Wordsworth Academy v. Gaugler

Dissenting Opinion by

Judge Blatt:

I must respectfully dissent.

I am concerned about the potentially far-reaching implications of this opinion on the educational process for handicapped children. While recognizing that a parent must not be allowed to “twist the arm” of the Department of Education (Department) by enrolling a child in an expensive private school and *500then demanding that the Department pay for that education, nevertheless, 22 Pa. Code §13.11 (a) clearly provides that all handicapped school-aged persons identified shall be provided with an appropriate program of education or training, or both.

We are, of course, greatly handicapped by the meager factual information on the record in this case. For example, we do not know exactly when Mrs. Gaugler requested the approval of the school. Nor do we know whether or not she did give the school district and the intermediate unit any opportunity to provide an appropriate education for her son before she placed him in Wordsworth. Yet, 22 Pa. Code §13.11 (b) provides that the services of approved private schools may be used when intermediate unit and school district boards agree that they cannot provide services effectively for handicapped school-aged persons.

Also, we need to know the length of time between the filing of the request for approval and the rendering of a decision by the Department; however, because we do not know when the request was submitted, we have no way of determining whether or not the delay was unreasonably long.

Keeping in mind, however, that the school district has a duty and an obligation to provide Mrs. Gaugler’s son with an appropriate program of education, I believe it is possible that the Department’s delay in rendering a decision until well into the next school year, could unduly harm and prejudice the child’s educational program, and could serve to obligate the Department to pay for at least the initial part of the 1977-1978 school year.

I would further note that Krawitz is not factually distinguishable from this case and in Krawitz we held that a fourteen-month delay in providing a hear*501ing was not without consequence to the educational program of the child, and ordered reimbursement for the first full year in an unapproved out-of-state school. By this decision, it seems to me that we may be allowing the school district to shirk its duty to educate James for up to an entire year. And a year is a very substantial time period in the educational program of any child — perhaps even more significant in the case of an exceptional child!

Whether or not the school district did shirk its responsibility is a consideration which, I believe, must be determined before we reach any decision as to whether or hot the Department is liable for this child’s bills at Wordsworth. Additional facts, however, are needed to make such a determination.

I believe that it would be premature to .sustain the Preliminary Objections of the Additional Defendants without more information, and I would overrule them.