87 Pa. Commw. 611 | Pa. Commw. Ct. | 1985
Opinion by
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 (M-CIU). 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
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 district believes relevant to such review, and (iii) the Armstrong Remedial Order No. 2 EST standard.
Petitioners filed a timely Petition for Review of this decision.
Petitioners argue: (1) the Secretary erred by ruling that the issue of Andrew’s ESY eligibility for the summer of 1982 was moot and that the hearing officer’s presumption that any given policy existed or would be repeated in ESY evaluations for the summer of 1983 was without legal or evidentiary basis; (2) the Secretary erred by determining that the hearing officer incorrectly assigned the burden of proof; (3) the collection process employed by the District and the MCIU to assess Andrew’s eligibility for ESY programming was defective; and (4) the District’s procedure for determining Andrew’s ESY eligibility was invalid because it took into account “learned” skills, but not “unlearned” or “mastered” skills.
Initially, we address the issue of whether Andrew’s ESY eligibility for the summers of 1982 and 1983 is moot. As a general rule, an actual case controversy must exist at all stages of appellate review. Janet D.
Petitioners also argue that the Secretary erred in determining that the hearing officer incorrectly assigned the burden of proof. The hearing officer reasoned :
The School District presented little or no convincing testimony to establish a cause for possible regression. This contention centered on the proposition that if regression in learned skills occurred, Andrew recouped those skills within a reasonable period of time. Since the data presented by the District on this issue were wanting relative to consistency and relia*616 bility, these data can not be used to establish a causal or non-causal relationship between regression and summer break.
We agree with Petitioners that the hearing officer properly assigned the burden of proof. In the present case, the District proposed to change Andrew’s educational status by declaring him ineligible for ESY programming. Under 22 Pa. Code §13.32(15), this proposed change could be approved ‘ ‘ only if supported by substantial evidence on the whole record of the hearing.”
Accordingly, we vacate the order of the Secretary reversing the hearing officer’s recommended order and remand to the Secretary for further proceedings consistent with this opinion.
Obdeb,
And Now, this 20th day of February, 1985, it is ordered that the order of the Secretary of Education, dated August 22, 1983, is hereby vacated and this case is remanded to the Secretary for proceedings consistent with this opinion.
22 Pa. Code §13.32(15) provides:
The proposed change m educational status or modification for appropriateness shall be approved onl/y if supported by substantial evidence on the whole record of the hearing. Introduction by the school district or intermediate unit of the official report, recommending a change in educational assignment, provided a copy of such report was given to parent at the time notice was given, shall discharge its burden of going forward with the evidence, thereby requiring the parent to introduce as contemplated in, Paragraph (17), (18) and (19) of this section in support of the contention of the parents. (Emphasis added.)
22 Pa. Code §13.33(7) provides that a due process hearing requested by the student’s pai-ents shall foUow the steps and procedures set forth in §13.32(9)-(24). Moreover, 22 Pa. Code §13.32(15) applies to parenbinitiated due process procedures as well as District-initiated procedures.
The case of Fitz v. Intermediate Unit No. 20, 43 Pa. Commonwealth Ct. 370, 403 A.2d 138 (1979), cited by the District, actually strengthens our conclusion. In Fite, where parents requested a change in their daughter’s educational program, which had been in place for two years, we held that the parents had the burden of showing that the change was supported by substantial evidence.
Indeed, the Secretary of Education asks that we remand to him for a determination on these two issues if we find that the questions presented are not moot.