decided: May 27, 1983.
ROBERT J. MURPHY, JR., ET AL., PETITIONERS
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENT
Appeal from the Order of the Secretary of Education in the case of In Re: The Educational Assignment of Robert M., a student in the Towanda Area School District, Special Education Opinion No. 189.
Jack M. Stover, Shearer, Mette & Woodside, for petitioners.
John A. Alzamora, with him Takashi A. Bufford, Assistant Counsel, and Michael A. Davis, Chief Counsel, for respondents.
President Judge Crumlish, Jr. and Judges Blatt and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
[ 74 Pa. Commw. Page 500]
This is an appeal by Robert J. Murphy, Jr. and Ann N. Murphy (Appellants) on behalf of their learning disabled son, Robert, from the order of the Secretary of Education (Secretary) which adopted the recommendation of a hearing officer placing Robert at the Wordsworth Academy (Wordsworth), a private school located in Pennsylvania. Appellants, who argue that there does not exist, within Pennsylvania, an appropriate program of education for their son, seek placement of Robert at the Landmark School (Landmark), an out-of-state school. Appellants also seek reimbursement of tuition monies paid for Robert's education at Landmark. Following a thorough review of the record, we reverse and remand the order of the Secretary.
Robert, a resident of the Towanda Area School District (District) is an "exceptional person"*fn1 who was enrolled in the District's schools from kindergarten through seventh grade. Since the third grade, Robert had participated in the District's program for the learning disabled. Appellants, however, were disappointed with Robert's progress and therefore removed him from the District's schools. Robert spent his eighth and ninth grades at different parochial schools. Thereafter, Appellants became aware of Landmark, a school for learning disabled and multihandicapped children located in Massachusetts. Robert has been continuously enrolled at Landmark since the 1980 summer session. During the Spring of 1980, Appellants sought approval of the out-of-state placement at Landmark. Following a review by District personnel, a Notice
[ 74 Pa. Commw. Page 501]
of Recommended Assignment was issued recommending that Robert be placed at Wordsworth which is specifically approved for tuition reimbursable special education of both learning disabled and emotionally disturbed adolescents. Appellants rejected this recommendation, and requested an administrative hearing to test the validity of the District's recommendation. Following a June 2, 1981 hearing, the hearing officer rendered an interim decision on July 20, 1981 wherein he recommended that an Individualized Educational Plan*fn2 (IEP) be established for Robert. On September 10, 1981, Robert's IEP was established by a team which included Appellants and representatives of the District. Based upon this IEP, the District reiterated the original recommendation that Robert be placed at Wordsworth. On October 5, 1981, the hearing officer issued a final decision which supported the
[ 74 Pa. Commw. Page 502]
recommended placement of Robert at Wordsworth. Appellants filed timely exceptions to the hearing officer's initial and final reports. On January 20, 1982, the Secretary entered an order dismissing Appellants' exceptions and adopting the recommended order of the hearing officer. Appeal to this Court followed.
We must affirm the order of the Secretary unless a violation of constitutional rights has occurred, an error of law has been committed, or the findings of fact are not supported by substantial evidence. West Chester Area School District v. Secretary of Education, 43 Pa. Commonwealth Ct. 14, 401 A.2d 610 (1979).
All handicapped school-aged persons are entitled to an appropriate program of education or training. 22 Pa. Code § 13.11(a). An "appropriate program" is defined as:
A program of education or training for exceptional school-aged persons which meets their individual needs as agreed to by a parent, school district, or intermediate unit personnel; or as ordered by a hearing officer; or upon appeal as ordered by the Secretary of Education. (Emphasis added.)
22 Pa. Code § 13.1. We find that the conclusion that Wordsworth can provide an appropriate program of education for Robert is not supported by substantial evidence.
Following the June 2nd hearing, the hearing officer concluded that a finding concerning the appropriateness of an educational program could not be made due to the absence of an IEP for Robert. The hearing officer commented that a recommended placement only has meaning when viewed from the perspective of the IEP. In fact, the testimony reveals that Wordsworth was recommended not because it met Robert's individual needs, but rather because it was the only school with a residential component that would consider Robert.*fn3
[ 74 Pa. Commw. Page 503]
After Robert's IEP had been developed, the District again recommended placement at Wordsworth, and Appellants again rejected this recommendation. By agreement, the hearing was not reconvened. Instead, the hearing officer was asked to make a final disposition based upon the prior testimony and the introduction of four additional documents. The hearing officer concluded that Wordsworth could provide an appropriate educational program.
Since the prior testimony was insufficient to support a finding concerning the appropriateness of the educational program, the conclusion regarding the Wordsworth program must be based upon the four additional documents received by the hearing officer. These documents include: Robert's IEP, a letter from the Appellants, a letter from the Educational Director at Wordsworth, and a memorandum from the District's Superintendent. The IEP, as a neutral document describing Robert's situation and goals, cannot support any particular program. Secondly, Appellants' letter rejects placement of Robert at Wordsworth. Therefore, the only information which tended to support the hearing officer's conclusion was contained in the letter from Michael J. Curcio, the Educational Director at Wordsworth, dated September 17, 1981, and in the memorandum from Thomas Holland, Superintendent of the District, dated September 22, 1981. Mr. Curcio stated: "This letter is to indicate that Wordsworth Academy would be able to implement the I.E.P. for Robert Murphy which we reviewed together on Tuesday, 9/15/81." This bare statement is the only evidence which supports the hearing officer's decision. The memorandum from Superintendent Holland states that two members of Robert's IEP team visited
[ 74 Pa. Commw. Page 504]
Wordsworth, but it does not contain any independent statement, observation, or conclusion or recommendation of these District personnel regarding the ability of Wordsworth to implement the IEP. Certainly, the professional educators who helped develop Robert's IEP and visited Wordsworth should have been able to offer their opinion concerning the appropriateness of the Wordsworth program. Instead, the Superintendent's memorandum merely expresses the conclusion of Mr. Curcio that "Wordsworth Academy has indicated that they can implement the IEP as developed."
[ 74 Pa. Commw. Page 505]
hearing officer's findings. Finally, in Shanberg v. Secretary of Education, 57 Pa. Commonwealth Ct. 384, 426 A.2d 232 (1981), the findings were supported by the testimony of various professional personnel. In the case at bar, Mr. Curcio's one sentence assertion is the only evidence correlating Robert's IEP with the Wordsworth program. Standing alone, this evidence is inadequate to support the conclusion reached by the Secretary.
Appellants also argue that their due process rights were violated when the hearing officer considered an ex parte communication in reaching the recommendation which became the subject of the Secretary's order. In what became his final decision, the hearing officer states:
Additional Information Requested :
In order to clarify specific admission procedures, this Hearing Officer contacted Mr. Curcio at Wordsworth by phone. Mr. Curcio, from reviewing existing information, was confident that the IEP will be able to be implemented. There are, however, further steps to be taken prior to an actual admission. . . .
We agree that Appellant's rights were violated. "Due process requires that cross-examination be afforded in administrative agency hearings." Shanberg at 387, 426 A.2d at 233. Furthermore, the hearing officer's need to request additional, non-record evidence is consistent with our finding that there is inadequate evidence to support a conclusion concerning the appropriateness of the educational program at Wordsworth.
There is no question that Robert is an exceptional student in need of special education services. Based upon neurological, psychological and educational reports, the hearing officer concluded that Robert is brain damaged (as defined by 22 Pa. Code § 341.1(i)) and speech and language impaired (as defined by
[ 74 Pa. Commw. Page 50622]
Pa. Code § 341.1(ix)). Neither the District, nor the Intermediate Unit, however, are able to provide an appropriate program of education. Since, as we have previously stated, the record does not support the hearing officer's finding that Wordsworth can offer Robert an appropriate program of education, this Court must remand this matter for further proceedings to select an "appropriate" program of education for Robert. In so doing, we note that testimony was adduced at the previous hearing which indicates that Wordsworth is the only in-state school which will consider Robert.*fn4 Accordingly, it is quite conceivable, if not likely, that there is no school within the Commonwealth offering an "appropriate" program of education in which Robert may be placed. We therefore direct the Secretary, in the additional proceedings to select such a program, to consider out-of-state programs, including the Landmark School, where Robert may be placed as well as those in-state. See 22 Pa. Code § 13.12.
Now, May 27, 1983, the order of the Secretary of Education, dated January 20, 1982, concerning Special Education Opinion No. 189 is hereby reversed and remanded for further proceedings not inconsistent
[ 74 Pa. Commw. Page 507]
with this opinion. Said proceedings are to be completed and a decision rendered within sixty days from the date of this order. Jurisdiction with regard to the merits is relinquished.
Reversed and remanded.