HF 1700

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 01:53am

A bill for an act
relating to education; modifying the alternative dispute resolution process
and due process hearing guidelines for children with disabilities; amending
Minnesota Statutes 2008, sections 125A.091, subdivisions 6, 8, 9, 10, 13, 14, 15,
18, 20, 22, 23; 125A.43; 125A.46; repealing Minnesota Statutes 2008, section
125A.091, subdivision 19.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 125A.091, subdivision 6, is amended to
read:

Subd. 6.

Dispute resolution processes; generally.

Parties are encouraged to
resolve disputes over the identification, evaluation, educational placement, manifestation
determination, interim alternative educational placement, or the provision of a free
appropriate public education to a child with a disability through conciliation, deleted text begin mediation, deleted text end
facilitated team meetings, or other alternative process. All dispute resolution options are
voluntary on the part of the parent and must not be used to deny or delay the right to a
due process hearing. All dispute resolution processes under this section are provided
at no cost to the parent.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2.

Minnesota Statutes 2008, section 125A.091, subdivision 8, is amended to read:

Subd. 8.

Voluntary dispute resolution options.

In addition to offering at least
one conciliation conference, a district must inform a parent of other dispute resolution
processes, including at least deleted text begin mediation and deleted text end facilitated team meetings. The fact that
an alternative dispute resolution process was used is admissible in evidence at any
subsequent proceeding. State-provided mediators and team meeting facilitators shall not
be subpoenaed to testify at a due process hearing or civil action under federal special
education law nor are any records of mediators or state-provided team meeting facilitators
accessible to the parties.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3.

Minnesota Statutes 2008, section 125A.091, subdivision 9, is amended to read:

Subd. 9.

Mediation.

Mediation is a dispute resolution process that involves a
neutral party provided by the state to assist a parent and a district in resolving disputes over
the identification, evaluation, educational placement, manifestation determination, interim
alternative educational placement, or the provision of a free appropriate public education
to a child with a disability. deleted text begin A mediation process is available as an informal alternative
to a due process hearing but must not be used to deny or postpone the opportunity of a
parent or district to obtain a due process hearing. deleted text end Mediation is deleted text begin voluntary deleted text end new text begin mandatory new text end for all
parties. All mediation discussions are confidential and inadmissible in evidence in any
subsequent proceeding, unless the:

(1) parties expressly agree otherwise;

(2) evidence is otherwise available; or

(3) evidence is offered to prove bias or prejudice of a witness.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 4.

Minnesota Statutes 2008, section 125A.091, subdivision 10, is amended to read:

Subd. 10.

Mediated agreements.

Mediated agreements are not admissible unless
the parties agree otherwise or a party to the agreement believes the agreement is not being
implemented, in which case the aggrieved party may enter the agreement into evidence at
a due process hearing. The parties may request another mediation to resolve a dispute over
implementing the mediated agreement. After a due process hearing is requested, deleted text begin a party
may request mediation and deleted text end the commissioner must provide a mediator who conducts a
mediation session no later than the deleted text begin third deleted text end new text begin tenth new text end business day after the deleted text begin mediation deleted text end new text begin due process
hearing new text end request is made to the commissioner.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 5.

Minnesota Statutes 2008, section 125A.091, subdivision 13, is amended to read:

Subd. 13.

Hearing officer qualifications.

The commissioner must appoint an
individual who is qualified under this subdivision to serve as a hearing officer. The
hearing officer must:

(1) be knowledgeable and impartial;

(2) have no personal interest in or specific involvement with the student who is a
party to the hearing;

(3) not have been employed as an administrator by the district that is a party to
the hearing;

(4) not have been involved in selecting the district administrator who is a party
to the hearing;

(5) have no personal, economic, or professional interest in the outcome of the
hearing other than properly administering federal and state laws, rules, and policies;

(6) have no substantial involvement in developing state or local policies or
procedures challenged in the hearing;

(7) not be a current new text begin or former new text end employee or board member of a Minnesota public
school district, education district, intermediate unit or regional education agency, or the
department if the department is the service provider; and

(8) not be a current new text begin or former new text end employee or board member of a disability advocacy
organization or group.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 6.

Minnesota Statutes 2008, section 125A.091, subdivision 14, is amended to read:

Subd. 14.

Request for hearing.

A request for a due process hearing must:

(1) be in writing;

(2) describe the nature of the dispute about providing special education services to
the student including facts relating to the dispute; and

(3) state, to the extent known, the relief sought.

Any school district administrator receiving a request for a due process hearing deleted text begin must
immediately deleted text end new text begin has ten business days to new text end forward the request to the commissioner. Within
deleted text begin two deleted text end new text begin ten new text end business days of receiving a request for a due process hearing, the commissioner
must deleted text begin appoint a hearing officer deleted text end new text begin initiate mediation, in writing, with the Office of Dispute
Resolution. If the parties do not reach a mediated agreement within ten days of completion
of the mediation, the commissioner must appoint a hearing officer new text end . The commissioner
must not deny a request for hearing because the request is incomplete. A party may
disqualify a hearing officer new text begin or mediator new text end only by affirmatively showing prejudice or bias
to the commissioner or to the chief administrative law judge if the hearing officer new text begin or
mediator new text end is an administrative law judge. If a party affirmatively shows prejudice against
a hearing officer new text begin or mediator new text end , the commissioner must assign another hearing officer new text begin or
mediator new text end to hear the matter.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 7.

Minnesota Statutes 2008, section 125A.091, subdivision 15, is amended to read:

Subd. 15.

Prehearing conference.

A prehearing conference must be held within
deleted text begin five deleted text end new text begin fifteen new text end business days of the date the commissioner appoints the hearing officer. The
hearing officer must initiate the prehearing conference which deleted text begin may deleted text end new text begin must new text end be conducted in
person, at a location within the district deleted text begin , or by telephone deleted text end . The hearing officer must create a
written verbatim record of the prehearing conference which is available to either party
upon request. At the prehearing conference, the hearing officer must:

(1) identify the questions that must be answered to resolve the dispute and eliminate
claims and complaints that are without merit;

(2) set a scheduling order for the hearing and additional prehearing activities;

(3) deleted text begin determine if the hearing can be disposed of without an evidentiary hearing and, if
so, establish the schedule and procedure for doing so; and deleted text end new text begin schedule an evidentiary hearing;
new text end

(4) establish the management, control, and location of the hearing to ensure its fair,
efficient, and effective disposition deleted text begin . deleted text end new text begin ; and
new text end

new text begin (5) order an independent educational evaluation of the child at the department's
expense.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 8.

Minnesota Statutes 2008, section 125A.091, subdivision 18, is amended to read:

Subd. 18.

Hearing officer authority.

(a) A hearing officer deleted text begin must deleted text end new text begin may not new text end limit
deleted text begin an impartial due process hearing to deleted text end the time deleted text begin sufficient for deleted text end each party new text begin has new text end to present
its new text begin complete new text end case.

(b) A hearing officer must establish and maintain control and manage the hearing.
This authority includes, but is not limited to:

(1) requiring attorneys representing parties at the hearing, after notice and an
opportunity to be heard, to pay court reporting and hearing officer costs, or fines payable
to the state, for failing to: (i) obey scheduling or prehearing orders, (ii) appear, (iii) be
prepared, or (iv) participate in the hearing process in good faith;

(2) administering oaths and affirmations;

(3) issuing subpoenas;

(4) determining the responsible and providing districts and joining those districts, if
not already notified, in the proceedings; new text begin and
new text end

(5) making decisions involving identification, evaluation, educational placement,
manifestation determination, interim alternative educational placement, or the provision of
a free appropriate public education to a child with a disability deleted text begin ; and deleted text end new text begin .
new text end

deleted text begin (6) ordering an independent educational evaluation of a child at district expense.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 9.

Minnesota Statutes 2008, section 125A.091, subdivision 20, is amended to read:

Subd. 20.

Hearing officer's decision; time period.

(a) The hearing officer
must issue a decision within deleted text begin 45 deleted text end new text begin 90 new text end calendar days of new text begin completion of new text end the deleted text begin date on which
the commissioner receives the request for a deleted text end due process hearing. deleted text begin A hearing officer is
encouraged to accelerate the time line to 30 days for a child under the age of three whose
needs change rapidly and who requires quick resolution of a dispute. deleted text end A hearing officer
may deleted text begin not deleted text end extend the time beyond the deleted text begin 45-day deleted text end new text begin 90-day new text end period deleted text begin unless requested by either party
for good cause shown on the record deleted text end new text begin provided the hearing officer submits, in writing to the
commissioner, the reasons for the delay new text end . Extensions of time must not exceed a total of
deleted text begin 30 deleted text end new text begin 60 new text end calendar days unless both parties and the hearing officer agree deleted text begin or time is needed
to complete an independent educational evaluation. Good cause includes, but is not
limited to, the time required for mediation or other settlement discussions, independent
educational evaluation, complexity and volume of issues, or finding or changing counsel deleted text end .

(b) The hearing officer's decision must:

(1) be in writing;

(2) state the controlling and material facts upon which the decision is made in order
to apprise the reader of the basis and reason for the decision; and

(3) be based on local standards, state statute, the rules of the commissioner, and
federal law.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 10.

Minnesota Statutes 2008, section 125A.091, subdivision 22, is amended to
read:

Subd. 22.

Child's educational placement during due process hearing.

deleted text begin (a) deleted text end Until a
due process hearing under this section is completed or the district and the parent agree
otherwise, the child must remain in the child's current educational placement and must
not be denied initial admission to school.

deleted text begin (b) Until an expedited due process hearing challenging an interim alternative
educational placement is completed, the child must remain in the interim alternative
educational setting until the decision of the hearing officer or the expiration of the 45 days
permitted for an interim alternative educational setting, whichever occurs first, unless the
parent and district agree otherwise.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 11.

Minnesota Statutes 2008, section 125A.091, subdivision 23, is amended to
read:

Subd. 23.

Implementation of hearing officer order.

deleted text begin (a) deleted text end That portion of a hearing
officer's decision granting relief requested by the parent must new text begin not new text end be implemented deleted text begin upon
issuance deleted text end new text begin until the time to request judicial review under subdivision 24 expires or, if
judicial review is requested, at the time the Minnesota Court of Appeals or the federal
district court issues its decision, whichever is later new text end .

deleted text begin (b) Except as provided under paragraph (a) or the district and parent agree otherwise,
following a hearing officer's decision granting relief requested by the district, the child
must remain in the current educational placement until the time to request judicial review
under subdivision 24 expires or, if judicial review is requested, at the time the Minnesota
Court of Appeals or the federal district court issues its decision, whichever is later.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 12.

Minnesota Statutes 2008, section 125A.43, is amended to read:

125A.43 MEDIATION PROCEDURE.

(a) The commissioner, or the commissioner's designee, of the state lead agency
must use deleted text begin federal deleted text end new text begin department new text end funds to provide mediation for the activities in paragraphs
(b) and (c).

(b) A parent deleted text begin may deleted text end new text begin must attempt to new text end resolve a dispute regarding issues in section
125A.42, paragraph (b), clause (5), through mediation. deleted text begin If the parent chooses mediation,
mediation must be voluntary on the part of the parties. deleted text end The parent and the public agencies
must complete the mediation process within deleted text begin 30 deleted text end new text begin 60 new text end calendar days of the date the Office of
Dispute Resolution receives deleted text begin a parent's deleted text end new text begin the commissioner's new text end written request for mediation.
deleted text begin The mediation process may not be used to delay a parent's right to a due process hearing. deleted text end
The resolution of the mediation is not binding on any party.

(c) Resolution of a dispute through mediation, or other form of alternative dispute
resolution, is not limited to formal disputes arising from the objection of a parent or
guardian and is not limited to the period following a request for a due process hearing.

(d) The commissioner shall provide training and resources to school districts to
facilitate early identification of disputes and access to mediation.

(e) The local primary agency may request mediation on behalf of involved agencies
when there are disputes between agencies regarding responsibilities to coordinate, provide,
pay for, or facilitate payment for early intervention services.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 13.

Minnesota Statutes 2008, section 125A.46, is amended to read:

125A.46 DUE PROCESS HEARINGS.

The procedures for due process hearings and appeals must be the same as those in
section 125A.091. The responsibility for payment of costs and conducting due process
hearings and appeals shall be allocated to the deleted text begin appropriate agency in accordance with
sections 125A.30, 125A.39, and 125A.42 deleted text end new text begin Department of Education new text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 14. new text begin RULEMAKING.
new text end

new text begin The commissioner of education must adopt rules under Minnesota Statutes, section
14.389, consistent with the requirements of Minnesota Statutes, sections 125A.091,
125A.43, and 125A.46. After the rules authorized under this section are initially adopted,
the commissioner shall not amend or repeal these rules nor adopt new rules on the
same topic without specific legislative authorization. These rules must be adopted and
implemented no later than December 1, 2009.
new text end

Sec. 15. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2008, section 125A.091, subdivision 19, new text end new text begin is repealed.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end