4079449 Amending DCMR Title 5-A to add new chapter 32 "Special Education Dispute Resolution" and delete DCMR Title 5-E Sections 3029, 3030, 3031.
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OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION
NOTICE OF PROPOSED RULEMAKING
The State Superintendent of Education, pursuant to the authority set forth in section 3(b)(11) of the State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Law 13-176; D.C. Official Code § 38-2602(b)(11) (2001 Ed. & 2012 Supp.)), hereby gives notice of her intent to adopt a new chapter 32 of subtitle A (Office of the State Superintendent of Education) of title 5 (Education) of the District of Columbia Municipal Regulations (DCMR) and to delete title 5, subtitle E, chapter 30, sections 3029, 3030, and 3031 of the DCMR, in not less than thirty (30) days from the date of publication of this notice in the D.C. Register. The proposed regulations incorporate regulations pertaining to administrative due process hearings under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq. (Pub. L. No. 108-446) and regulations at 34 C.F.R. Part 300 currently promulgated in title 5, subtitle E, chapter 30, sections 3029 (Impartial Due Process), 3030 (Due Process Hearing and Decision), and 3031 (Hearing Rights) of the DCMR and revises them to codify standard and best legal practices.
This notice is being circulated throughout the District for a thirty (30) day period, including an opportunity to submit written comments and attend public hearings on the proposal. Two public hearings are scheduled: on December 13, 2012, from 3:00 p.m. to 5:00 p.m., and on December 20, 2012, from 11:00 a.m. to 1:00 p.m., each at the Office of the State Superintendent of Education (“OSSE”), 3rd Floor-Grand Hall, 810 First Street, N.E., Washington, D.C. 20002.
Subtitle A (Office of the State Superintendent of Education) of title 5 (Education) of the District of Columbia Municipal Regulations (DCMR) is amended by adding a new chapter 32 (Special Education Dispute Resolution) to read as follows:
CHAPTER 32 SPECIAL EDUCATION DISPUTE RESOLUTION
3200 AUTHORITY AND PURPOSE
3200.1 This chapter is promulgated pursuant to section 3(b)(11) of the State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Law 13-176; D.C. Official Code § 38-2602(b)(11) (2012 Supp.) and the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq. (Pub. L. No. 108-446).
3200.2 This chapter shall be construed as supplemental to, and in the context of, the IDEA and regulations promulgated thereunder at 34 C.F.R. Part 300. Unless otherwise prescribed herein, all local educational agencies (“LEA”) in the District of Columbia must conform to the requirements of 20 U.S.C. § 1415 of the IDEA and 34 C.F.R. §§ 300.506 through 300.518 and §§ 300.532 through 300.533.
3201 AGENCY RESPONSIBLE FOR CONDUCTING THE DUE PROCESS HEARING
3201.1 In accordance with 34 C.F.R. §300.511(b), the Office of the State Superintendent of Education (OSSE), as the State Education Agency (SEA), is the agency responsible for the funding and administration of due process hearings under this chapter.
3202 FILING A DUE PROCESS COMPLAINT
3202.1 A parent or the public agency has the right to file a due process complaint, in accordance with 20 U.S.C. §1415(f), under any of the following circumstances:
(a) There is a proposal to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child.; or
(b) There is a failure to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child.
3202.2 A due process complaint shall be filed within two (2) years of the date the parent or agency knew or should have known about the alleged violation that forms the basis of the due process complaint. This timeline does not apply to a parent if the parent has been prevented from filing a due process complaint due to:
(a) Specific misrepresentations by the LEA that it had resolved the problem forming the basis of the due process complaint; or
(b) The LEA’s withholding of information from the parent that was required under Part B of the IDEA to be provided to the parent.
3202.3 When a due process complaint is filed, OSSE shall inform the parent of the availability of:
(a) Mediation, and
(b) Any free or low cost legal and other relevant services available.
3202.4 A due process complaint shall be made in writing and a copy of the due process complaint shall be forwarded to OSSE.
3202.5 The attorney of record, or the party if not represented by an attorney, shall sign every pleading. The Hearing Officer may allow documents to be signed by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States (per Fed. R. Civ. P. 5.2(d)(3)).
3202.6 As a part of the five (5) business day disclosure submitted before a due process hearing as required by 34 C.F.R. § 300.512, the submitting attorney shall disclose any financial interest in a non-public school or other service provider that is or may become involved or recommended through the due process hearing.
3203 RESOLUTION PROCESS
3203.1 No later than fifteen (15) days after receiving notice of a parent’s due process complaint, and prior to the initiation of a due process hearing, the LEA shall convene a resolution meeting with the parent and the relevant member(s) of the Individualized Education Program (IEP) team who have specific knowledge of the facts identified in the due process complaint.
3203.2 The LEA is not required to convene a resolution meeting if the parent and the LEA agree in writing to waive the meeting or agree to use the mediation process described in § 3028 of subtitle E of this title. The resolution meeting shall meet the following standards:
(a) The meeting shall include a representative of the LEA who has decision making authority on behalf of the LEA;
(b) The meeting shall not include an attorney of the LEA unless the parent is accompanied by an attorney; and
(c) The purpose of the meeting is for the parent of the child to discuss the due process complaint and the facts that form the basis of the due process complaint, in order to provide the LEA with an opportunity to resolve the dispute that forms the basis of the due process complaint.
3203.3 The parent and the LEA shall determine the relevant members of the IEP team invited to participate in the resolution meeting.
3203.4 If the LEA has not resolved the due process complaint to the satisfaction of the parent within thirty (30) days after the receipt of the due process complaint, the due process hearing process shall move forward.
3203.5 A parent and LEA who convene a resolution meeting may agree to mediation after the thirty (30) day resolution period has ended.
3203.6 Except as provided in § 3203.9, the timeline for issuing a final Hearing Officer Determination under this chapter begins at the expiration of the thirty (30) day period identified in § 3203.4.
3203.7 Except where the LEA and the parent jointly agree in writing to waive the resolution process or to use mediation, in the event that a parent who has filed a due process complaint fails to participate in the resolution meeting:
(a) The timelines for the resolution process and due process hearing will not start until the meeting is held. The LEA may request that a hearing officer grant a continuance of the hearing timeline set forth in § 3206.1. Any such request shall include evidence of the LEA’s reasonable measures to convene a resolution meeting with the parent. The reasonable measures shall be documented in writing using the procedures in § 3026.4 of subtitle E of this title. The parent shall be given an opportunity to respond to the request and related evidence prior to the hearing officer’s ruling on the request.
(b) After reasonable measures have been made, the LEA may, at the conclusion of the thirty (30) day period, request that a hearing officer dismiss the parent’s due process complaint. Any such request shall include evidence of the LEA’s reasonable measures to convene a resolution meeting with the parent. The reasonable measures shall be documented using the procedures in § 3026.4 of subtitle E of this title. The parent shall be given an opportunity to respond to the request and related evidence prior to the hearing officer ruling on the request.
3203.8 If the LEA fails to hold the resolution meeting specified in § 3203.1 within fifteen (15) days after receiving notice of a parent’s due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.
3203.9 The forty-five (45) day timeline for the due process hearing in § 3206.1 shall start on the day after any one (1) of the following events occurs:
(a) The LEA and the parent agree in writing to waive the resolution meeting;
(b) The mediation or resolution meeting starts but, before the end of the thirty (30) day period, the LEA and parent agree in writing that no agreement is possible; or
(c) The parent and the LEA agree in writing to continue the mediation at the end of the thirty (30) day resolution period, but the parent or LEA later withdraws from the mediation process.
3203.10 If any of the adjustments to the resolution period set forth in § 3203.9 occur or if the parties agree in writing to continue the mediation at the end of the resolution period, the parties shall file a copy of the written agreement with the hearing officer and OSSE within three (3) business days after the date of the final execution of the written agreement.
3203.11 If a resolution to the dispute is reached at the meeting described in § 3203.1, the parent and the LEA shall execute a legally binding agreement that:
(a) Is signed by both the parent and a representative of the LEA who has the authority to bind the LEA; and
(b) Contains a provision stating that it shall be enforceable in any state court of competent jurisdiction or in a District Court of the United States.
3203.12 If the LEA and parent execute an agreement pursuant to § 3203.1, either party may void such agreement within three (3) business days after the agreement’s execution. The party who voids the agreement shall provide written notice to all other parties to the agreement.
3204 MOTIONS AND OTHER PAPERS
3204.1 A request that a hearing officer rule or make a decision on a particular issue or order any action shall be by motion. The motion must:
(a) Be in writing unless made during a hearing on the record;
(b) State with particularity the grounds for seeking the order and attach supporting affidavits, declarations, or documents as appropriate; and
(c) State the relief sought.
3204.2 A party filing a motion or any other paper shall file such motion or paper concurrently with OSSE and the hearing officer assigned to the case in the manner directed by the hearing officer and shall concurrently serve the other parties. Service may be by hand delivery, mail, facsimile, or electronic transmission pursuant to agreement among the parties.
3204.3 Any party wishing to respond to or oppose a motion shall file a written response with the hearing officer and the other parties.
3204.4 A certificate of service shall be attached to any motion or other papers filed with the hearing officer and OSSE.
3205 PRE-HEARING CONFERENCE
3205.1 The hearing officer shall conduct a pre-hearing conference with the parties or, if an entry of an appearance is made pursuant to § 3218.1(a), the parties’ attorneys, prior to or upon the commencement of the hearing timeline pursuant to § 3206.1 or 3210.1, and may schedule other conferences at the hearing officer’s discretion.
3205.2 The hearing officer shall issue a pre-hearing notice which shall include the items to be addressed.
3205.3 The hearing officer may conduct all or part of the pre-hearing conference by telephone.
3205.4 The parties or the parties’ attorneys shall be prepared to address the items identified in the pre-hearing notice at the pre-hearing conference.
3205.5 If a party is represented by an attorney in a pre-hearing conference, the attorney must have his or her client’s authority to settle the case or have immediate access to such authorization.
3205.6 The pre-hearing conference shall include the following:
(a) Confirmation of the student’s name, date of birth, school of attendance, and student identification number;
(b) Confirmation of the date the resolution period expired and the date for the issuance of the Hearing Officer Determination in accordance with § 3206.1 or 3210.1.
(c) Identification of the specific issues to be addressed by the hearing officer and requested relief;
(d) Determination of jurisdiction over the issues and parties;
(e) Specification of the amount of time required for the parties to present their respective cases;
(f) Specification of the time, date, place, and other physical arrangements for the hearing;
(g) The procedures prior to the hearing, including the timelines to file motions and, if appropriate, to request a subpoena;
(h) The procedures at the hearing on the merits, including the specification as to who is deemed the moving party with the burden of proof, order of presentation, and responsibilities of the parties;
(i) The date and other requirements for the five (5) business day disclosures set forth in 34 C.F.R. § 300.512;
(j) Whether the hearing officer’s decision shall be mailed to each of the parties, or whether the parties consent to transmission electronically or by facsimile; and
(k) Discussion of any other matter that may aid in simplifying the proceeding or disposing of any matter in controversy, including settlement of the dispute.
3205.7 In accordance with § 3216.1, the hearing officer shall have the authority to take any action necessary to ensure compliance with all requirements of law and may dismiss the matter, with or without prejudice, when the party requesting the hearing fails to provide information required or ordered by the hearing officer.
3205.8 The hearing officer may entertain a motion for dismissal or default against a party who fails to appear for a noticed pre-hearing conference, by issuing a ten (10) day order to show cause.
3205.9 Following the pre-hearing conference, the hearing officer shall issue a pre-hearing order that includes the information in § 3205.6, rulings on any motions heard at the conference, and any decisions made on other related matters.
3206 TIMELINE FOR FINAL DECISION
3206.1 Not later than forty-five (45) days after the expiration of the thirty (30) day resolution period or any adjusted time period described in § 3203.9:
(a) The hearing officer shall issue a final written decision; and
(b) A copy of the final decision shall be:
(1) Mailed to each of the parties including without limitation the parents, LEA, and attorneys of record; or
(2) Transmitted to each party electronically or by facsimile to each of the parties if all of the parties to the due process complaint consent to such transmission; and
(3) Mailed or transmitted electronically or by facsimile to OSSE.
3206.2 A hearing officer may, for good cause shown and at the request of either party, grant specific extensions of time for issuance of the final decision beyond the period set forth in § 3206.1.
3207 CONTINUANCES
3207.1 In accordance with the IDEA, 34 C.F.R. § 300.515(c) and § 3206.2 of this chapter, for good cause shown, the Hearing Officer may grant specific extensions of time of the timeline, or adjusted timeline, for the issuance of the decision at the request of either party.
3207.2 A request for a continuance is a motion that must be filed in writing concurrently with the Hearing Officer assigned to the case and OSSE in the manner directed by the Hearing Officer. The motion must include the requesting party(s), the reason for the motion for Continuance, including the supporting facts, and the requested new decision date.
3207.3 The Hearing Officer will consider factors such as the diligence of the requesting party; the impact of the continuance on the child with a disability, and whether the continuance will prejudice the other party(s).
3208 WITHDRAWAL OF THE DUE PROCESS COMPLAINT
3208.1 The party requesting the hearing may voluntarily withdraw a due process complaint:
(a) At any time prior to the filing of a response to the due process complaint in accordance with 34 C.F.R. § 300.508(e) and (f); or
(b) By written agreement of the parties.
3208.2 A voluntary withdrawal pursuant to § 3208.1 herein shall be without prejudice unless otherwise requested in the withdrawal or written agreement.
3208.3 Except for voluntary withdrawals in accordance with § 3208.1, a request for withdrawal shall be made by motion to the hearing officer and shall include the reason for the motion, including whether a settlement agreement was reached. It is within the discretion of the hearing officer to grant the motion for withdrawal and whether the withdrawal shall be deemed granted with or without prejudice.
3208.4 The withdrawal of a due process complaint does not alter the statutory period of limitations in § 3202.2 herein.
3208.5 If a party who has previously withdrawn from a due process proceeding withdraws a subsequent due process complaint based on or including the same claim(s) set forth in the prior complaint, the request for withdrawal shall be by written motion to the hearing officer. The dismissal of this complaint in its entirety, or any claim(s) therein based on or including the same claim(s) submitted in a prior complaint, shall be with prejudice unless the party demonstrates good cause in the motion why the dismissal of the complaint in its entirety, or any claim(s) therein, should be without prejudice.
3209 FAILURE TO RESPOND OR PROSECUTE
3209.1 A hearing officer may consider the failure to respond within ten (10) days after the date of receipt of the due process complaint pursuant to 34 C.F.R. § 300.508 in determining how to proceed at the due process hearing, including shifting the burden of production (i.e., the obligation to proceed first at the hearing with evidence to prove or disprove a claim) to the non-filing party. The ultimate burden of proof remains with the party who filed the complaint.
3209.2 The hearing officer may order dismissal of a complaint for failure of the filing party to prosecute the complaint.
3210 EXPEDITED DUE PROCESS HEARINGS IN STUDENT DISCIPLINE MATTERS
3210.1 Whenever a due process hearing regarding discipline is requested under 34 C.F.R. § 300.532(a), the hearing shall occur within twenty (20) school days of the date the complaint requesting the hearing is filed. The hearing officer shall make a determination within ten (10) school days after the hearing, and a copy of the Hearing Officer Determination shall be:
(a) Mailed to each of the parties including without limitation the parents, LEA, and attorneys of record; or
(b) Transmitted to each respective party electronically or by facsimile to each of the parties if all of the parties to the due process complaint consent to such transmission; and
(c) Mailed or transmitted electronically or by facsimile to OSSE.
3210.2 Unless the parents and LEA agree in writing to waive the resolution meeting described in section 3203.2, or agree to use the mediation process described in § 3028 of subtitle E of this title:
(a) A resolution meeting shall occur within seven (7) days of receiving notice of the due process complaint; and
(b) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within fifteen (15) days of the receipt of the due process complaint.
3210.3 The resolution period set forth in § 3210.2 herein shall be a part of, and not separate from, the expedited due process hearing timeline in § 3210.1.
3210.4 When a hearing involving a disciplinary matter is expedited, no continuance shall be granted for the occurrence of the hearing or the issuance of the Hearing Officer Determination beyond the timeline required by § 3210.1.
3210.5 Sufficiency challenges to the due process complaint pursuant to 34 C.F.R. § 300.508(d) are not available in the expedited due process hearing.
3211 EXPEDITED DUE PROCESS HEARINGS IN OTHER MATTERS
3211.1 A party wishing to obtain an expedited hearing in a due process complaint that does not involve the discipline procedures under 34 C.F.R. §§ 300.530-300.537 must file a written motion, separate from the due process complaint. The hearing officer may grant the motion to expedite the due process complaint when:
(a) The physical or emotional health or safety of the student or others would be endangered by a delay in the conduct of the hearing; or
(b) There is other substantial justification for expediting the hearing.
3211.2 The expedited due process complaint and hearing under this subsection shall be governed by the same rules as are applicable to expedited due process hearings regarding discipline matters as set forth in § 3210 of this chapter.
3212 HEARING OFFICER DETERMINATION (HOD)
3212.1 A final hearing officer determination (HOD) shall be in writing. The hearing officer shall include the following information in the HOD:
(a) The identity of the parties;
(b) The identity of the student, which shall include the student’s name, student identification (ID) number, date of birth, and attending school;
(c) The case number;
(d) Findings of fact and conclusions of law, separately stated;
(e) The final determination;
(f) An order, including, where applicable, what must be done by each party to carry out the decision, including the establishment of timelines for each step or action, and by whom;
(g) Where applicable, the timeline by which the public agency shall submit evidence to OSSE to demonstrate compliance with the Hearing Officer Determination;
(h) Any appeal rights; and
(i) The hearing officer’s signature, which shall be dated and which may be designated by electronic signature.
3212.2 If a required action in the HOD specifies a period of time by which the action must occur, the starting date to track the time frame for implementation of the required action shall be the date on which the hearing officer signs the order.
3213 BURDEN OF PROOF
3213.1 The burden of proof shall be the responsibility of the party seeking relief. Based solely upon the evidence presented at the hearing, a hearing officer shall determine whether the party seeking relief presented sufficient evidence to meet the burden of proof.
3214 PUBLICATION OF HEARING OFFICER DETERMINATIONS
3214.1 OSSE shall publish HODs excluding personally identifiable student information as well as any other confidential information. HODs available to the public shall also be transmitted to the State Education Agency Advisory Panel.
3215 CONSOLIDATION OF DUE PROCESS COMPLAINTS
3215.1 If a subsequent due process complaint is filed under this chapter while a complaint is pending involving the same parties and student with a disability, , the hearing officer appointed to the pending due process complaint shall be appointed to the subsequent due process complaint involving the same parties, unless that hearing officer is unavailable.
3215.2 In proceedings involving common issues of law or fact, the hearing officer may sua sponte, or on motion of any party, consolidate such proceedings for hearing on any or all of the matters at issue if a joint hearing would serve to expedite or simplify consideration of those issues and no party would be prejudiced thereby. In determining whether to consolidate the proceedings, the hearing officer shall consider the impact of consolidation on the timelines for the respective cases in accordance with §§ 3206.1 and 3210.1. Consolidation or denial thereof shall be by written order.
3215.3 If the due process complaints are consolidated, the earlier timeline for the issuance of a Hearing Officer Determination applies unless a continuance is granted pursuant to § 3206.2.
3216 HEARING OFFICER’S AUTHORITY
3216.1 In addition to the powers and authorities set forth in §§ 3202-3215 and 3217-3221 and in Part B of the IDEA, the hearing officer has the authority to take any actions necessary for compliance with all requirements of law; to control the proceedings; to ensure that appropriate standards of conduct are observed; and to conclude the hearing process in a fair and orderly manner, including to:
(a) Dismiss a due process complaint for lack of jurisdiction;
(b) Require clarification of the issues in the due process complaint, including restatement of the issues as necessary;
(c) Upon motion by a party to the hearing officer, issue subpoenas requiring testimony or the productions of books, papers, and physical or other evidence upon a finding that such evidence is relevant and will not be produced voluntarily;
(d) Qualify a witness as an expert which shall include the area(s) of expertise in which the witness is being qualified;
(e) Take action to finalize the case, including dismissing the pending proceeding if either party refuses to comply in good faith with the hearing officer's orders;
(f) Set guidelines regarding media coverage if the hearing is open to the public;
(g) Accept stipulations of fact and base findings of fact on such stipulations;
(h) Take judicial notice of cognizable facts;
(i) Question any sworn witness at the hearing;
(j) Place reasonable limits on the presentation of evidence as necessary to avoid irrelevant or cumulative evidence, after consultation with the parties and consideration of the proposed evidence;
(k) Require that conflicting experts address the issue or issues on the record;
(l) Permit taking of evidence by telephone or by other similar mechanisms in a manner that safeguards its probative value;
(m) Unless the affected party consents, require an attorney seeking to withdraw from representation to show, after notice to the party and opportunity to respond, good cause for the withdrawal;
(n) Report professional misconduct pursuant to Rule 8.3 of the District of Columbia Rules of Professional Conduct for attorneys; and
(o) Impose, at the request of a party or on the hearing officer’s own initiative, sanctions on any party or the party’s attorney who fails to comply with § 3202.5 or §§ 3203-3215 and 3218 of this chapter, or Part B of the IDEA, or any proper order or requirement specified by the hearing officer. Sanctions may include, unless in conflict with Part B of the IDEA:
(1) Dismissal of an issue, claim, defense, or the due process complaint;
(2) Ordering a remedy to either party, including an assessment of costs; or
(3) Ordering other action or relief to rectify the misconduct.
3217 QUALIFICATIONS OF THE HEARING OFFICER AND RULES OF CONDUCT
3217.1 In addition to the requirements set forth in 34 C.F.R. § 300.511(c), a hearing officer shall be:
(a) A member in good standing of the District of Columbia Bar; or
(b) A member in good standing of another State Bar; eligible for waiver into the District of Columbia Bar; and awaiting action on a petition to waive into the District of Columbia Bar.
3217.2 A hearing officer shall possess judicial temperament.
3217.3 A hearing officer shall:
(a) At all times be in compliance with the American Bar Association's Model Code of Judicial Conduct, including, not engaging in ex parte communications with any party to a pending case, except for communication regarding scheduling; and
(b) Dispose of all administrative hearing matters promptly, efficiently, and fairly, including establishing and implementing procedures to timely rule on motions and to monitor and manage the timely disposition of the due process complaint in accordance with §§ 3206.1 and 3210.1.
3217.4 A hearing officer shall recuse himself or herself in any proceeding in which the hearing officer’s impartiality might reasonably be questioned. By motion to the hearing officer, a party to a pending due process complaint may request the recusal of a hearing officer based on conflict of interest, bias, or other reason and the hearing officer shall timely rule by written order.
3218 APPEARANCE BY ATTORNEY AND RULES OF CONDUCT
3218.1 Any filing by an attorney under this chapter will constitute the entry of an appearance by that attorney as counsel for the party on whose behalf the paper is filed. An attorney may also enter an appearance on a form provided by OSSE. All pleadings and other papers filed by the attorney must set forth the name, full business or street address, telephone number, e-mail address, and fax number, if any, of the attorney.
(a) By entering an appearance on behalf of a party, the attorney certifies that he or she is authorized to represent the party.
(b) Pursuant to 34 C.F.R. § 99.30 and §§ 2603.1 and 3021.2 of subtitle E of this title, the attorney shall file a signed and dated written parental consent for disclosure of personally identifiable information from student records to the attorney in accordance with § 3204.2.
(c) After the entry of an appearance and the receipt of parental consent for the disclosure of personally identifiable information, subsequent notices, pleadings, and documents shall be served on the attorney of record.
3218.2 Hearing officers shall permit only an attorney admitted to the Bar of the District of Columbia to appear before them, except as otherwise permitted by Rule 49(c)(4) and (8) of the District of Columbia Court of Appeals, and law students in accordance with Rule 48 of the District of Columbia Court of Appeals.
3218.3 An attorney who has entered an appearance in a due process proceeding shall be governed by and act in accordance with the District of Columbia Rules of Professional Conduct.
3218.4 Attorneys who appear in hearings under this chapter shall act diligently and avoid unnecessary delay in the disposition of cases, including:
(a) Requesting access to appropriate support services in the hearing process, such as interpreting service, and notifying the hearing officer at least two (2) business days before the scheduled service(s) if it is no longer required;
(b) In accordance with § 3203.8, filing a copy of the written agreement to adjust the resolution period with the hearing officer and OSSE within three (3) business days of the written agreement.
(c) Thoroughly preparing for all pre-hearing conferences and the hearing;
(d) Providing memoranda of law to the hearing officer when required or appropriate;
(e) Serving all filings and communications with the hearing officer on all parties;
(f) Participating in pre-hearing conferences and the hearing; and
(g) Cooperating and communicating civilly with other professionals, the hearing officer, and parties in a case.
3219 RULES OF CIVIL PROCEDURE AND EVIDENCE
3219.1 A hearing officer shall not use or require the use of the rules of civil procedure or the rules of evidence applicable to the District of Columbia and federal courts except by way of analogy or as prescribed in Part B of the IDEA.
3219.2 A hearing officer may admit and give probative effect to evidence admissible in a District of Columbia or federal court. When necessary, a hearing officer may admit evidence not generally admissible over objection in civil actions if the evidence is reliable and relevant.
3219.3 A hearing officer shall exclude irrelevant, immaterial, or unduly repetitious information.
3219.4 A hearing officer shall require all testimony to be taken under oath which the hearing officer is empowered to administer.
3220 HEARING RIGHTS
3220.1 In addition to the rights set forth in 34 C.F.R. § 300.512, a party to a due process hearing has the right to prohibit the introduction at the hearing of any documentary or testimonial evidence that has not been disclosed to all parties at least five (5) business days before the hearing. The disclosure of the testimony of a witness must include the identification of the witness and the general nature of the testimony.
3220.2 Representation of a party pursuant to 34 C.F.R. § 300.512(a)(1) shall be by an attorney or law student in accordance with § 3218.2. Parties may be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities.
3221 SUBPOENA AND SUBPOENA DUCES TECUM
3221.1 A party may request the Hearing Officer to issue a subpoena to order that a witness appear before the Hearing Officer for examination or to issue a subpoena duces tecum to order the named party or other individual to appear before the Hearing Officer and produce specific tangible evidence.
3221.2 To allow for timely service of a subpoena, the party shall file a motion to issue a subpoena and/or subpoena duces tecum with the Hearing Officer no later than fourteen (14) calendar days prior to the date of the scheduled hearing. A copy of the motion must be served on all parties or their attorney of record.
3221.3 The motion to issue a subpoena or subpoena duces tecum must specifically identify the witness or witnesses who are the subjects of the motion and/or the party or other individual who have relevant documents. The motion must specifically state the relevance of the requested testimony and/or books, papers or other physical evidence to a specific issue in the due process complaint and the documented attempts to reach the witness or attempts with the party or attorney of record to request voluntary compliance.
3221.4 An opposing party may request that the Hearing Officer withdraw or quash the subpoena or subpoena duces tecum.
3221.5 It is the responsibility of the requesting party to serve the subpoena and/or subpoena duces tecum and, if necessary, to enforce the subpoena by going to a court of competent jurisdiction.
3222 CIVIL ACTION AND ENFORCEMENT
3222.1 A decision made in a hearing conducted pursuant to this chapter is final, except that any party involved in the hearing aggrieved by the findings and decision of a due process hearing may bring a civil action in any court of competent jurisdiction in accordance with 34 C.F.R. § 300.516.
3222.2 If a party fails to comply with any provision of the order of a Hearing Officer Determination or mediation or resolution agreement reached pursuant to § 3028.7 of subtitle E of this title, pursuant to § 3203.9 of this chapter, or pursuant to a settlement agreement resolving a due process complaint, either party may seek enforcement of the decision or agreement in a court of appropriate jurisdiction or file a State complaint with OSSE pursuant to 34 C.F.R. §§ 300.151 through 300.153.
3299 DEFINITIONS:
Any term used in this chapter that is not otherwise defined herein has the same meaning as the IDEA, 20 U.S.C. § 1400 et seq. and § 3011 of subtitle E of this title of the DCMR.
Individualized Education Program (IEP) – a written statement for a child with a disability, as that term is defined under the IDEA, that is developed, reviewed, and revised in accordance with the IDEA regulations at 34 C.F.R. §§ 300.320-300.324 and District of Columbia Municipal Regulations, Title 5, Subtitle E, Chapter 30 .
Local Educational Agency (LEA) – any public agency having administrative control and direction of a public elementary or secondary school in the District of Columbia. The term includes public charter schools; provided, however, that if a public charter school has elected the District of Columbia Public Schools (DCPS) to serve as its LEA for purposes of Part B of the IDEA, pursuant to D.C. Official Code § 38-1802.10(c), then DCPS shall be considered the LEA for such public charter school for purposes of this chapter.
Public Agency - the SEA, LEAs, and public charter schools that are not otherwise included as LEAs and are not a school of an LEA, and any other political subdivisions of the District of Columbia that are responsible for providing education.
State Educational Agency (SEA) – the agency responsible for state-level supervision of public elementary schools and secondary schools. In the District of Columbia, the SEA is the Office of the State Superintendent of Education.
Section 3029 of chapter 30, title 5, subtitle E (Impartial Due Process) is deleted in its entirety.
Section 3030 of chapter 30, title 5, subtitle E (Due Process Hearing and Decision) is deleted in its entirety.
Section 3031 of chapter 30, title 5, subtitle E (Hearing Rights) is deleted in its entirety.
Persons desiring to comment on the subject matter of this proposed rulemaking should attend the hearings scheduled at OSSE in the 3rd Floor-Grand Hall, 810 First St., NE, Washington, D.C. 20002, on December 13, 2012, from 3:00 p.m. to 5:00 p.m., and on December 20, 2012, from 11:00 a.m. to 1:00 p.m., , or submit comments in writing not later than thirty (30) days after the date of publication of this notice in the D.C. Register via email addressed to: ossecomments.proposedregulations@dc.gov; or by mail or hand delivery to the Office of the State Superintendent of Education, Attn: Jamai Deuberry re: IDEA Dispute Resolution Regulations, 810 First Street, NE 9th Floor, Washington, DC 20002 [Tel. No. (202) 724-7756]. Additional copies of this rule are available from the above address and on the Office of the State Superintendent of Education website at www.osse.dc.gov.
