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decided: June 15, 1979.


Appeal from the Order of the Secretary of Education in case of In Re: the Educational Assignment of Peter, a student in the Blue Mountain School District, Special Education Appeal No. 61.


William R. Mosolino, for petitioners.

W. Alan Williams, with him Lewis & Williams and William D. Hutchinson, for respondents.

Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 43 Pa. Commw. Page 371]

George Fitz and his wife Patty (petitioners), parents of Peter Fitz, a 17-year-old hearing-impaired child, have appealed an order of the Secretary of Education (Secretary) denying approval for the educational

[ 43 Pa. Commw. Page 372]

    placement of Peter in the Pennsylvania School for the Deaf (PSD). We affirm.

In October of 1975, Peter Fitz was enrolled by petitioners in the special education classes of Intermediate Unit No. 29 (IU), which services the Blue Mountain School District (District) in which petitioners reside. On January 17, 1977, petitioners, being dissatisfied with Peter's progress at the IU, withdrew him and enrolled him in the residential program at PSD. Petitioners subsequently requested the District to approve Peter's placement at PSD and recommend tuition reimbursement, pursuant to Section 1376 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, Art. XIII, as amended, 24 P.S. § 13-1376.*fn1 After a program placement conference among

[ 43 Pa. Commw. Page 373]

    the District, petitioners, and representatives of the IU, the District declined petitioners' request, recommending Peter's continued placement at the IU.

On May 6, 1977, a hearing was held to review the District's recommendation. At the hearing, petitioner presented evidence that Peter required a total communication program*fn2 and that the District and IU were incapable of providing such a program. In addition, petitioners contended Peter should be undergoing vocational training instead of his current academic course of study. The District and IU presented testimony showing that its program was indeed a total communication program, that Peter was making progress, and that the IU was capable of preparing a satisfactory vocational program.*fn3 The District, however, was unable to provide more than a general outline as to the nature of the vocational program since the District had never been requested by petitioners to transfer Peter to such a program until after his enrollment at PSD.

The hearing examiner found that the IU provided a total communication program but that the proposed vocational program could not be evaluated until more fully developed. Therefore, she recommended the development

[ 43 Pa. Commw. Page 374]

    of a specific program for Peter, including an evaluation of the desirability of a vocational course of study, possible courses or areas of concentration, and psychological and educational testing. The program was to be presented to petitioners within a specified period for their approval. If petitioners felt the program was not appropriate, the hearing would be reconvened.

Both sides filed exceptions with the Secretary. Finding that Peter's placement at the IU was proper and that petitioners therefore were not entitled to tuition reimbursement, the Secretary dismissed all exceptions and adopted the hearing examiner's report. This appeal followed.

Petitioners contend that if there is no extant vocational program at IU No. 29 presently operational and suitable for Peter's needs, the IU placement is not appropriate and therefore petitioners should be entitled to tuition reimbursement for the cost of PSD. The issue, however, as we perceive it, is not the sufficiency of the IU's proposed vocational program but the appropriateness of the academic program Peter was enrolled in prior to his transfer to PSD. Moreover, the burden is on the petitioners to show the inappropriateness of this program. See 22 Pa. Code § 13.32(15).*fn4 This petitioners attempted to do by showing, among other things,*fn5 that the IU lacked a vocational program tailored to Peter's needs. Petitioners failed, however, to present sufficient evidence that a vocational education

[ 43 Pa. Commw. Page 375]

    was preferable to an academic education in view of Peter's specific abilities.*fn6 Without such evidence, any discussion as to the specific content of that program is premature. In addition, petitioners failed to establish that the District or IU could not provide an appropriate vocational program if given the opportunity. Indeed, petitioners' withdrawal of Peter from the IU and subsequent enrollment at PSD, before they had made known their desire for vocational training for Peter, effectively limited the District's or IU's ability to prepare an appropriate vocational program for Peter. Cf. Welsch v. Department of Education, 42 Pa. Commonwealth Ct. 41, 400 A.2d 235 (1979) (parents who enrolled their exceptional child in an out-of-state school on their own initiative were not entitled to tuition reimbursement because of their refusal to make their child available for evaluation to determine whether there is an appropriate in-state placement). Thus, the Secretary was justified in adopting the hearing examiner's report.

Petitioners also contend that the Secretary erred in making a finding on the adequacy of the IU program rather than remanding to allow the hearing examiner to make a finding on the issue. In essence, petitioner would have us consider the hearing examiner as the ultimate factfinder, with the Secretary only able to reverse if an error of law has been committed. Our reading of the Rules of Administrative Practice and Procedure, 1 Pa. Code § 31.1 et seq., applicable to the Department of Education, see 22 Pa. Code § 1.6, discloses

[ 43 Pa. Commw. Page 376]

    no authority for this position. On the contrary, the hearing examiner is only a designee of the agency head, charged with the responsibility to conduct a hearing, hear evidence, make findings, and submit a proposed report to the agency head concerning the disposition of the case. See 1 Pa. Code §§ 35.185, .187, .205. The agency head then takes the final agency action. See 1 Pa. Code § 35.226. Absent a requirement that the agency head is bound by the decision of the hearing examiner, the agency head is free to make his own determination and findings subject to review by this Court. See 2 Pa. C.S. § 704.

What we have said concerning the Secretary's authority to make findings is also dispositive of petitioners' contention that the Secretary lacked authority to modify the hearing examiner's report regarding the development of a vocational program for Peter.

Finally, petitioners contend the order of the Secretary was untimely since it was not filed within 20 days of the filing of exceptions and answers to the hearing examiner's report, in accordance with an Appeals Procedure Guide distributed by the hearing examiner to the petitioners. While 22 Pa. Code § 13.32(21) does require a hearing examiner's report to be filed within 20 days of the hearing, we are unaware of a similar regulation for the Secretary's decision either within the Department's own regulations or the Rules of Administrative Practice and Procedure. Even assuming that the Secretary did have some obligation to decide the matter within 20 days, petitioners have shown no prejudice as a result of the delay.*fn7

[ 43 Pa. Commw. Page 377]


And Now, this 15th day of June, 1979, the order of the Secretary of Education, dated August 18, 1977, denying approval of the educational placement of Peter Fitz in the Pennsylvania School for the Deaf, is hereby affirmed.



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