POLICY LETTER: November 7, 2012 to Dorene J. Philpot

November 7, 2012Dorene J. PhilpotPhilpot Law Office, P.C.7314 Offats PointeGalveston, Texas 77551Dear Ms. Philpot:This is in response to your letters of March 15, 2011 and August 26, 2011 to the Office of Special Education Programs (OSEP) in the Office of Special Education and Rehabilitative Services at the U.S. Department of Education. I apologize for the delay in responding.In your letters, you indicate your belief that three specific rules found in the Texas Commissioner's Rules pertaining to special education and related services are inconsistent with the Individuals with Disabilities Education Act (IDEA). You indicate that these three rules create additional procedural hurdles or restrictions on families of students with disabilitiesthey are unduly burdensome and are in violation of federal law.The rules you cite and OSEP's responses are listed below:Rule #1: 89.1180. Prehearing Procedures, (i) However, if a party requests a dismissal or nonsuit of a due process hearing after the Disclosure Deadline has passed and at any time within one year thereafter requests a subsequent due process hearing involving the same substantially similar issues as those alleged in the hearing which was dismissed or nonsuited, then, absent good cause or unless the parties agree otherwise, the Disclosure Deadline for the subsequent due process hearing shall be the same date as was established for the hearing that was dismissed or nonsuited.Rule #2: 89.1185. Hearing. (e) Before a document may be offered or admitted intOSEP's Response: On their face, nothing in these rules appears to violate any specific provision of the IDEA requirements regarding due process complaints and due process hearings. In the context of responding to a comment concerning the role of hearing officers in determining a variety of procedural issues, including issues about production of documents and admissibility of evidence in due process hearings, OSEP noted in the Analysis of Comments and Changes to the Part B regulations that: ...States should have considerable latitude in determining appropriate procedural rules for due process hearings as long as they are not inconsistent with the basic elements of due process hearings and rights of the parties set out in the Act and these regulations. The specific application of those procedures to particular cases generally should be left to the discretion of hearing officers who have the knowledge and ability to conduct hearings in accordance with standard legal practice. There is nothing in the Act or these regulations that would prohibit a hearing officer from making determinations on procedural matters not addressed in the Act so long as such determinations are made in a manner that is consistent with a parent's or a public agency's right to a timely due process hearing. 71 FR 46704 (August 14, 2006).Rule #3: 89.1185. Hearing. (p) School districts must provide services ordered by the hearing officer, but may withhold reimbursement during the pendency of appeals.OSEP's Response: Under 34 CFR 300.518(s/ Melody MusgroveMelody Musgrove, Ed.D.DirectorOffice of Special Education Programscc: State Director of Special EducationPage PAGE * MERGEFORMAT 2 Dorene J. Philpot