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CHAD SAVKA v. COMMONWEALTH PENNSYLVANIA (07/05/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 5, 1979.

CHAD SAVKA, A MINOR, BY EDWARD SAVKA, HIS GUARDIAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, THE ALLEGHENY INTERMEDIATE UNIT AND THE DEER LAKES SCHOOL DISTRICT, RESPONDENTS

Appeal from the Order of the Secretary of Education in case of In Re: the Educational Assignment of Chad S., a student in the Deer Lakes School District, Special Education Appeal No. 88.

COUNSEL

Gerald G. DeAngelis, with him Frank P. Paz, for petitioner.

Ernest N. Helling, Assistant Attorney General, with him Patricia A. Donovan, Deputy Attorney General, Chief Counsel, and William C. Andrews, for respondents.

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

Author: Mencer

[ 44 Pa. Commw. Page 63]

Edward Savka (petitioner), on behalf of his minor son Chad, has appealed an order of the Secretary of Education (Secretary) approving the educational placement of Chad in the Allegheny Intermediate Unit (AIU) facility at Edgewood Elementary School (Edgewood). We affirm.*fn1

Chad Savka, a 7-year-old hearing-impaired child, has attended DePaul Institute's (DePaul) preschool program for exceptional children since he was 2 1/2 years of age. In May 1977, upon completion of kindergarten, Chad's records were forwarded to AIU for a determination of whether Chad could be placed at facilities

[ 44 Pa. Commw. Page 64]

    within either AIU or Deer Lakes School District (District), of which petitioner is a resident. AIU decided that its facility for the hearing-impaired at Edgewood could provide Chad an appropriate education. AIU therefore recommended that Chad be transferred to Edgewood, beginning with the 1977-78 school year. Proper notice of its recommendation was sent to petitioner.

Opposed to the transfer, petitioner requested a parents' placement conference to review AIU's decision. Unable to reach an accommodation with AIU or the District, petitioner requested a due process hearing pursuant to 22 Pa. Code § 13.32(9). See also 22 Pa. Code § 13.31. A hearing was held on October 12 and 25, 1977 before Dr. S. Robert Marziano, Assistant Executive Director of the Beaver County Intermediate Unit, the designated hearing examiner.

At the hearing, AIU presented Chad's records from DePaul, which consisted of his educational progress reports for the 1975-76 and 1976-77 school years, several audiological evaluations, a psychological evaluation dated April 1, 1977, the results of an April 25, 1977 otological examination, and a classroom report by one of Chad's teachers at DePaul, dated April 19, 1977. AIU also presented several witnesses, including the supervisor of AIU's hearing-impaired program, a master teacher of the hearing-impaired, and Chad's probable classroom instructor, who described Edgewood's program for deaf children in general and for Chad in particular. In addition, testimony was presented that Chad could readily adjust and adapt to a transfer to Edgewood. Petitioner, in turn, presented testimony concerning the appropriateness of DePaul and the potential detriment to Chad's health and welfare if he were transferred at that time.

The hearing examiner, in his report dated November 10, 1977, found that Edgewood was an appropriate

[ 44 Pa. Commw. Page 65]

    placement for Chad. Since the 1977-78 school year was well in progress, however, he recommended that Chad's transfer to Edgewood be delayed until the 1978-79 school year. The Secretary dismissed petitioner's exceptions to the report and adopted the hearing examiner's decision. Petitioner's appeal to this Court followed.

One of the goals of the Department of Education is to provide all exceptional children in the Commonwealth an appropriate educational program.*fn2 See the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, §§ 1371-1382, as amended, 24 P.S. §§ 13-1371 to 1382; 22 Pa. Code § 13.2(a). The primary responsibility for identifying all exceptional children and developing educational programs to meet their needs is placed on the local school district. See Section 1371(2) of the Code, 24 P.S. § 13-1371(2); 22 Pa. Code §§ 13.11(b), 171.13. If the school district is unable to provide an appropriate program, it is mandated to utilize the services of an intermediate unit. See 22 Pa. Code §§ 13.11(b), 171.13. In addition, approved private schools, such as DePaul, are also available as an option to the local district. See 22 Pa. Code §§ 13.11(b), .14(a), 171.13. Placement, however, in a private school will only be approved if neither the local school district nor its supporting intermediate unit can provide an appropriate education for the child in question. See Section 1372(3) of the Code, 24 P.S. § 13-1372(3); 22 Pa. Code §§ 13.11, 171.13, .16. If such a placement is approved by the Secretary, the parents of the child are eligible for tuition reimbursement pursuant to Section 1376(a) of the Code, 24 P.S.

[ 44 Pa. Commw. Page 66]

§ 13-1376(a).*fn3 See Welsch v. Department of Education, 42 Pa. Commonwealth Ct. 41, 400 A.2d 234 (1979). At issue here, therefore, is whether there is substantial evidence to support a determination that an appropriate program was available for Chad at Edgewood.

Petitioner first argues that the records received from DePaul*fn4 and introduced by AIU to support its recommendation were outdated by the time of the due process hearing and therefore could not support the Secretary's decision. Our review of the records indicates that, for the most part, they reflect evaluations completed in April 1977 and were therefore not outdated either at the time AIU made its initial determination on Chad's placement in May 1977 or at the

[ 44 Pa. Commw. Page 67]

October 1977 due process hearing. When taken in conjunction with the testimony presented by AIU describing class size, facilities, teacher certification, mainstreaming opportunities, and AIU's total communication approach to teaching the hearing-impaired,*fn5 we find there was more than sufficient evidence to support the Secretary's findings on the ability of Edgewood to provide Chad with an appropriate education.

Petitioner next argues that since 22 Pa. Code § 13.31(c)*fn6 gives a parent the right to have an annual evaluation of his child's placement, including the due process protections of 22 Pa. Code § 13.32, the Secretary had no authority to delay the date of Chad's transfer to Edgewood until the 1978-79 school year. This argument is without merit, for not only do we fail to see such a limit in the language of 22 Pa. Code § 13.31(c), but a situation might arise where the Secretary needs flexibility in formulating an order to protect the best interests of the child. Here, the Secretary, apparently in response to petitioner's own concern that

[ 44 Pa. Commw. Page 68]

    a transfer of Chad at that time might have been traumatic, delayed the transfer until the 1978-79 school year. Although the reports underlying Chad's transfer might be outdated by the time Chad is actually transferred to Edgewood, nothing prevents petitioner from exercising his annual right to an evaluation if he feels that circumstances have changed.

Finally, petitioner argues that he was denied an impartial hearing because the hearing examiner was an employee of another intermediate unit and therefore was "an ally of the opposition." Petitioner, however, failed to move at the hearing pursuant to Rules of Administrative Practice and Procedure, 1 Pa. Code § 35.186, applicable to the Department of Education, see 22 Pa. Code § 1.6, that the hearing examiner disqualify himself. Therefore, we consider this issue waived.

Order

And Now, this 5th day of July, 1979, the order of the Secretary of Education, dated March 15, 1978, approving the placement of Chad Savka in the Allegheny Intermediate Unit facility at Edgewood Elementary School, is hereby affirmed.

Disposition

Affirmed.


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