§ 14.64. [Reserved].


Source

   The provisions of this §  14.64 adopted June 15, 1990, effective July 1, 1990, 20 Pa.B. 3339; amended October 11, 1991, effective October 12, 1991, 21 Pa.B. 4830; amended December 18, 1992, effective December 19, 1992, 22 Pa.B. 6030; reserved June 8, 2001, effective June 9, 2001, 31 Pa.B. 3021. Immediately preceding text appears at serial pages (202989) to (202990) and (249391) to (249392).

Notes of Decisions

   Burden of Proof

   While ‘‘due weight’’ must be accorded to the administrative proceedings, the burden of proof remained on the school district to show that it was in compliance with the Individuals with Disabilities Education Act (20 U.S.C.A. §  1400 et seq.), even when, as here, the school district prevailed at the administrative level. Laughlin v. Central Bucks Sch. Dist., No. 91-7333, 1994 U. S. Dist. LEXIS 201 (E. D. Pa. January 12, 1994).

   Consumer Complaint

   Parents/complainants had no right to appeal a determination of a consumer complaint in which the parents alleged a general failure to provide a preconference hearing and a due process hearing. Complainants are not considered a ‘‘party’’ to a proceeding before the Department upon the filing of a consumer complaint and, therefore, may not file an appeal of a decision. Wolfe v. Lower Merion School District, 801 A.2d 639 (Pa. Cmwlth. 2002).

   Coordination Services

   Subdivision (n)(2) makes it clear that only a school district has the option to forgo utilization of the coordination services offered in (n)(1) of this section. There is no language in the regulations that gives this option to the parents or requires that a school district notify parents of this option. Therefore, there was no violation of a parent’s due process right where the school district failed to notify the parent of the right to a hearing from an agency other than the Department of Education. Kozak v. Hampton Township Sch. Dist., 655 A.2d 641 (Pa. Cmwlth. 1995), appeal denied 666 A.2d 1060 (Pa. 1995).

   Judicial Review

   Arguments not presented to the appeals panel cannot be pressed in Federal court and courts may only review what the appeals panel actually decided. Drinker v. Colonial Sch. Dist., 888 F. Supp. 674 (E. D. Pa. 1995); 78 F.3d 859 (3rd. Cir. 1996); affirmed and remanded 78 F.3d 859 (3rd. Cir. 1996).

   Judicial Review; Exhaustion of Remedies

   To file suit to seek tuition reimbursement under the Federal Individuals with Disabilities Education Act (IDEA), a claimant must exhaust all available administrative remedies, including the due process hearing provided by §  14.64(a). The fact that one party feels that a mutually satisfactory resolution is impossible does not render the hearing futile; instead, the hearing is required to seek relief under the IDEA. Falzett v. Pocono Mountain School District, 150 F. Supp.2d 699 (M.D. Pa. 2001).

   Pending Litigation

   Although the first appeals panel’s decision was reached, the litigation was not resolved; therefore, 20 U.S.C.A. §  1415(e)(3)’s requirement that ‘‘during the pendency of any proceedings . . . the child shall remain in the then current educational placement’’ applied to this case. Drinker v. Colonial School District, 78 F.3d 859 (3d Cir. 1996).

   The district court was correct in its decision that the school district must bear the burden of paying for the costs of a student’s education through the date of the district court’s final order. Drinker v. Colonial School District, 78 F.3d 859 (3d Cir. 1996).

   Two-Tiered Review

   Under the two-tier due process hearing procedure, the Appeals Panel is the ultimate factfinder and charged with making an independent examination of the evidence in the record; therefore, the Appeals Panel is not bound by the decision of the hearing officer, and its scope of review is not restricted to determining whether the hearing officer’s factual findings are supported. Millersburg Area School District v. Lynda T., 707 A.2d 572 (Pa. Cmwlth. 1998).



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