D.C. Mun. Regs. tit. 5, r. 5-A3053

Current through Register Vol. 71, No. 36, September 6, 2024

Rule 5-A3053 - DUE PROCESS HEARINGS AND HEARING OFFICER DETERMINATIONS

3053.1

Except as provided in Section 3052, a forty-five (45) calendar-day hearing period shall begin after the expiration of the thirty (30) calendar-day resolution process period.

3053.2

The forty-five (45) calendar-day timeline for the due process hearing in this section shall start on the calendar day after any 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 thirty (30) calendar days, the LEA and the 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) calendar day resolution period, but the parent or LEA later withdraws from the mediation process.

3053.3

No later than forty-five (45) calendar days after the expiration of the thirty (30) calendar-day resolution period or any adjusted time period described in this section, a final determination shall be reached in the hearing, and a copy of the decision shall be mailed, or transmitted electronically or by facsimile to each party, if all parties to the due process complaint consent to such electronic or facsimile transmission.

3053.4

An impartial hearing officer may, for good cause shown, grant specific extensions of time beyond the periods set forth in this section at the request of either party.

3053.5

The Hearing Officer Determination (HOD) shall be in writing and include all of the following:

(a) The identity of the parties;

(b) The identity of the child, which shall include the child's name, State-issued unique child identifier, date of birth, and attending LEA and school;

(c) The case number;

(d) Findings of fact and conclusions of law, separately stated;

(e) The final determination;

(f) What shall be done by each party, where applicable, to carry out the determination including the establishment of timelines for each step or action;

(g) Any appeal rights; and

(h) The hearing officer's signature, which shall be dated, which may be designated by electronic signature.

3053.6

In special education due process hearings occurring pursuant to this chapter, the party who filed for the due process hearing shall bear the burden of production and the burden of persuasion, except that:

(a) Where there is a dispute about the appropriateness of the child's IEP or placement, or of the program or placement proposed by the LEA, the LEA shall hold the burden of persuasion on the appropriateness of the existing or proposed program or placement, provided, that the party requesting the due process hearing shall retain the burden of production and shall establish a prima facie case before the burden of persuasion falls on the LEA. The burden of persuasion shall be met by a preponderance of the evidence; and

(b) Where a party seeks tuition reimbursement for unilateral placement, the party seeking reimbursement shall bear the burden of production and the burden of persuasion on the appropriateness of the unilateral placement, provided that:

(1) The impartial hearing officer shall have the authority to bifurcate a hearing regarding a unilateral placement; and

(2) If the impartial hearing officer determines that the program offered by the LEA is appropriate, then the inquiry into the appropriateness of the unilateral placement is not necessary.

3053.7

An HOD resulting from the filing of a due process complaint shall be final upon the parties to the due process complaint, settlement agreement (SA), or both.

3053.8

After deleting personally identifiable information from hearing decisions, the SEA shall transmit the findings and decisions to the State Education Agency Advisory Panel and make the findings and decisions available to the public.

3053.9

If a child with a disability who is the subject of a HOD or SA transfers to a new LEA during the term of the HOD or SA, the new LEA shall cooperate with the LEA bound by the HOD or SA in the implementation of the HOD or SA. The responsibility for implementation of the HOD or SA shall remain at all times with the LEA that was a party to the HOD or SA. In no event shall implementation of the HOD or SA interfere with the new LEA's ability to make FAPE available to the child.

D.C. Mun. Regs. tit. 5, r. 5-A3053

Final Rulemaking published at 69 DCR 5902 7/1/2022