6016442 Education, Office of the State Superintendent of - Notice of SecondProposed Rulemaking - Deleting Section 3023 "Transfer of Rights" and adding new sections 3034, 3035, 3036 to conform with the "Transfer of Rights" provisions of the Special ...
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OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION
NOTICE OF SECOND PROPOSED RULEMAKING
The State Superintendent of Education (“State Superintendent”), pursuant to the authority set forth in Sections 3(b)(11) and (15) 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) and (15) (2012 Repl. & 2015 Supp.)); and Section 301 of the Special Education Procedural Protections Expansion Act of 2014 (the “Act”), effective March 10, 2015 (D.C. Law 20-194, D.C. Official Code § 38-2573.01) (2012 Repl. & 2015 Supp.)), hereby gives notice of intent to amend Chapter 30 (Special Education) in Subtitle E (Original Title 5) of Title 5 (Education) of the District of Columbia Municipal Regulations (“DCMR”), in not less than fourteen (14) days from the date of publication of this notice in the D.C. Register.
The purpose of the proposed rules is to comply with Section 301 of the Act, which requires the Office of the State Superintendent of Education (“OSSE”) to issue rules implementing Section 104(a) of the Act by July 1, 2016. Section 104(a) requires that OSSE establish a procedure to determine when rights accorded to parents under the Individuals with Disabilities Education Act (IDEA) shall not transfer to a child with a disability who has reached the age of majority because the child with a disability does not have the ability to provide informed consent for purposes of educational decision-making and to appoint another adult to represent the educational interests of the child with a disability.
A Notice of Proposed Rulemaking was published in the D.C. Register for a thirty (30) day public comment period on July 24, 2015, at 62 DCR 10013. In addition, OSSE held two public hearings, on August 5, 2015 and on August 20, 2015. The comment period officially closed on August 24, 2015, with OSSE having received numerous comments from advocates and members of the regulated community regarding Section 3023, “Transfer of Rights,” in the Notice of Proposed Rulemaking. OSSE carefully considered all of the comments and made a number of the requested non-substantive amendments. Additionally, this proposed rulemaking also includes the substantive amendments requested by commenters, as described below.
First, OSSE received several comments requesting that the proposed regulations emphasize supported decision-making over appointing an educational representative whenever possible. To that end, a commenter also requested more guidance in the proposed regulations for local education agencies (LEAs) on how to implement the concept of supported decision making. In addition, OSSE received a comment that requested that the proposed regulations also emphasize the supported decision-making model in conjunction with the student’s right to power of attorney so that the student remains engaged in the decision making process with their designee.
Accordingly, to clarify and address those comments, OSSE has reorganized the substance of Section 3023, “Transfer of Rights” in the Notice of Proposed Rulemaking into three separate sections, (1) Section 3034, “Transfer of Rights: General Provisions and Supportive Decision-Making”; (2) Section 3035, “Transfer of Rights: Exceptions”; and (3) Section 3036, “Transfer of Rights: Notice”. In addition, OSSE has further emphasized supported decision-making by including a definition for “supported decision-making” and providing that appointment of an educational representative should be sought only where supported decision making is not appropriate. In addition, the new Section 3034, “Transfer of Rights: General Provisions and Supportive Decision-Making,” includes documentation requirements to assist LEAs in implementing the supported decision-making provisions and clarifies that the student is the decision-maker. OSSE did not revise the regulations to support use of the supported decision-making model in the case where a student transfers educational decision-making by designation of an agent to have power of attorney. The Act provides for use of supported decision-making where there has not been a transfer of rights.
In addition, OSSE received several comments requesting the proposed rulemaking to clarify the standard of “informed consent” to determine whether an adult student is able to make education decisions. OSSE has considered these comments and agrees with the need to clarify the standard of “informed consent” and its use throughout the proposed rulemaking. Accordingly, OSSE strikes the phrase “informed consent” wherever it appears and replaces it with the term “informed consent regarding educational decisions.” Further, OSSE has amended the standard of “informed consent” to align more closely with the standard for incapacity to make informed health-care decisions under the District’s “Health Care Decisions Act” (D.C. Official Code § 21-2011(11A)).
Further, OSSE received several comments requesting the proposed rulemaking align the understanding of the word “incompetent” with the definition of “incapacitated individual” in District’s law regarding guardianship, D.C. Official Code § 21-2011(11). OSSE agrees with the need to clarify the definition of “incompetent” under District law in the proposed rulemaking. Although Section 104(a) of the Act uses the word “incompetent” in alignment with the IDEA Transfer of Parent Rights at the Age of Majority provisions, 34 C.F.R. § 300.520, OSSE has determined that IDEA’s requirement of a determination as “incompetent under state law” actually aligns with a determination as an “incapacitated individual” under the District’s law regarding guardianship. OSSE, therefore, strikes the use of the word “incompetent” throughout the proposed rulemaking and replaces it with the phrase “incapacitated individual.” OSSE has also added a definition for “incapacitated individual” that aligns with D.C. Official Code § 21-2011(11).
OSSE also considered other comments and made clarifying language revisions in the provisions on appointment of an educational representative and deleted documentation requirements in the certification process regarding the inability to provide informed consent in response to comments that the documentation requirements were burdensome.
Relevant advocates and stakeholders have participated in the comment process and it is not expected that there will be any further comment on these proposed rules. Therefore, there is good cause to shorten the comment period for this round of proposed rulemaking. Consequently, final rulemaking action to adopt the amendments shall be taken in not less than fourteen (14) days from the date of publication of this notice in the D.C. Register.
This notice is being circulated throughout the District for a fourteen (14) day period, including an opportunity to submit written comments and attend public hearings on these proposals. Two (2) public hearings have been scheduled for May 20, 2016, starting at 3:00 p.m. and ending when public comments conclude or at 4:00 p.m., whichever is earlier; and May 26, 2016, starting at 4:00 p.m. and ending when public comments conclude or at 5:00 p.m., whichever is earlier. They will take place at the Office of the State Superintendent of Education, 810 1st Street N.E., Washington, D.C. 20002, as detailed and under conditions set forth at the end of this Notice.
Chapter 30, SPECIAL EDUCATION, of Title 5-E DCMR, ORIGINAL TITLE 5, is proposed to be amended as follows:
Section 3001, DEFINITIONS, is amended by adding the following definitions to Subsection 3001.1:
Educational Representative – an adult appointed by OSSE to represent the educational interests of a child with a disability who upon reaching eighteen (18) years of age is determined under this chapter to be unable to provide informed consent for educational purposes.
Incapacitated Individual – shall have the same meaning as the term is defined in D.C. Official Code § 21-2011(11).
Supported Decision-Making - supports, services, and accommodations that help a child with a disability make his or her own decisions, by using adult friends, family members, professionals, and other people he or she trusts to help understand the issues and choices, ask questions, receive explanations in language he or she understands, and communicate his or her own decisions to others.
Section 3023, TRANSFER OF RIGHTS, is deleted in its entirety and is amended to read:
3023 [RESERVED]
A new Section 3034, TRANSFER OF RIGHTS: GENERAL PROVISIONS AND SUPPORTED DECISION-MAKING, is added to read as follows:
3034 TRANSFER OF RIGHTS: GENERAL PROVISIONS AND SUPPORTED DECISION-MAKING
3034.1 In accordance with D.C. Official Code § 46–101 and IDEA, a child with a disability (“student”) who has reached the age of eighteen (18) shall be presumed to be competent, and all rights under IDEA and local law governing the delivery of special education and related services shall transfer to the child with a disability (“student”), unless one of the exceptions in Subsection 3025.1 is met.
3034.2 Any student who has reached eighteen (18) years of age and to whom all IDEA rights afforded parents under the IDEA have transferred, may voluntarily choose to receive support from his or her parents, family members, or another willing adult to aid the student with educational decision-making. The student’s decisional choice shall prevail any time that a disagreement exists between the student and the other adult providing support in this manner and the student may withdraw his or her decision to receive support at any time.
3034.3 Supported decision-making arrangements shall be documented in writing and include the name, contact information, relationship to the student, and the extent to which the student grants the identified adult access to his or her education records pursuant to District and federal law. The student may change this arrangement and/or revoke access to education records at any time.
A new Section 3035, TRANSFER OF RIGHTS: EXCEPTIONS, is added to read as follows:
3035 TRANSFER OF RIGHTS: EXCEPTIONS
3035.1 In accordance with D.C. Official Code § 46–101 and IDEA, all rights accorded to parents under IDEA and local law governing the delivery of special education and related services shall transfer to the child with a disability (“student”) at the age of eighteen (18), unless one of the following exceptions is met:
(a) The student is declared a legally incapacitated individual, as defined in this chapter, by a court of competent jurisdiction and a legal guardian or representative has been appointed by the court to make decisions for the student, including educational decisions.
(b) The student has designated by power of attorney or similar legal document another adult to be the student’s agent to:
(1) Make educational decisions;
(2) Receive notices; and
(3) Participate in meetings and all other procedures related to the student’s educational program.
(c) The student has been determined, in accordance with Subsection 3035.9, to not have the ability to provide informed consent regarding educational decisions and another adult has been appointed by OSSE to represent the educational interests of the student.
3035.2 An adult student who has executed a power of attorney or similar legal document transferring his or her right to make educational decisions to another to be his or her agent in accordance with Subsection 3035.1(b) may terminate the power of attorney at any time and assume the right to make decisions regarding his or her education. An LEA or responsible public agency shall keep a copy of any written power of attorney in the student’s special education record and shall rely on it until the power of attorney has been revoked by the student in writing or the power of attorney has been superseded by a court order.
3035.3 OSSE shall appoint an educational representative for a student who has reached the age of eighteen (18) only after the following documents have been submitted:
(a) A written request for the appointment of an educational representative signed by the parent, legal guardian, or other interested adult, and made on an OSSE-issued form available on the OSSE website or, upon request, in hard copy; and
(b) Two signed professional certifications that meet all of the requirements of this section.
3035.4 Appointment of an educational representative should be sought only where necessary and where supported decision-making is not appropriate.
3035.5 OSSE will provide written confirmation that all submission requirements have been met and, absent extenuating circumstances, will appoint an educational representative within ten (10) business days of OSSE’s receipt of a complete written request with all required information and certifications. A written request shall not be considered complete unless all requested information has been provided in the required manner.
3035.6 The professional certifications shall be completed by two different licensed professionals, one (1) meeting the requirements of (a) and one (1) meeting the requirements of (b):
(a) A licensed professional who is any of the following:
(1) Licensed medical doctor;
(2) Physician assistant, if authorized by a supervising licensed medical doctor; or
(3) Certified nurse practitioner.
(b) A licensed professional who is any of the following:
(1) Licensed medical doctor;
(2) Licensed psychiatrist;
(3) Clinical psychologist; or
(4) Licensed independent clinical social worker.
3035.7 The professional certifications shall meet the following requirements:
(a) The professional has conducted a personal examination of or interview with the student within one (1) calendar year of the certification;
(b) Based on the professional’s knowledge and expertise and upon clear evidence, the professional determined that the student is unable to provide informed consent regarding educational decisions as described in this section provided, however, that a finding that the student is unable to make educational decisions shall not be based solely on the fact that the student has been voluntarily or involuntarily hospitalized for a mental illness or has a diagnosis of an intellectual disability;
(c) The professional has informed the student in writing of the determination; and
(d) Confirmation that the professional is not employed by the LEA or responsible public agency currently serving the student and does not have a personal conflict of interest with the student or the adult seeking appointment as the student’s educational representative. A personal conflict of interest includes, without limitation, being related by blood or marriage to the student or adult seeking appointment as the educational representative.
3035.8 A student shall be deemed unable to provide informed consent regarding educational decisions if two (2) qualified professionals each independently determine at least one (1) of the following:
(a) The student is unable to understand, on a continuing or consistent basis, the nature, extent, and probable consequences of an educational decision or proposed educational program;
(b) The student is unable to evaluate the benefits or disadvantages of an educational decision or a proposed educational program as compared with alternative options on a continuing or consistent basis; or
(c) The student is unable to communicate understanding verbally, in writing, or in the mode of communication used by the student to communicate his or her decisions, an understanding of or an evaluation of the benefits or disadvantages of an educational decision or proposed educational program.
3035.9 Professional certifications may be submitted as early as ninety (90) calendar days prior to the student’s eighteenth (18th) birthday but shall not be reviewed by OSSE until all of the required documentation have been met, and shall not take effect prior to the student’s eighteenth (18th) birthday.
3035.10 Upon confirming receipt of the required professional certifications, OSSE shall appoint the parent of the student to act as the student’s educational representative. For a student who has already reached the age of eighteen (18), parent means the individual who acted as the parent for purposes of special education before the student reached age eighteen (18). If the parent is unavailable or does not wish to serve as the student’s educational representative, OSSE, with notice to the parent or legal guardian seeking the certification, shall appoint another adult relative willing to act as the student’s educational representative. If no adult relative is available to serve as the student’s educational representative, OSSE, with notice to the parent or legal guardian seeking the certification, shall appoint a person trained as an educational surrogate parent to serve as the student’s educational representative.
3035.11 The term of appointment for an educational representative shall expire when the student is no longer eligible for special education services, or graduates with a regular high school diploma, whichever occurs first.
3035.12 A determination that a student is unable to provide informed consent for educational purposes shall not be construed as a finding of incompetence or incapacity for any other purpose or as relevant or precedential evidence in any future court or legal action seeking to remove decision-making authority for the student.
3035.13 OSSE shall provide notice of the appointment to the educational representative, parent, student, and LEA or responsible public agency. The notice shall include the steps a student may take to challenge the appointment of an educational representative and shall direct the student’s LEA or responsible public agency to deliver a hard copy of the appointment to the student and to inform the student of the appointment verbally, or in the manner of communication with which the student is most comfortable.
3035.14 The student may challenge the certification of the student as unable to provide informed consent for educational purposes or appointment of an educational representative in accordance with this section at any time, in accordance with the following requirements:
(a) A challenge made under this section shall be made in writing to OSSE, except that OSSE shall assist a student who is unable to provide a written challenge to document a verbal challenge in writing and may refer the student to a community organization for assistance.
(b) OSSE shall notify the student, the responsible LEA or public agency, any current appointed educational representative, and the person who submitted the request for the appointment of an educational representative (if different), of any such challenge in writing no later than two (2) business days from the receipt of the challenge.
3035.15 If the certification of a student is challenged by the student, the existing certification is invalidated, and all educational rights transfer back to the student.
A new Section 3036, TRANSFER OF RIGHTS: NOTICE, is added to read as follows:
3036 TRANSFER OF RIGHTS: NOTICE
3036.1 No later than one (1) year before a child with a disability (“student”) reaches eighteen (18) years of age, the LEA or responsible public agency shall notify the parents and student, in writing, that adult students with disabilities are presumed competent, and that all rights under IDEA will transfer to the student when he or she reaches eighteen (18) years of age, unless the student or parent pursues one of the exceptions described in Subsection 3025.1. The notice shall also describe the supported decision-making provisions of this section and the necessary procedures to pursue the exceptions described in Section 3035 related to educational decisions.
Persons desiring to comment on this proposed rulemaking may attend the public hearings scheduled to be held at OSSE, 810 1st St. N.E., Washington D.C., 20002, on May 20, 2016, starting at 3:00 p.m. on the 3rd Floor in the Grand Hall and ending when public comments conclude or at 4:00 p.m., whichever is later; and May 26, 2016, starting at 4:00 p.m. on the 8th Floor in Room 806B and ending when public comments conclude or at 5:00 p.m., whichever is later; individuals wishing to testify at the hearing should contact Christie Weaver-Harris, Policy Analyst, at 202-741-0470 by e-mail at Christie.Weaver-Harris@dc.gov. Individuals representing themselves and presenting testimony will be limited to five (5) minutes; individuals representing an organization will be limited to a total presentation time of seven (7) minutes at each public hearing.
Persons may also file comments in writing by email at osse.publicomment@dc.gov or by postal mail or hand delivery to the Office of the State Superintendent of Education, Attn.: Elisabeth Morse re: Special Education Rulemaking, 810 First Street, N.E., 8th Floor, Washington D.C. 20002, not later than fourteen (14) days after the date of publication of this notice in the D.C. Register. 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.
