D.C. Mun. Regs. tit. 5, r. 5-A3036

Current through Register Vol. 71, No. 49, December 6, 2024

Rule 5-A3036 - TRANSFER OF RIGHTS: EXCEPTIONS

3036.1

In accordance with D.C. Official Code § 46-101 and the 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 at the age of eighteen (18), unless one (1) 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 Section 3036.8, to not have the ability to provide informed consent regarding educational decisions and another adult has been appointed by the SEA to represent the educational interests of the student.

3036.2

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 Section 3036.1(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power of attorney in the student's special education record and shall rely on it until the power of attorney has been revoked by the student in writing or the power of attorney has been superseded by a court order.

3036.3

The SEA 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 a SEA-issued form available on the SEA website or, upon request, in hard copy; and

(b) Two (2) signed professional certifications that meet all of the requirements of this section.

3036.4

Appointment of an educational representative should be sought only where necessary and where supported decision-making is not appropriate.

3036.5

The SEA 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 the SEA'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.

3036.6

The professional certifications shall be completed by two (2) 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; and

(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.

3036.7

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 of the determination in writing, and verbally or in the manner of communication with which the student is most comfortable; 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.

3036.8

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.

3036.9

Professional certifications may be submitted as early as ninety (90) calendar days prior to the student's eighteenth birthday but shall not be reviewed by the SEA until all documentation requirements have been met, and shall not take effect prior to the student's eighteenth birthday.

3036.10

Upon confirming receipt of the required professional certifications, the SEA 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, the SEA, 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, the SEA, 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.

3036.11

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.

3036.12

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.

3036.13

The SEA 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.

3036.14

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 the SEA, except that the SEA 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; and

(b) The SEA 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.

3036.15

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.

D.C. Mun. Regs. tit. 5, r. 5-A3036

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