about his reading and writing and the School District provided Student an extra half-hour to forty-five minutes a day of instruction from February through June 2007. (R. Item 7, N.T. at 42-46, 85-86, R.R. at 382a-383a, 393a.)
In first grade, Student had problems with reading and writing and with paying attention in class. (R. Item 7, N.T. at 47-49, R.R. at 383a-384a; R. Item 5, N.T. at 886-87, 972-73, R.R. at 602a, 623a.) The School District did not address any of these issues in Student's January 2008 IEP, which dealt only with the speech therapy issues in the kindergarten IEP. (R. Item 7, N.T. at 47-48, R.R. at 383a; R. Item 8, Exhibit P-3, R.R. at 133a-142a.) The School District, however, provided Student with reading support from the school's reading specialist two to three times a week and small group sessions with the instructional support teacher three to four times a week. (R. Item 7, N.T. at 48, R.R. at 383a; R. Item 5 N.T. at 681-83, 888-89, R.R. at 550a-551a, 602a.)
In second grade, Student had both significant difficulties with reading and writing and significant attention and distraction problems. (R. Item 7, N.T. at 50-52, R.R. at 384a; R. Item 6, N.T. at 403, R.R. at 477a; R. Item 5, N.T. at 893-94, R.R. at 603a-604a; R. Item 8, Exhibits P-11, P-16 and P-35, R.R. at 201a-204a, 209a-211a, 236a-238a, 254a-255a; R. Item 9, Exhibit S-11, R.R. at 78a.) Although it again did not address these issues in his annual January 2009 IEP, the School District provided Student throughout second grade with support from the school's reading specialist, the school's instructional support teacher and a parent tutor. (R. Item 7, N.T. at 50-51, 189-90, R.R. at 384a, 419a; R. Item 6, N.T. at 393, 399-02, 415-16, R.R. at 474a, 476a, 480a; R. Item 5, N.T. at 687-88, 890-92, R.R. at 552a, 603a; R. Item 8, Exhibits P-4 and P-35, R.R. at 143a-155a, 254a-257a.) Student's classroom teacher and the instructional support teacher also implemented a number of strategies to attempt to deal with Student's inattention and distraction, including preferential seating, repetition of instructions, redirecting behavior, pre-teaching and re-teaching, and small group instruction. (R. Item 6, N.T. at 403-05, R.R. at 477a; R. Item 5, N.T. at 708-09, R.R. at 557a; R. Item 8, Exhibits P-11 and P-35, R.R. at 210a-211a, 254a, 257a.) Despite the additional instruction and these steps to help him focus, Student continued to have deficiencies in his reading and writing skills and difficulty focusing and staying on task in class. (R. Item 7, N.T. at 176-77, R.R. at 415a-416a; R. Item 8, Exhibits P-11 and P-16, R.R. at 201a-204a, 209a-211a, 236a-238a.)
In March 2009, Student's parents became concerned after receiving his Iowa Tests of Basic Skills results and requested that the School District re-evaluate Student. (R. Item 2, F.F. ¶5, R.R. at 681a; R. Item 7, N.T. at 53-55, R.R. at 385a; R. Item 8, Exhibit P-10, R.R. at 197a-198a.) The School District conducted a re-evaluation of Student from March 2009 through early May 2009, including additional achievement testing, cognitive assessments, classroom observation and reports from teachers. (R. Item 2, F.F. ¶¶6-7, R.R. at 681a; R. Item 8, Exhibit P-11, R.R. at 199a-214a.) This testing showed that while Student's overall intelligence was at the 88th percentile, in the High Average range, achievement test results placed his reading skills at the 30th percentile and his writing skills at the 16th percentile. (R. Item 8, Exhibit P-11, R.R. at 203a-204a, 212a, 214a.) Reports from teachers and classroom observation documented that Student had substantial difficulty paying attention, staying on task in class and functioning at a second grade level. (R. Item 2, F.F. ¶¶9-13, R.R. at 681a-683a; R. Item 8, Exhibit P-11, R.R. at 201a-202a, 209a-214a.)
The School District issued its re-evaluation report on May 14, 2009. (R. Item 2, F.F. ¶7, R.R. at 681a; R. Item 8, Exhibit P-11, R.R. at 199a-216a.) The School District concluded in its re-evaluation report that Student had a specific learning disability with respect to reading and writing, noting that in the reading skill of decoding and writing, Student "fell well below expectations given his overall intelligence." (R. Item 2, F.F. ¶8, R.R. 681a; R. Item 8, Exhibit P-11, R.R. at 214a.) The School District further concluded in its re-evaluation report that Student's behavior seriously and adversely affected his ability to learn, stating that "[Student's] inattention appears to be the primary impediment to his overall academic success" and that "[r]egardless of the academic instruction that is presented, [Student] will likely experience difficulty due to his level of distractibility." (R. Item 2, F.F. ¶14, R.R. at 684a; R. Item 8, Exhibit P-11, R.R. at 214a.)
Following its re-evaluation report, the School District developed a new IEP for Student in June 2009 for third grade. (R. Item 2, F.F. ¶15, R.R. 684a; R. Item 8, Exhibit P-5, R.R. 156a-169a.) Student's parents initially approved the June 2009 IEP, but became concerned during the summer that it was not sufficient. (R. Item 2, F.F. ¶¶19-20, R.R. at 685a; R. Item R. 9, Exhibit S-28, R.R. 90a-93a; R. Item 7, N.T. at 60-62, R.R. at 386a-387a.)
On August 17, 2009, Student's parents sent the School District a letter rejecting the June 2009 IEP and notifying the School District that they believed that it did not adequately address Student's attention and literacy problems, that they were enrolling Student in the Lewis School, a private school for students with disabilities, and that they intended to seek reimbursement for that private placement. (R. Item 2, F.F. ¶20, R.R. at 685a; R. Item 8, Exhibit P-7, R.R. at 184a.) The School District, in response, provided a revised IEP in September 2009. (R. Item 2, F.F. ¶21, R.R. at 685a; R. Item 8, Exhibit P-6, R.R. at 170a-183a.) Student's parents rejected the revised IEP and advised the School District that they intended to seek compensatory education and reimbursement for the private placement. (R. Item 2, F.F. ¶23, R.R. at 686a; R. Item 8, Exhibit P-8, R.R. at 185a-189a.)
Student attended third grade and fourth grade at the Lewis School in school years 2009-2010 and 2010-2011 and is enrolled in fifth grade at the Lewis School for the current, 2011-2012 school year. (R. Item 7, N.T. at 41, 71, 79, 131-32, R.R. at 382a, 389a, 391a, 404a.) On May 18, 2011, Student's parents filed a due process complaint seeking compensatory education and tuition reimbursement. (R. Item 2, F.F. ¶25, R.R. at 686a; R. Item 10, Due Process Complaint, R.R. at 1a-5a.)
The Hearing Officer held three days of hearings on this due process complaint in August 2011. On September 27, 2011, the Hearing Officer issued a Decision and Order finding that the School District had denied Student a free appropriate public education under IDEA. (R. Item 2, Hearing Officer Decision and Order at 10-11, R.R. at 687a-688a.) The Hearing Officer found that the School District's 2009 IEPs were not appropriate because they failed to address Student's attention and distraction problems that were impeding his learning. (R. Item 2, Hearing Officer Decision and Order at 10-14 and F.F. ¶¶15-18, 21-22, R.R. at 684a-691a.) The Hearing Officer also found that the Lewis School was an appropriate placement that addressed Student's needs. (R. Item 2, Hearing Officer Decision and Order at 14 and F.F. ¶29, R.R. at 686a, 691a.) The Hearing Officer awarded Student compensatory education of one hour per day for the period from May 18, 2009 to the end of the 2008-2009 school year and awarded Student's parents 80% reimbursement of tuition and transportation for Student's private school attendance in the 2009-2010, 2010-2011, and 2011-2012 school years. (R. Item 2, Hearing Officer Decision and Order at 10-17, R.R. at 687a-694a.) The School District timely filed a petition for review appealing the Hearing Officer's Decision and Order to this Court.
Our review of the Hearing Officer's Decision and Order is limited to a determination of whether constitutional rights were violated, errors of law were committed, or the decision is supported by substantial evidence. 2 Pa. C.S. § 704; Lower Merion School District v. Doe, 878 A.2d 925, 927 n.4 (Pa. Cmwlth. 2005), aff'd, 593 Pa. 437, 931 A.2d 640 (2007); Big Beaver Falls Area School District v. Jackson, 615 A.2d 910, 913 n.8 (Pa. Cmwlth. 1992).
Under IDEA, as implemented by the Pennsylvania Department of Education's regulations, the School District must provide Student, a child with a disability, a free appropriate public education based on his unique needs. Big Beaver Falls Area School District v. Jackson, 615 A.2d 910, 911-12 (Pa. Cmwlth. 1992); 20 U.S.C. §§ 1400(d), 1412(a)(1); 22 Pa. Code §§ 14.101, 14.102. To satisfy this obligation to provide a free appropriate public education, the School District was required to develop an IEP to address and meet Student's educational needs that result from his disabilities. Big Beaver Falls Area School District, 615 A.2d at 911-12; 20 U.S.C. §§ 1401(9), (14), 1414(d); 34 C.F.R. §§ 300.320-300.324; 22 Pa. Code § 14.102; see also School Committee of Town of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 367-68 (1985).
An IEP is not appropriate and does not satisfy a school district's obligation to provide a free appropriate public education unless it is reasonably calculated to enable the student to receive meaningful educational benefit. Board of Education v. Rowley, 458 U.S. 176, 192 (1982); Daniel G. v. Delaware Valley School District, 813 A.2d 36, 41 (Pa. Cmwlth. 2002); Big Beaver Falls Area School District, 615 A.2d at 914. An IEP may be found inappropriate, even though it provides specialized academic support, if it fails to adequately address the student's behavior issues that affect his or her ability to learn. Cumberland Valley School District v. Lynn T., 725 A.2d 215, 218-19 (Pa. Cmwlth. 1999) (en banc); Stroudsburg Area School District v. Jared M., 712 A.2d 807, 810 (Pa. Cmwlth. 1998); Big Beaver Falls Area School District, 615 A.2d at 913-15.
Where a school district fails to provide an appropriate IEP for a student, the student may be awarded compensatory education in an amount reasonably calculated to put the student in the position he or she would have occupied if the school district had met its obligation to provide a free and appropriate public education. B.C. v. Penn Manor School District, 906 A.2d 642, 650-51 (Pa. Cmwlth. 2006); Stroudsburg Area School District, 712 A.2d at 809; Punxsutawney Area School District v. Kanouff, 663 A.2d 831, 836 (Pa. Cmwlth. 1995); Big Beaver Falls Area School District, 615 A.2d at 915.
Usually, a student's IEP provides for education in a public school or in a private school selected by the school district and the student's parents in collaboration. Florence County School District Four v. Carter, 510 U.S. 7, 12 (1993); Great Valley School District v. Douglas M., 807 A.2d 315, 319 (Pa. Cmwlth. 2002). "Congress intended that IDEA's promise of a free appropriate public education' for disabled children would normally be met by an IEP's provision for education in the regular public schools or in private schools chosen jointly by school officials and parents." Florence County School District Four v. Carter, 510 U.S. at 12. Where the school district and parents do not agree, however, and the parents unilaterally place the student in a private school, the school district may be ordered to reimburse the student's parents for private school tuition and expenses, if the school district failed to provide an appropriate IEP and the private school is an appropriate educational placement for the student. Florence County School District Four v. Carter, 510 U.S. at 12, 15-16; School Committee of Burlington, 471 U.S. at 369-72; Great Valley School District, 807 A.2d at 319; Stroudsburg Area School District, 712 A.2d at 809; Punxsutawney Area School District, 663 A.2d at 836; see also 34 C.F.R. §300.148; 22 Pa. Code §14.102.
The School District argues the Hearing Officer erred in finding that its June 2009 and September 2009 IEPs for Student were not appropriate and in finding that the Lewis School was an appropriate placement for Student. Whether an IEP or placement for a student is appropriate is a question of fact. P.P. v. West Chester Area School District, 585 F.3d 727, 735 (3d Cir. 2009); S.H. v. State-Operated School District of the City of Newark, 336 F.3d 260, 271 (3d Cir. 2003). We conclude that the Hearing Officer's findings on both of these issues are supported by substantial evidence.
The School District also requests, in the event that this Court were to reverse the Hearing Officer, reimbursement from Student's parents of Lewis School tuition payments it has made under 20 U.S.C. § 1415(j) subsequent to the Hearing Officer's decision. (Petitioners' Br. at 26-27.) In light of our disposition of this appeal, that argument is moot. In any event, however, it has been waived. Under Rule 2116 of the Rules of Appellate Procedure, "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Pa. R.A.P. 2116(a). The School District stated the only issues that it raises on appeal as: 1) "Whether the Hearing Officer erred in finding that the District did not provide [Student] with a free, appropriate, public education ("FAPE") during the 2008-2009 school year, and failed to offer FAPE for the 2009-2010, 2010-2011 and 2011-2012 school years?" and 2) "Whether the Hearing Officer erred in awarding [Student] compensatory education for the period from May 18, 2009 through the commencement of the 2009-2010 school year, and awarding the student's parents 80% of private school tuition reimbursement for the 2009-2010, 2010-2011 and 2011-2012 school years?" (Petitioners' Br. at 4.) The issue of reimbursement of interim payments is a distinct question and request for relief not fairly suggested by either of these two issues.
The evidence before the Hearing Officer amply supports his finding that the School District's June 2009 and September 2009 IEPs were not appropriate to Student's educational needs. In developing the IEP, the School District was required to make a determination whether "the student exhibit[s] behaviors that impede his/her learning or that of others" and, if so, was required to perform a functional behavior assessment and develop a behavior support plan to address those problems. (R. Item 8, Exhibits P-5 and P-6, R.R. at 158a, 172a; R. Item 6, N.T. at 656, R.R. at 540a) (emphasis added). The School District psychologist testified at the due process hearing that if a student's behavior impedes his or her own learning, "[w]e would have to conduct an FBA [functional behavior assessment] and develop a behavior plan, yes." (R. Item 6, N.T. at 656, R.R. at 540a).
In both the June 2009 IEP and the September 2009 IEP, the School District answered "No" to the question whether Student's behavior impeded Student's learning, despite its own conclusion in its May 2009 re-evaluation report that Student's inattention and distractibility were "the primary impediment" to his ability to learn. (R. Item 8, Exhibits P-5, P-6, and P-11, R.R. at 158a, 172a, 214a; R. Item 7, N.T. at 161-66, R.R. at 412a-413a.) Although Student's parents submitted expert testimony that Student's attention and distractibility problems should have been addressed through a functional behavior assessment and behavior support plan (R. Item 8, Exhibit P-56, R.R. at 348a; R. Item 7, N.T. at 272-74, R.R. at 439a-440a), the School District did not perform any functional behavior assessment of Student and neither the June 2009 IEP nor the September 2009 IEP provided a behavior support plan for Student. (R. Item 7, N.T. at 164-65, R.R. at 412a-413a.)
The School District claims that a functional behavior assessment and behavior support plan were not necessary because the IEPs included provisions directed at Student's attention problems and because, it contends, Student was making progress in school. There was substantial evidence to the contrary, however, from which the Hearing Officer could properly conclude both that the behavioral provisions of the IEPs were not adequate and that Student was not receiving meaningful educational benefit.
The behavior provisions of both the June 2009 IEP and September 2009 IEP consisted primarily of preferential seating, repetition of instructions, redirecting behavior, pre-teaching and re-teaching and small group instruction. (R. Item 8, Exhibits P-5 and P-6, R.R. at 165a, 179a.) The record showed that these interventions were already being used and that the IEPs, therefore, did not add material new program modifications or specially designed instruction for Student's attention problems. (R. Item 6, N.T. at 403-05, R.R. at 477a; R. Item 5, N.T. at 682-85, 708-09, 711-12, R.R. at 551a, 557a-558a; R. Item 8, Exhibits P-11 and P-35, R.R. at 210a-211a, 257a.) There was also substantial evidence that these interventions were not successful. (R. Item 7, N.T. at 176-77, R.R. at 415a-416a; R. Item 8, Exhibits P-11 and P-16, R.R. at 201a-204a, 209a-211a, 236a-238a.) Although these interventions and supports were already being used, the School District's supervisor of elementary special education admitted that, with respect to writing, Student "was not making meaningful progress." (R. Item 7, N.T. at 176, R.R. at 415a.)
The Hearing Officer's finding that the Lewis School was an appropriate placement for Student is likewise supported by substantial evidence. The evidence before the Hearing Officer included: expert testimony that the Lewis School's programming was appropriate to Student's disability and that Student had made progress in reading and writing; 2011 test scores that showed progress in reading and improvement in writing in comparison to the same test in 2009; report cards from the Lewis School that showed progress; results of tests by the School District's reading specialists that showed advances to higher grade level reading skills; and testimony of Student's parents that they have observed major improvement in Student's reading and writing at home. (R. Item 8, Exhibits P-52, P-53, P-54 and P-56, R.R. at 324a-330a, 335a-366a; R. Item 6, N.T. at 462-64, R.R. at 491a-492a; R. Item 9, Exhibit S-38, R.R. 114a; R. Item 7, N.T. at 76-79, 125-28, R.R. at 390a-391a, 403a.) While the School District argues that Student had a lower test score in math in 2011 and that some of the improvement between 2009 and 2011 was less than two full grade levels, this did not require the Hearing Officer to disregard all of the other evidence before him that supported the conclusion that the Lewis School was an appropriate placement. Moreover, evidence introduced at the hearing explained that these facts did not indicate a lack of progress at the Lewis School. (R. Item 8, Exhibit P-56, R.R. at 359a; R. Item 6, N.T. at 464-70, R.R. at 492a-493a.)
The School District asserts that the Lewis School cannot be an appropriate placement because it is a school for students with learning disabilities and is, therefore, not a least restrictive environment where disabled students are educated together with non-disabled students. This contention is without merit. The requirements of IDEA and the IDEA regulations that disabled students be educated in the least restrictive environment apply only to actions of the state, its school districts and other public agencies. 20 U.S.C. § 1412(a)(5) (requiring that "the State has in effect policies and procedures to ensure that the State meets each of the following conditions," including least restrictive environment); 34 C.F.R. §§ 300.114-120 (requiring that "[e]ach public agency" comply with least restrictive environment regulations). The fact that a private school selected by the student's parents does not meet requirements that apply to a school district's provision of special education does not make it an inappropriate placement or bar tuition reimbursement. Florence County School District Four, 510 U.S. at 13-15; 34 C.F.R. § 300.148. Indeed, the private placements in decisions where the United States Supreme Court has upheld tuition reimbursement have been schools for students with special needs, not least restrictive environments. See Forest Grove School District v. T.A., 557 U.S. 230, 129 S. Ct. 2484, 2488 (2009); School Committee of Burlington, 471 U.S. at 362.
Because substantial evidence supports the Hearing Officer's findings that the School District did not adequately address Student's educational needs and failed to provide Student a free and appropriate education, the award of compensatory education was proper. B.C., 906 A.2d at 650-51; Stroudsburg Area School District, 712 A.2d at 809; Punxsutawney Area School District, 663 A.2d at 836; Big Beaver Falls Area School District, 615 A.2d at 915. Contrary to the School District's contention, compensatory education is not limited to extreme deprivations. In both Stroudsburg Area School District and Big Beaver Falls Area School District, this Court affirmed compensatory education awards for failure to adequately address the students' behavior issues, even though the school districts were providing IEPs that addressed the students' academic issues. Stroudsburg Area School District, 712 A.2d at 808-11; Big Beaver Falls Area School District, 615 A.2d at 914-15. Given the evidence that Student was not making meaningful progress in second grade and that the School District did not take any additional steps to address Student's learning problems for the remainder of that school year, the Hearing Officer's award of one hour of compensatory education per school day from May 18, 2009 to the end of the 2008-2009 school year was "reasonably calculated to bring [Student] to the position that he would have occupied but for the school district's failure" and must, therefore, be affirmed. B.C., 906 A.2d at 651.
Because substantial evidence supports the Hearing Officer's findings that the June 2009 and September 2009 IEPs were inappropriate and the Lewis School was a proper placement, the award of tuition reimbursement was likewise justified. Florence County School District Four, 510 U.S. at 12, 15; School Committee of Burlington, 471 U.S. at 369-72; Stroudsburg Area School District, 712 A.2d at 809-11. The School District's contention that less than 80% reimbursement should have been ordered is without merit. Whether tuition reimbursement should be reduced by equitable considerations and the amount of any such reduction are matters committed to the fact finder and decision maker's broad discretion. Florence County School District Four, 510 U.S. at 15-16; School Committee of Burlington, 471 U.S. at 369. As has been discussed above, there was substantial evidence that the IEPs that the School District offered failed to address the primary cause of Student's learning difficulties and did not provide significant additional support beyond what had already proved inadequate. The conclusion that the School District should bear the bulk of the private placement cost was, therefore, well within the Hearing Officer's discretion.
The School District also argues that 2010-2011 and 2011-2012 tuition reimbursement is barred by failure to give notice of where Student would be attending school. This argument is legally invalid. The only notice that IDEA and the IDEA regulations required that Student's parents give the School District was written notice at least ten business days "prior to the removal of the child from the public school" that advised that "they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). Student's parents gave the School District written notice that fully satisfied these requirements with respect to both of the last IEPs offered by the School District. (R. Item 2, F.F. ¶¶20, 23, R.R. at 685a-686a; R. Item 8, Exhibits P-7 and P-8, R.R. at 184a-189a.) Nothing in IDEA or the IDEA regulations required Student's parents to give any further notification as to subsequent years; the statute and regulations require notice before the student is removed from public school, not separate notices for each year for which reimbursement is sought where no new IEP has been proposed after the rejection notice. Notice with respect to subsequent years is required only if the IEP offered at the time the private placement began was appropriate and the parents, after rejection of an appropriate IEP, complain that the school district failed to provide a new IEP for a subsequent year. Michael J. v. Derry Township School District, No. 1:03-CV-1104, 2006 WL 148882 at *27 (M.D. Pa. Jan. 19, 2006). That is not the case here, as the School District's last IEP, the September 2009 IEP, was found to be inappropriate.
Because the Hearing Officer correctly applied the law and his findings are supported by substantial evidence, we affirm the Decision and Order of the Department of Education Special Education Hearing Officer in this matter.
Student and his parents request that this Court award attorneys' fees under 20 U.S.C. § 1415(i) and 34 C.F.R. § 300.517. (Respondents' Br. at 30). No request for attorneys' fees was raised in the petition for review and no cross - petition for review was filed to seek that relief. We, therefore, do not address that issue because it is not properly before us. Big Beaver Falls Area School District, 615 A.2d at 915. --------
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 10th day of May, 2012, the Decision and Order of the Department of Education Special Education Hearing Officer in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge