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ANDREW CONWAY v. ROBERT C. WILBURN (02/20/85)

decided: February 20, 1985.

ANDREW CONWAY, INDIVIDUALLY AND BY HIS PARENTS, REGINA CONWAY AND CHARLES CONWAY AND REGINA CONWAY AND CHARLES CONWAY, INDIVIDUALLY AND IN THEIR OWN RIGHT, PETITIONERS
v.
ROBERT C. WILBURN, SECRETARY OF EDUCATION AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENTS



Appeal from the Order of the Secretary of Education in case of In Re: The Educational Assignment of Andrew C., a student in the Abington School District, Special Education Opinion No. 219.

COUNSEL

Edward G. Titterton, III, for petitioners.

Ernest N. Helling, Counsel, with him, John A. Alzamora, Senior Counsel, for respondents.

Robert A. MacDonnell, Obermayer, Rebmann, Maxwell & Hippel, for intervenor, Abington School District.

Judges Williams, Jr. and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. This decision was reached prior to the resignation of Judge Williams, Jr. Judge Rogers did not participate in the decision in this case.

Author: Barbieri

[ 87 Pa. Commw. Page 613]

Charles Conway and his wife Regina (Petitioners), parents of Andrew Conway, appeal here an adjudication and final order of the Secretary of Education (Secretary), reversing a recommended order issued by a hearing officer following a due process hearing conducted pursuant to 22 Pa. Code §§ 13.31-13.33.

Andrew, a nine-year-old severely and profoundly impaired mentally retarded child, resides with his parents in the Abington School District (District). During the summer of 1981 and previous summers, Andrew attended extended school year (ESY) programming operated by the Montgomery County Intermediate Unit (MCIU). However, in the spring of 1982, based upon the judgment of public school special education personnel who had observed and reviewed records concerning Andrew, the District and the MCIU determined that Andrew was ineligible for ESY programming for the summer of 1982. Pursuant to 22 Pa. Code § 13.31, Petitioners subsequently requested a due process hearing to contest the District's determination.

Following three hearing sessions in the matter, on November 11, 1982 the hearing officer issued a report and recommended to the Secretary that Andrew was eligible for ESY programming for the summers of 1982 and 1983, pursuant to Remedial Order No. 2 of Armstrong v. Klein, 476 F. Supp. 583 (E.D. Pa. 1979), modified and remanded, Battle v. Commonwealth, 629 F.2d 269 (3rd Cir. 1980), and that the District be ordered to develop an appropriate evaluative strategy for measuring Andrew's regression and recoupment in learned skills to be used in determining Andrew's ESY eligibility. On August 22, 1983, the Secretary reversed the hearing officer's recommended order, ruling, inter alia, that the hearing officer had erred

[ 87 Pa. Commw. Page 614]

    in not ruling as moot the matter of alleged defects in data for the years prior to 1983. The Secretary ordered:

If there is a continuing request by Andrew's parent[s] for an ESY program, then the district shall review such requests in terms of: Andrew's past regular school year IEP(s) [individual education plan] and observations and data gathered about Andrew's performance under the IEP, (ii) such other available information, tests, reports, and data in the district's and MCIU's possession which the ...


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