D.C. Law 23-204. Students' Right to Home or Hospital Instruction Act of 2020.

D.C. Law 23-204. Students' Right to Home or Hospital Instruction Act of 2020.

AN ACT

To require the District of Columbia Public School system or any individual or group of public charter schools operating under a single charter in the District to adopt and implement a home and hospital instruction program that provides academic instruction and support to students who have been or will be absent from their school of enrollment for 10 or more consecutive or cumulative school days during a school year due to a health condition, to establish an appeals process to be administered by the Office of the State Superintendent Education, and to require the Office of the State Superintendent of Education to promulgate implementing regulations.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Students' Right to Home or Hospital Instruction Act of 2020".

New subchapter IV of Chapter 2 of Title 38

New § 38-251.01

Sec. 2. Definitions.

For the purposes of this act, the term:

(1) "Health condition" means a physical or mental illness, injury, or impairment that prevents a student from participating in the day-to-day activities typically expected during school attendance.

(2) "Home or hospital instruction" means academic instruction and support provided to a student participating in a home and hospital instruction program.

(3) "Home and hospital instruction program" means a program that provides instruction and support to students who have been or are anticipated to be absent, on a continuous, partial, or intermittent basis, from their school of enrollment for 10 or more consecutive or cumulative school days during a school year due to a health condition.

(4) "Home and hospital instruction policy" means a public document written by an LEA that:

(A) Sets forth the process for applying for home or hospital instruction and appealing a denial of eligibility; and

(B) Includes the required contents of a medical certification of need.

(5) "IDEA" means the Individuals with Disabilities Education Act, approved April 13, 1970 (84 Stat. 175; 20 U.S.C. § 1400 et seq.), and its implementing regulations.

(6) "IEP" means an Individualized Education Plan, which is a written plan that specifies special education programs and services to be provided to meet the unique educational needs of a child with a disability, as required under section 614(d) of IDEA (20 U.S.C. § 1414(d)).

(7) "LEA" means local education agency, which is the District of Columbia Public School system or any individual or group of public charter schools operating under a single charter in the District.

(8) "Medical certification of need" means a written statement signed by a licensed physician, licensed nurse practitioner, licensed clinical psychologist, licensed mental health counselor or therapist, or physician's assistant that:

(A) Certifies that a student has been diagnosed with a health condition and explains how the health condition has caused or is anticipated to cause the student to be absent, on a continuous, partial, or intermittent basis, from the student's school of enrollment for 10 or more consecutive or cumulative school days during a school year;

(B) Contains a recommendation that the student receive home or hospital instruction, to the extent permitted by the student's health condition;

(C) States the anticipated duration of the student's health condition; and

(D) States whether the student's health condition is anticipated to cause continuous, partial, or intermittent absence from school.

(9) "Medical recertification of need" means a medical certification of need verifying the continued need for home or hospital instruction.

(10) "OSSE" means the Office of the State Superintendent of Education established by section 2 of the State Education Office Establishment Act of 2000, effective October 21, 2000 (D.C. Law 13-176, D.C. Official Code § 38-2601).

(11) "Parent" means a parent, guardian, or other person who has custody or control of a student enrolled in a school or in an LEA, a student who is 18 years or older, or an emancipated minor.

(12) "Section 504" means section 504 of the Rehabilitation Act of 1973, approved September 26, 1973 (87 Stat. 394; 29 U.S.C. § 794), and its implementing regulations.

(13) "Section 504 Plan" means a written plan that specifies the accommodations and services provided to a student pursuant to Section 504.

New § 38-251.02

Sec. 3. Home and hospital instruction program.

(a) Beginning in school year 2022-2023, every LEA shall adopt and implement a home and hospital instruction program. Such a program shall:

(1) Be designed to promote a participating student's academic progress, allow the student to stay current with classroom instruction in core subjects to the greatest extent possible, foster coordination between the student's classroom teachers and the home or hospital instructors, and facilitate the rapid reintegration into classroom instruction when the student returns to school; and

(2) Ensure coordination of home or hospital instruction with any special education services, IEP, or Section 504 plan the student receives or is eligible to receive and the continued provision of any special education and related services and accommodations to the student.

(b) Every LEA shall designate at least one employee to manage the LEA's home and hospital instruction program.

(c) Nothing in this act shall alter an LEA's obligations under IDEA, Section 504, or the Americans with Disabilities Act of 1990, approved July 26, 1990 (104 Stat. 327; 42 U.S.C. § 12101 et seq.).

New § 38-251.03

Sec. 4. Home or hospital instruction approval process.

(a)(1) A parent of a student may submit an oral or written request for home or hospital

instruction to the LEA in which the student for whom the parent is requesting the instruction is enrolled; provided, that a request may not be granted until the parent submits a written application consistent with the requirements of this subsection.

(2) Upon receipt of a request for home or hospital instruction from a parent of a student enrolled in the LEA, the LEA shall document the request no later than 2 school days following receipt and shall provide information to the parent explaining the process for submitting a written application for home or hospital instruction and obtaining a medical certification of need.

(3) A student shall be approved for home or hospital instruction when the LEA in which the student is enrolled receives a completed written application and medical certification of need. An LEA may deny an application for home or hospital instruction only in the event that the application or a medical certification of need is missing or incomplete. Nothing in this provision shall prohibit an LEA, as part of its review of the application and medical certification, from proposing accommodations to allow the student to remain in school; provided, that the medical professional signing the medical certification of need shall agree in writing that such accommodations meet the medical needs of the student and permit in-school instruction.

(4) Upon approval of an application for home or hospital instruction pursuant to this subsection, the LEA shall commence the delivery of such instruction in accordance with section 7 of this act. During the provision of such instruction, the LEA may make reasonable requests for information concerning the student's continuing medical need for home or hospital instruction and work with a student's parent to develop accommodations or measures that would permit the student to return to school.

(5) OSSE shall promulgate regulations to define what constitutes a completed application and medical certification of need and any other regulations that may be necessary to ensure due deference to the medical opinions set forth in the medical certification of need while facilitating the return of the student to school when medically feasible.

(c)(1) The LEA shall issue a written decision approving or denying a home or hospital instruction program application submitted pursuant to subsection (a) of this section. The decision shall contain a written explanation of the basis for the approval or denial, and if the LEA denies an application, the decision shall state specifically that the basis for its determination was a missing or incomplete application or medical certification of need.

(2) The LEA shall issue the written decision required by paragraph (1) of this subsection no later than 5 days after the receipt of the application for home or hospital instruction.

New § 38-251.04

Sec. 5. Termination or extension of home or hospital instruction.

(a) Except as provided in subsection (b) of this section, a student's home or hospital instruction shall last no longer than the estimated duration of the student's health condition, as provided in the student's medical certification of need, or 60 days, whichever is less.

(b) A parent may extend a student's home or hospital instruction for additional periods of no more than 60 days each by submitting a medical recertification of need at least 5 days before the date on which the parent desires the extension to commence. A medical recertification of need shall not be required to be submitted for home or hospital instruction that occurs during a period of less than 60 days from the date home or hospital instruction commences.

New § 38-251.05

Sec. 6. Mediation and appeals process.

(a) OSSE shall administer an appeals and mediation process for the denial of an application for home or hospital instruction submitted pursuant to section 4 or 5.

(b) A parent has a right to appeal the approval or denial decision made by the LEA. The appeals and mediation process is as follows:

(1) A parent shall submit a written request for an appeal to OSSE within 10 days of receipt of the LEA's written decision. The request for an appeal shall include a copy of the medical certification of need in support of the request for home or hospital instruction and a copy of the LEA's decision, as well as any other information required by OSSE in its published policies.

(2) OSSE shall provide mediation between the LEA and the parent. If the mediation fails to resolve the issues raised by the appeal within 8 school days following receipt of the appeal or such other time as mutually agreed to by the parties, the appeal shall be reviewed by a 3-member appeals panel within OSSE. In the event the matter is referred to the appeals panel, the parent may request an opportunity to be heard before the panel.

(3) The parent shall have the burden of proof on appeal to the appeals panel; provided, that there shall be a presumption in favor of the medical opinion set forth in the medical certification of need submitted in support of the request for home or hospital instruction. The LEA shall have the burden of proof in seeking to rebut this presumption through the submission of evidence from a qualified health care professional.

(4) The appeals panel shall issue a written response to the parent's request for an appeal no later than 10 school days following receipt of the appeal.

(5) The LEA shall implement the decision of the appeals panel no later than 5 days following its issuance.

New § 38-251.06

Sec. 7. Delivery of home or hospital instruction.

(a) An LEA shall begin delivering home or hospital instruction no later than 5 school days following an approval of an application for home or hospital instruction.

(b) An LEA shall provide a minimum number of hours per week of direct instruction for eligible students according to the medical certification of need.

(1) For eligible students absent on an intermittent or partial basis, the LEA may adjust the minimum required amount of direct instruction based on the student's schedule and amount of in-school instruction the student is expected to receive.

(2) For purposes of this subsection, the term "direct instruction" means instruction provided in-person by a home or hospital instructor or, with the consent of the parent, instruction provided by a home or hospital instructor via real-time videotelephony; provided, that an LEA may provide direct instruction via real-time videotelephony without the consent of the parent in the following circumstances:

(A) During a public health emergency;

(B) When the student has been diagnosed with a communicable disease;

(C) When a household member has been diagnosed with a communicable Disease, if the student is to receive instruction at home; or

(D) When the LEA determines safety concerns prevent the delivery of in-person services.

(c) An LEA shall develop a home and hospital instruction program that provides content aligned to that being provided in the student's classroom.

(d) To satisfy the provisions of this section, an LEA may:

(1) Employ staff to provide instructional services to a student;

(2) Contract with private providers to deliver instructional services;

(3) Contract with other LEAs to provide instructional services; or

(4) Combine any of the delivery options described in paragraphs (1) through (3) of this subsection.

New § 38-251.07

Sec. 8. Attendance.

An LEA shall maintain a student receiving home or hospital instruction on the regular attendance roll and count the student as medically excused, except when a student is not available for home or hospital instruction, in which event the student may be counted absent.

New § 38-251.08

Sec. 9. Healthcare institutions.

(a) A healthcare institution that admits a student approved to receive home or hospital instruction under this act shall, consistent with its obligations under federal and state law, cooperate and coordinate with the student's LEA in providing such instruction to the student.

(b) Each healthcare institution referenced in subsection (a) of this section shall establish a point of contact to coordinate home or hospital instruction with the LEA.

New § 38-251.09

Sec. 10. Transparency and accountability.

(a) Every LEA shall publish its written home and hospital instruction policyonline in a reader-friendly format and provide a copy of the home and hospital instruction policy to parents after a request for home or hospital instruction has been made.

(b) On an annual basis, each LEA shall report to OSSE approvals or denials to provide home or hospital instruction made, including the reasons for denial, the name of the individual who provided the medical certification of need, and the type of instruction delivered.

(c) Upon submission of an application for home or hospital instruction, the LEA shall require its home or hospital designee to provide the parent with a notice of their rights as they pertain to IDEA and Section 504, as appropriate.

New § 38-251.10

Sec. 11. Rulemaking authority.

No later than 120 days after the applicability date of this act, OSSE shall promulgate regulations to implement the provisions of this act.

Sec. 12. Applicability.

(a) This act shall apply upon the date of inclusion of its fiscal effect in an approved budget and financial plan.

(b) The Chief Financial Officer shall certify the date of the inclusion of the fiscal effect in an approved budget and financial plan, and provide notice to the Budget Director of the Council of the certification.

(c)(1) The Budget Director shall cause notice of the certification to be published in the District of Columbia Register.

(2) The date of publication of the notice of the certification shall not affect the applicability of this act.

Sec. 13. Fiscal impact statement.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).

Sec. 14. Effective date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of Columbia Register.