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Hearing Tool 54: Subpoenas, and compelling what the district will not hand over

THE RULE

At a due process hearing you have a federal right to compel the attendance of witnesses. Every party has the right to present evidence and to confront, cross-examine, and compel the attendance of witnesses (34 C.F.R. § 300.512(a)(2); 20 U.S.C. § 1415(h)(2)). That is the federal floor, and it is real: the right to compel attendance is part of the hearing rights the statute guarantees.

New York supplies the issuing authority directly. An impartial hearing officer may administer oaths and issue subpoenas in connection with the administrative proceeding (8 NYCRR § 200.5(j)(3)(iv)). The parties also have the opportunity to compel attendance, present evidence, and confront and question witnesses under § 200.5(j)(3)(xii). This is separate from the subpoena authority used in an Education Law § 3214 discipline hearing. Accepted open as of July 25, 2026: § 200.5(j)(3)(iv) confirms issuance but does not itself spell out every service, motion-to-quash, or judicial-enforcement step. Obtain the officer’s directions early and use counsel if enforcement becomes contested.

WHY IT MATTERS

Most of what you need, the district hands over under the records right (H-Tool 51) or discloses on the five-business-day clock (H-Tool 56). The subpoena is for the two things that fall outside that: the witness who will not come, and the record the district says does not exist or will not produce.

The witness who will not come is the more common problem in an ordinary case. The provider who actually delivered, or did not deliver, the services on the IEP; the former teacher who has left the district; the aide who kept the data. If that person will not appear voluntarily and the district will not call them, the right to compel attendance is what can put them in the chair (34 C.F.R. § 300.512(a)(2); 8 NYCRR § 200.5(j)(3)(iv), (xii)). The district carries the burden, but the hearing officer controls the order of presentation, so prepare the witness regardless of which side presents first (H-Tools 58, 62).

The honest limit matters as much as the power. Compulsory process in an administrative hearing is not the open-ended subpoena practice of a civil lawsuit. Section 200.5(j)(3)(iv) confirms that the IHO may issue a subpoena, but the regulation does not set out every service and enforcement step. Naming that limit keeps a parent from spending the case chasing process the forum may not complete on the hearing calendar.