Appeal from the Order of the Secretary of Education, in case of In Re: Educational Assignment of Robert M., a student in the Towanda Area School District, Special Education Opinion No. 248, dated March 1, 1985.
Christopher C. Conner, with him, Jack M. Stover, for petitioners.
Mary Beth O'Hara Osborne, Assistant Counsel, with her, Mary M. Rogers, Chief Counsel, for respondent.
Paul L. Stevens, Curtin and Heefner, for intervenor, Towanda Area School District.
Judges Doyle and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Judge Rogers did not participate in the decision in this case.
[ 94 Pa. Commw. Page 431]
This is an appeal by Robert J. and Ann N. Murphy (Petitioners or Parents) and their son, Robert Jr. (Robert), from an order of the Secretary of Education (Secretary) adopting the recommendation of a hearing officer which denied Petitioners reimbursement for expenses incurred in connection with enrolling Robert, a learning disabled student, in an out-of-state private school, Landmark School (Landmark), in Prides Crossing, Massachusetts.
Under Department of Education regulation 13.11(a), 22 Pa. Code § 13.11(a) "[a]ll handicapped school-aged persons identified shall be provided with an appropriate program of education or training, or both . . .", said program to be determined by procedures established by the Department. An appropriate program is defined as:
[ 94 Pa. Commw. Page 432]
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.
Furthermore, 22 Pa. Code 13.2(a), which is entitled "Statement of purpose," provides in pertinent part, "[i]t shall be the policy of the [State] Board [of Education], through the Secretary, to provide exceptional school-aged persons with quality special education programs and services which will ultimately enable them to participate as fully as possible in appropriate activities of daily living."
Under Department regulation 13.11(b) the primary responsibility for providing an appropriate program rests with the school district. The United States Supreme Court, in the context of construing the Education of the Handicapped Act (Act), 20 U.S.C. §§ 1401-1451, the rationale of which underlies the Department's regulations on this subject matter, has held that a state and its school district comply with the Act if they provide "educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from the instruction." Board of Education v. Rowley, 458 U.S. 176, 188-89 (1982). What the Act does not require is that a state or school district "maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children." Id. at 200. ...