Current through Reg. 50, No. 060; March 26, 2024
(1) Purpose. As an
alternative to filing a declaratory judgment action in court against a school
district, a student's parent may request a Special Magistrate be appointed to
address a parent's dispute involving the requirements described in Section
1001.42(8)(c),
F.S. The purpose of this rule is to provide information about the process to
request appointment of a Special Magistrate.
(2) Definitions. In this rule, the terms have
the following meaning:
(a) "Days" means
business days and excludes state, federal and school district
holidays;
(b) "Department" means
the Florida Department of Education;
(c) "Parental Request for Appointment of a
Special Magistrate" or "Parental Request" means the written form adopted by and
incorporated into this rule;
(d)
"Parent" means the definition of that term provided in Section
1000.21, F.S.;
(e) "Parties" means the parent who submitted
a request for appointment of a special magistrate and the school
district;
(f) "Special Magistrate"
means an administrative law judge provided by the Division of Administrative
Hearings under Section
120.65(6),
F.S., or a person appointed by the Commissioner of Education who is a member of
the Florida Bar in good standing with a minimum of five years of administrative
law experience.
(3)
Parental Obligations. In order to request appointment of a special magistrate,
a parent must:
(a) Complete the form entitled
"Parental Request for Appointment of a Special Magistrate;"
(b) Describe the nature of the
dispute;
(c) Describe the
resolution or relief sought at the school and school district level;
(d) Describe the resolution sought from the
special magistrate and the State Board of Education;
(e) Demonstrate that before filing for the
appointment of a special magistrate, resolution of the dispute was sought by
the parent with the student's principal and subsequent to that, resolution was
sought by the parent at the school district level, all in accordance with the
procedures adopted by the school district for resolution of the dispute;
and
(f) Provide and maintain
accurate contact information such as an email address, telephone number and
mailing address for the parent.
(4) School District Obligations. Each school
district must:
(a) Designate at least one
person responsible for responding to Departmental inquiries regarding a request
for appointment of a special magistrate and notify the Department of the name
and email address of the individual;
(b) Within five (5) days of receipt of notice
that a parent has requested the appointment of a special magistrate as
described in subsection (3), provide to the Department a statement addressing
whether any of the grounds for dismissal as described in paragraph (5)(b) of
this rule apply to the parental request for appointment of a special
magistrate; and
(c) Expeditiously
contract for payment of a special magistrate appointed by the Commissioner of
Education and notify the Department within no more than twenty (20) days after
receiving notice of the appointment of a Special Magistrate that an agreement
has been reached for payment with the appointed special magistrate.
(5) Department of Education
Obligations.
(a) Review of "Parental Request
for Appointment of a Special Magistrate." Upon receipt of the form entitled
"Parental Request for Appointment of a Special Magistrate," the Department
will:
1. Review the form and provide an
opportunity for the parent to provide missing or supplemental information
within twenty (20) days of receipt of a Departmental notice that missing or
supplemental information is needed;
2. Notify the school district of receipt of
the Parental Request for Appointment of a Special Magistrate; and
3. Provide written notice to the parent and
school district that the request has been provided to the Commissioner of
Education for consideration or provide notice of dismissal of the Parental
Request.
(b) Dismissal of
Parental Request for Appointment of Special Magistrate by the Department. The
Department will dismiss a Parental Request under the following circumstances:
1. The parent notifies the Department that
the dispute has been resolved or withdrawn;
2. The Parental Request form has not been
substantially completed, after the opportunity to provide missing or
supplemental information has been provided;
3. The parent has not demonstrated full and
complete use of any school and school district procedures adopted by the
district under Section 1001.42(8)(c)7., F.S., for resolving the
dispute;
4. The matter in dispute
falls under the Individuals with Disabilities Education Act, as amended, and
its implementing regulations, or under Section
1003.56, F.S., and rules adopted
by the Department to implement Section
1003.56, F.S., or is otherwise
outside of the scope of the student welfare requirements set forth in Sections
1001.42(8)(c)1.-7., F.S.; or
5. The
parent has failed to maintain accurate contact information with the Department
or the Special Magistrate.
(c) Obligations Post Appointment of Special
Magistrate. Upon appointment of a special magistrate by the Commissioner under
subsection (6) of this rule, the Department will:
1. Provide the parties notice of the
appointment of a Special Magistrate and advise the parties of the following:
a. The name and contact information of the
special magistrate;
b. The time
frame when the special magistrate is expected to provide a written
recommendation to the State Board of Education; and
c. The requirement to maintain accurate
contact information with the Department and the Magistrate;
2. Provide to the Special
Magistrate the following:
a. The Parental
Request and any supplemental information received by the Department upon review
of the Parental Request; and
b. In
order to allow sufficient time for review by the State Board of Education of a
recommendation rendered by the Special Magistrate, the time frame(s) when a
recommended decision is expected to be provided by the Special Magistrate to
the parties and the State Board of Education. This timeframe may be extended by
agreement of the parties.
(6) Commissioner of Education. The
Commissioner of Education will review each pending completed Parental Request
and decide whether to appoint a special magistrate utilizing the following
factors:
(a) Whether there is authority and
the ability to provide effective relief to the parent through the special
magistrate process;
(b) Whether the
parent is seeking or has already sought relief in court;
(c) Whether due to a change in circumstances,
such as a change in a student's school or grade level or a change in procedures
or training, the dispute is moot or not ripe; and
(d) Whether grounds for dismissal of the
Parental Request, as described in paragraph (5)(b) of this rule, are found to
exist.
(7) Special
Magistrate Procedures.
(a) Where an
administrative law judge provided by the Division of Administrative Hearings is
available and assigned to act as the Special Magistrate, proceedings before the
Special Magistrate will be held in accordance with the rules of the Division of
Administrative Hearings, except where inconsistent with this rule or Section
1001.42(8)(c), F.S.
(b) Where a
Division of Administrative Hearings administrative law judge is unavailable or
the Commissioner appoints the Special Magistrate, the following procedures
apply:
1. The special magistrate shall set and
notify all parties of the time and place of the hearings.
2. Any party directly involved in the
proceeding may appear at the hearing with or without counsel or by other
representative.
3. The parties or
the magistrate may call, examine, and cross-examine witnesses and enter
evidence into the record. Witnesses shall be examined under oath. Evidentiary
matters before the special magistrate shall be governed by the Administrative
Procedure Act.
4. The magistrate
may permit the submission of written memorandum by the parties.
(c) Following the close of the
hearing, the Special Magistrate shall prepare a recommended decision,
determining whether a parent has demonstrated a violation of the requirements
of Section 1001.42(8)(c),
F.S., by the school district. The Special Magistrate's recommended decision
shall be based upon the evidence presented and argument made before the special
magistrate. The recommendation shall include findings of fact and
recommendations for resolution of the dispute by the parties.
(d) The Special Magistrate's recommended
decision is due within thirty (30) days of the date a parent request is
received by the special magistrate from the Department. The 30-day time frame
can be extended upon agreement of the parent and school district. A party may
be deemed to have agreed to an extension if unavailable for hearing at the date
and time set or where a party fails to timely respond to scheduling orders
issued by the magistrate.
(8) The following form is incorporated by
reference and may be obtained at
https://www.fldoe.org/schools/k-12-public-schools/:
Parental Request for Appointment of a Special Magistrate, Form No. SM-1 (http://www.flrules.org/Gateway/reference.asp?No=Ref-15892)
(effective September 2023).
Rulemaking Authority 1001.02(1), (2)(n),
1001.42(8)(c)
7.b. FS. Law Implemented 1001.42(8)(c)7.b.
FS.