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June 3, 1986

RUSSELL A. MUTH, JR. individually and on Behalf of his minor child ROBERT ALEXANDER MUTH
MARGARET A. SMITH, Secretary of Education of the Commonwealth of Pennsylvania, et al.

The opinion of the court was delivered by: HUYETT


 Presently pending before me in this action, based on the Education For All Handicapped Children Act (EAHCA), 20 U.S.C. § 1401 et seq., is plaintiff's motion for summary judgment. By order dated November 18, 1985, I granted plaintiff leave to file a second amended complaint to raise certain issues which prior counsel had omitted including the issue of whether Pennsylvania's administrative procedure used to determine the appropriate education for a handicapped minor, complies with the dictates of the federal EAHCA. Plaintiff has now moved for summary judgment on this issue. For the reasons which follow, I shall grant plaintiff's motion.

 The regulations implementing § 1415 track the statute's language and provide certain elaborations. For instance, the initial hearing must be impartial and therefore cannot be conducted "by a person who is an employee of a public agency which is involved in the education or care of the child." 34 C.F.R. § 300.507. If the state establishes a two-tier system, i.e., if the hearing is conducted by a public agency other than the state educational agency, the state educational agency may conduct an impartial review which shall include examining the entire administrative record, ensuring that the procedures at the hearing were consistent with the requirements of due process, and if appropriate, taking additional evidence.

 Plaintiff in his motion for summary judgment contends that the Pennsylvania Administrative Procedure as set forth in the Pennsylvania Code and as applied in this case violates the due process requirements set forth in the EAHCA. Before examining plaintiff's contentions, however, it is necessary first to determine what the Pennsylvania Administrative Procedure is and how it was applied in this case.

 The Pennsylvania Administrative Procedure is set forth in 22 Pa. Code § 13.31 et seq. Section 13.32(2) provides that a parent is to be notified of "the right to a full hearing before the Secretary or the designee of the Secretary." If a parent decides to request a due process hearing because there is no agreement as to the assignment of a child, the school entity must forward the request for a hearing to the Department of Education within ten days of the receipt of the request. § 13.32(10). The hearing is then held in the school district and at a place convenient to the parent. § 13.32(11). The hearing officer is assigned by the Secretary. § 13.32(12). The decision of the hearing officer may be appealed to the Secretary of Education. § 13.32(24).

 In this case, plaintiff and the Central Bucks School District personnel were unable to agree on a proposal for the appropriate placement of plaintiff's minor son, Alexander. On June 17, 1983, plaintiff requested a due process hearing to address the School District's failure to provide an "appropriate" education for Alexander. On September 30, 1983, a due process hearing was held before Hearing Officer Bernard Trent. On October 31, 1983, Mr. Trent issued his decision in which he concluded that Alexander was an extremely intelligent but severely learning disabled child who had not received an appropriate education; he further held that when developing a program for Alexander, the School District had to consider the potential to function within the gifted range and provide him with special activities and services not ordinarily provided in a regular program.

 Both the School District and plaintiff appealed the Hearing Officer's decision to the Secretary of Education pursuant to 22 Pa. Code § 13.32(24). The Secretary of Education remanded the case on January 23, 1984 to the Hearing Officer with instructions to the District to present additional information in the form of a revised Individualized Educational Program (I.E.P.) reflecting certain recommendations which had been made on June 17, 1983. Mr. Trent issued his final decision on July 25, 1984 in which he stated that modifications and adjustments which the Central Bucks School District made to the March 28, 1984 I.E.P. constituted an appropriate program for special education for Alexander. On appeal, the Secretary adopted the Hearing Officer's conclusions and dismissed plaintiff's exceptions. This action arises from plaintiff's appeal of the Secretary's final decision.

 Plaintiff argues first that the Pennsylvania process violates the "finality" requirement of the EAHCA. The basis for plaintiff's position is his contention that the due process hearing, which in this case was conducted by Mr. Trent, is a state level hearing. In support of this contention, plaintiff points to 22 Pa. Code § 13.32(2) which states that due process hearings are to be conducted "by the Secretary or the designee of the Secretary." Under the Pennsylvania system, the state agency is also responsible for reviewing the hearing officer's findings and decision. However, pursuant to the EAHCA, § 1415(c), an appeal may only be taken to the state agency if the hearing is conducted initially at the local or intermediate agency level. Plaintiff argues, therefore, that because the hearing officer's decision in Pennsylvania is a state level decision, it should be final subject only to the review of the judicial system.

 Plaintiff draws a parallel between the Pennsylvania process and several in other states which have been struck down as contravening federal law. In several of the cases, the findings and decisions of the hearing officers were characterized as special master reports to the Secretary of Education and therefore violated the finality rule. For instance, in Helms v. McDaniel, 657 F.2d 800 (5th Cir. 1981), the court struck down use of a master's report at the state level when the state board of education could accept or reject the findings; this procedure failed to comply with the requirement that the decision be final unless appealed to state or federal court. Plaintiff argues that the Pennsylvania process is similar to that aspect of the Georgia system which was struck down in Helms in that the initial hearing is a state level hearing which is then reviewed by the Secretary. The written procedures given to parents who wish to object to the report of the hearing officer support plaintiff's contentions. They specifically state: "A hearing officer's report constitutes Findings of Fact made by the hearing officer and a list of recommended orders (recommendations) which the hearing officer believes the Secretary of Education should adopt." See Attachment to plaintiff's motion for summary judgment. This provision certainly suggests that the hearing officer is an agent of the Secretary of Education whose conclusions may be accepted or rejected.

 Defendant Smith, in response to plaintiff's motion for summary judgment, argues that plaintiff's position with respect to the finality issue is based on two false assumptions: one, that the initial hearing is a state level hearing and two, that the hearing examiner's report is the report of a special master whose findings are not final. Defendant Smith contends that the Secretary is required by federal regulation to maintain a list of persons who shall serve as hearing officer. In support of this contention, defendant Smith points to 45 C.F.R. § 121a.507 (1979). This section of the Code of Federal Regulations has been repealed and replaced by 34 C.F.R. § 300.507(c); however, the wording has not been changed. Nevertheless, this provision does not appear to support the Secretary's position. Section 300.507(c) states:

Each public agency shall keep a list of the persons who serve as hearing officers. This list must include a statement of the qualifications of each such person.

 This section does not require the Secretary of Education to keep such a list, and nothing in the provision suggests that the public agency referred to is necessarily the state educational agency. Rather, "public agency" as used in the regulations seems to refer to whatever agency conducts the hearing under the state system; this may be ...

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