14 Del. Admin. Code § 926-12.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 926-12.0 - Hearing Rights

12.1 General: Any party to a due process hearing conducted pursuant to Sections 7.0 through 13.0, or Sections 30.0 through 34.0, has the right to:

12.1.1 Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, except whether parties have the right to be represented by non-attorneys at due process hearings is determined by State law;

12.1.2 Present evidence and confront and cross examine adverse witness;

12.1.3 Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least 5 business days before the hearing;

12.1.4 Obtain a written, or, at the option of the parents, electronic verbatim record of the hearing at public expense;

12.1.5 Obtain a written, or, at the option of the parents, electronic decision which includes findings of fact and law; and

12.1.6 Compel the attendance of witnesses:

12.1.6.1Authority to issue subpoenas rests with the Secretary, or the Secretary's designee.

12.1.6.2Upon the application of any party to the Secretary at least 12 days prior to a hearing, a subpoena shall be issued requiring the attendance of the person or persons listed in the application. A copy of the application for subpoenas shall be provided to the hearing panel and to the other party no later than the time it is provided to the Secretary.

12.1.6.3If a person subpoenaed to attend a hearing fails to obey without reasonable cause, or if such person refuses, without lawful excuse, to be examined or to answer pertinent questions, an application may be filed with the Family Court for an order directing the such person to show cause why he or she should not appear to testify. Upon return of the rule, the Family Court shall examine such person under oath, and if the Family Court shall determine, after giving such person an opportunity to be heard, that he or she refused without legal excuse to attend or testify at the hearing, despite the subpoena, the Family Court may order such person to comply therewith. Any failure to obey the order may be punished as a contempt of the Family Court, pursuant to the Rules of the Family Court.

12.2 Additional disclosure of information; At least 5 business days prior to a hearing conducted pursuant to subsection 1.1, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.

12.2.1 The hearing panel may bar any party that fails to comply with subsection 12.2 of this regulation from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

12.3 Parental rights at hearings: Any testimony presented at a due process hearing shall be under oath or affirmation. The hearing panel shall ensure that parents have been advised of their procedural safeguards. Parents involved in hearings shall also be given the right to:

12.3.1 Have the child who is the subject of the hearing present;

12.3.2 Open the hearing to the public;

12.3.3 Have the record of the hearing and the findings of fact and decisions provided at no cost to parents; and

12.3.4Have the hearing conducted at a time and place which is reasonably convenient to the parents and child involved.

12.4 The due process hearing shall be conducted in accordance with hearing rules and procedures as from time to time developed by the DOE for the conduct of special education due process hearings.

(Authority: 14 Del.C. §§ 3110, 3135, 3137, 3139)

14 Del. Admin. Code § 926-12.0

14 DE Reg. 1065 (04/01/11)
26 DE Reg. 847 (4/1/2023) (Final)