2103850 Notice of Second Proposed Rulemaking, New Procedural Rules for DCPS Cases

OFFICE OF ADMINISTRATIVE HEARINGS

 

NOTICE OF SECOND PROPOSED RULEMAKING

 

The Chief Administrative Law Judge of the Office of Administrative Hearings (OAH), pursuant to the authority set forth in Sections 8(a)(7) and 8(b)(7) of the Office of Administrative Hearings Establishment Act of 2001, effective March 6, 2002 (D.C. Law 14-76, D.C. Official Code §§ 2-1831.05(a)(7) and (b)(7)(2011 Supp.)), hereby gives notice of the intent to adopt the following amendments to chapter 29, Office of Administrative Hearings:  Rules for Rental Housing, Public Benefits, and Unemployment Insurance Cases, of title 1 of the District of Columbia Municipal Regulations (DCMR) in not less than thirty (30) days after the date of publication of this notice in the D.C. Register.

 

The proposed rulemaking establishes new procedures that govern cases referred to OAH by the District of Columbia Public Schools (DCPS).  Following publication of proposed rules in the D.C. Register on December 23, 2011, at 58 DCR 11122, OAH received comments on those proposed rules.  This second proposed rulemaking contains revisions made after considering comments received and supersedes the previous proposed rulemaking.  Emergency rules were adopted on December 20, 2011, and became effective on that date.  Those rules remain in effect and expire on April 18, 2012.

 

OAH will consider additional comments received in response to this Notice. 

 

The title of Chapter 29, Office of Administrative Hearings:  Rules for Rental Housing, Public Benefits, and Unemployment Insurance Cases, of title 1 DCMR is amended to read as follows:

 

CHAPTER 29           OFFICE OF ADMINISTRATIVE HEARINGS:  RULES FOR DCPS, RENTAL HOUSING, PUBLIC BENEFITS, AND UNEMPLOYMENT INSURANCE CASES

 

 

Chapter 29, Office of Administrative Hearings:  Rules for Rental Housing, Public Benefits, and Unemployment Insurance Cases, of Title 1 DCMR is amended by adding the following sections 2900 through 2909 to read as follows:

 

2900                DCPS Hearings – Scope

 

2900.1             Sections 2900 through 2909 govern procedures in cases referred to OAH by the District of Columbia Public Schools (DCPS).

 

2900.2             For procedural issues not covered in Sections 2900 through 2909, the rules in Chapter 28 apply.

 

2900.3             OAH is not required to follow any other procedural rules adopted by DCPS in cases referred to OAH by DCPS.

2901                DCPS Student Discipline Cases – Referrals

 

2901.1             DCPS may refer a student discipline case to OAH, for an Administrative Law Judge to hold a hearing and to decide:

 

(a)        The material facts;

 

(b)        Whether required due process procedures, including notice and the opportunity to respond to the charges, have been followed or have been waived, including whether there was prejudicial failure to follow procedures identified in 5 DCMR B § 2505; and

 

(c)        Whether the facts show that the student committed any of the violations upon which a proposed disciplinary action is based and the proper Tier for any violation, as specified in 5 DCMR B § 2502.

 

2901.2             DCPS shall refer a student discipline case by filing with OAH a copy of the notice of recommended action provided to the adult student, or a minor student’s parent or guardian.  The hearing notice shall contain the hearing date and state the consequences of failing to attend the hearing.

 

2902                DCPS Student Discipline Cases – Hearings

 

2902.1             An adult student, or a minor student’s parent or guardian, may request DCPS to postpone the hearing for not more than five (5) school days if necessary to prepare for the hearing or provide for the attendance of necessary parties or witnesses.

 

2902.2             The parties may, but are not required, to file exhibits and witness lists in advance of the hearing.

 

2902.3             DCPS shall allow an adult student, or a minor student’s parent or guardian, to inspect and copy the student’s disciplinary file before the hearing.

 

2902.4             DCPS shall make the student’s disciplinary file electronically available to OAH.  OAH shall make copies of the disciplinary file available at the hearing to DCPS and the adult student or the minor student’s parent or guardian.  Either party may move to introduce all or part of the disciplinary file into evidence at the hearing.

 

2902.5             The parties shall have all rights set forth in Subsection 2821.5 at a hearing.

 

2902.6             In addition to the representatives listed in Sections 2833 and 2835, an adult student or a minor student’s parent or guardian may select another person to represent a student at a hearing.  Such a representative is subject to Subsections 2835.12 through 2835.14.

 

2902.7             The hearing shall be closed to the public unless the adult student or the minor student’s parent or guardian requests the hearing be open to the public.

 

2902.8             A party who fails to appear for a scheduled hearing may ask OAH, in writing, for a new hearing date.  The request must be filed within one (1) school day after the scheduled hearing date.  The Administrative Law Judge may grant a new hearing date for good cause shown.

 

2903                DCPS Student Discipline Cases – Decisions

 

2903.1             After the close of the record in a student discipline case, the Administrative Law Judge shall issue Findings of Fact and Conclusions of Law on the issues identified in Subsection 2901.1.

 

2903.2             The Administrative Law Judge shall issue the findings of fact and conclusions of law within one (1) school day after the close of the record.  OAH shall provide a copy to DCPS, which shall include it with the final decision sent to the adult student, the minor student’s parent or guardian and any authorized representative.

 

2903.3             In all student discipline cases, DCPS shall be bound by the Administrative Law Judge’s Findings of Fact and Conclusions of Law and shall have no authority to reverse or modify the findings of fact and conclusions of law. 

 

2903.4             If the Administrative Law Judge concludes that the student committed any of the violations upon which the disciplinary action is based, the Administrative Law Judge shall  make a recommendation for the appropriate discipline within the Tier found to be proper considering the factors in 14 DCMR B2500.9.  OAH will return the case to DCPS for it to decide the appropriate discipline. 

 

2903.5             If the Administrative Law Judge concludes that due process was denied or that the student did not commit any of the violations upon which the disciplinary action is based, OAH will return the case to DCPS for appropriate action.

 

2903.6             Because OAH must return these cases to DCPS for further action, the Administrative Law Judge’s decision is not a final disposition of the matter, and a statement of appeal rights is not required by Subsection 2830.1.

 

2904                DCPS Student Discipline Cases – Reconsideration

 

2904.1             No party in a student discipline case shall have the right provided by Section 2828 to file a motion for reconsideration or for a new hearing or a motion for relief from a final order.

 

2904.2             If the adult student or minor student’s parent or guardian did not receive actual notice of the hearing and DCPS has issued a final notice of disciplinary action, the adult student or minor student’s parent or guardian may file a request for reconsideration with DCPS and request that DCPS vacate the final notice and refer the case back to OAH for a hearing and to vacate the Findings of Fact and Conclusions of Law.  When it decides such a request, DCPS may order a new hearing or DCPS may ask for OAH to decide whether to grant a new hearing. 

 

2905                DCPS Contested Residency Cases – Referrals

 

2905.1             DCPS may refer a contested residency case to OAH for a final decision.

 

2906                DCPS Contested Residency Cases – Beginning a Case

 

2906.1             DCPS shall refer a contested residency case to OAH by filing a copy of the request for review that it received, along with a statement that DCPS requests OAH to hear and to decide the case.

 

2907                DCPS Contested Residency Cases – Hearings

 

2907.1             In all contested residency cases, OAH shall set the hearing date and issue the hearing notice.

 

2907.2             The rules in Chapter 28 apply to all hearings in contested residency cases, except that parties should file and serve the witness lists and exhibit lists required by Subsection 2821.2 no later than three (3) days before the hearing date.

 

2908                DCPS Contested Residency Cases – Final Orders

 

2908.1             The presiding Administrative Law Judge shall issue a final order in all contested residency cases, which shall include the statement of appeal rights required by Subsection 2830.1.

 

2909                DCPS Cases – Confidentiality of the Record

 

2909.1             The OAH record in any case referred by DCPS is confidential.  Only the following persons may have access to that record:

 

(a)        The adult student;

 

(b)        The minor student’s parent, guardian, or representative;

 

(c)        Any person who has the written consent of the adult student or the minor student’s parent or guardian; and

 

(d)       School officials with a legitimate interest.

 

 

 

Section 2999, Definitions, is amended as follows:

 

The first sentence in section 2999, Definitions, is assigned subsection 2999.1 so that it reads as follows:

 

2999.1             Unless otherwise provided, the definitions in Chapter 28 apply to this Chapter.

 

 

The second sentence in section 2999, Definitions, is assigned subsection 2999.2 so that it reads as follows:

 

2999.2             For purposes of this Chapter, the term:

 

 

The following definitions are added in alphabetical order:

 

Contested residency case means a case in which an adult student or a minor student’s parent or guardian has filed, pursuant to 5 DCMR E§ 2009.3, a request for review of a decision by DCPS that a student is not entitled to tuition-free education because the student is not a resident of the District of Columbia.

 

DCPS means District of Columbia Public Schools.

 

Disciplinary file means any and all tangible evidence, in DCPS’s possession, which forms the basis for the school’s decision to propose the specific disciplinary action, including, but not limited to, student, staff and other witness statements, incident reports, photographs, police reports, and security camera footage.  Nothing in these rules prohibits DCPS from redacting any information it deems confidential or protected.

 

School day means a day that school is open, whether or not students are attending, but does not include any day that OAH is closed.

 

Student discipline case means a case in which DCPS seeks to expel a student or to suspend a student for at least eleven (11) days. 

 

 

All persons desiring to comment on the subject matter of this proposed rulemaking should submit comments in writing no later than thirty (30) days after the date of publication of this notice in the D.C. Register via e-mail to [e-mail], or to the Office of Administrative Hearings, 441 Fourth Street, NW, Suite 450 North, Washington, DC 20001, Attn: Meredith Postek, Attorney-Advisor (202-741-5303).  Copies of this proposed rulemaking may be obtained from www.oah.dc.gov or from the address listed above.