SF 2345

Introduction - 79th Legislature (1995 - 1996)

Posted on 12/15/2009 12:00 a.m.

  1.1                          A bill for an act 
  1.2             relating to education; providing for reimbursement of 
  1.3             school district special education dispute expenses; 
  1.4             amending Minnesota Statutes 1994, section 120.17, by 
  1.5             adding a subdivision; Minnesota Statutes 1995 
  1.6             Supplement, section 120.17, subdivision 3b. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  Minnesota Statutes 1995 Supplement, section 
  1.9   120.17, subdivision 3b, is amended to read: 
  1.10     Subd. 3b.  [PROCEDURES FOR DECISIONS.] Every district shall 
  1.11  utilize at least the following procedures for decisions 
  1.12  involving identification, assessment, and educational placement 
  1.13  of children with a disability: 
  1.14     (a) Parents and guardians shall receive prior written 
  1.15  notice of:  
  1.16     (1) any proposed formal educational assessment or proposed 
  1.17  denial of a formal educational assessment of their child; 
  1.18     (2) a proposed placement of their child in, transfer from 
  1.19  or to, or denial of placement in a special education program; or 
  1.20     (3) the proposed provision, addition, denial or removal of 
  1.21  special education services for their child; 
  1.22     (b) The district shall not proceed with the initial formal 
  1.23  assessment of a child, the initial placement of a child in a 
  1.24  special education program, or the initial provision of special 
  1.25  education services for a child without the prior written consent 
  1.26  of the child's parent or guardian.  The refusal of a parent or 
  2.1   guardian to consent may be overridden by the decision in a 
  2.2   hearing held pursuant to clause (e) at the district's 
  2.3   initiative; 
  2.4      (c) Parents and guardians shall have an opportunity to meet 
  2.5   with appropriate district staff in at least one conciliation 
  2.6   conference, mediation, or other method of alternative dispute 
  2.7   resolution that the parties agree to, if they object to any 
  2.8   proposal of which they are notified pursuant to clause (a).  The 
  2.9   conciliation process or other form of alternative dispute 
  2.10  resolution shall not be used to deny or delay a parent or 
  2.11  guardian's right to a due process hearing.  If the parent or 
  2.12  guardian refuses efforts by the district to conciliate the 
  2.13  dispute with the school district, the requirement of an 
  2.14  opportunity for conciliation or other alternative dispute 
  2.15  resolution shall be deemed to be satisfied.  Notwithstanding 
  2.16  other law, in any proceeding following a conciliation 
  2.17  conference, the school district must not offer a conciliation 
  2.18  conference memorandum into evidence, except for any portions 
  2.19  that describe the district's final proposed offer of service.  
  2.20  Otherwise, with respect to forms of dispute resolution, 
  2.21  mediation, or conciliation, Minnesota Rule of Evidence 408 
  2.22  applies.  The department of children, families, and learning may 
  2.23  reimburse the districts or directly pay the costs of lay 
  2.24  advocates, not to exceed $150 per dispute, used in conjunction 
  2.25  with alternative dispute resolution. 
  2.26     (d) The commissioner shall establish a mediation process to 
  2.27  assist parents, school districts, or other parties to resolve 
  2.28  disputes arising out of the identification, assessment, or 
  2.29  educational placement of children with a disability.  A school 
  2.30  district's request for mediation must be in writing.  The parent 
  2.31  or guardian may refuse a request for mediation.  The mediation 
  2.32  process must be offered as an informal alternative to the due 
  2.33  process hearing provided under clause (e), but must not be used 
  2.34  to deny or postpone the opportunity of a parent or guardian to 
  2.35  obtain a due process hearing. 
  2.36     (e) Parents, guardians, and the district shall have an 
  3.1   opportunity to obtain an impartial due process hearing initiated 
  3.2   and conducted by and in the school district responsible for 
  3.3   assuring that an appropriate program is provided in accordance 
  3.4   with state board rules, if the parent or guardian continues to 
  3.5   object to:  
  3.6      (1) a proposed formal educational assessment or proposed 
  3.7   denial of a formal educational assessment of their child; 
  3.8      (2) the proposed placement of their child in, or transfer 
  3.9   of their child to a special education program; 
  3.10     (3) the proposed denial of placement of their child in a 
  3.11  special education program or the transfer of their child from a 
  3.12  special education program; 
  3.13     (4) the proposed provision or addition of special education 
  3.14  services for their child; or 
  3.15     (5) the proposed denial or removal of special education 
  3.16  services for their child. 
  3.17     Within five business days after the request for a hearing, 
  3.18  or as directed by the hearing officer, the objecting party shall 
  3.19  provide the other party with a brief written statement of 
  3.20  particulars of the objection, the reasons for the objection, and 
  3.21  the specific remedies sought.  The other party shall provide the 
  3.22  objecting party with a written response to the statement of 
  3.23  objections within five business days of receipt of the statement.
  3.24     The hearing shall take place before an impartial hearing 
  3.25  officer mutually agreed to by the school board and the parent or 
  3.26  guardian.  If the school board and the parent or guardian are 
  3.27  unable to agree on a hearing officer, the school board shall 
  3.28  request the commissioner to appoint a hearing officer.  The 
  3.29  hearing officer shall not be a school board member or employee 
  3.30  of the school district where the child resides or of the child's 
  3.31  school district of residence, an employee of any other public 
  3.32  agency involved in the education or care of the child, or any 
  3.33  person with a personal or professional interest which would 
  3.34  conflict with the person's objectivity at the hearing.  A person 
  3.35  who otherwise qualifies as a hearing officer is not an employee 
  3.36  of the district solely because the person is paid by the 
  4.1   district to serve as a hearing officer.  If the hearing officer 
  4.2   requests an independent educational assessment of a child, the 
  4.3   cost of the assessment shall be at district expense.  The 
  4.4   proceedings shall be recorded and preserved, at the expense of 
  4.5   the school district, pending ultimate disposition of the action. 
  4.6      (f) The decision of the hearing officer pursuant to clause 
  4.7   (e) shall be rendered not more than 45 calendar days from the 
  4.8   date of the receipt of the request for the hearing.  A hearing 
  4.9   officer may grant specific extensions of time beyond the 45-day 
  4.10  period at the request of either party.  The decision of the 
  4.11  hearing officer shall be binding on all parties unless appealed 
  4.12  to the hearing review officer by the parent, guardian, or the 
  4.13  school board of the district where the child resides pursuant to 
  4.14  clause (g). 
  4.15     The local decision shall: 
  4.16     (1) be in writing; 
  4.17     (2) state the controlling facts upon which the decision is 
  4.18  made in sufficient detail to apprise the parties and the hearing 
  4.19  review officer of the basis and reason for the decision; 
  4.20     (3) state whether the special education program or special 
  4.21  education services appropriate to the child's needs can be 
  4.22  reasonably provided within the resources available to the 
  4.23  responsible district or districts; 
  4.24     (4) state the amount and source of any additional district 
  4.25  expenditure necessary to implement the decision; and 
  4.26     (5) be based on the standards set forth in subdivision 3a 
  4.27  and the rules of the state board. 
  4.28     (g) Any local decision issued pursuant to clauses (e) and 
  4.29  (f) may be appealed to the hearing review officer within 30 
  4.30  calendar days of receipt of that written decision, by the 
  4.31  parent, guardian, or the school board of the district 
  4.32  responsible for assuring that an appropriate program is provided 
  4.33  in accordance with state board rules. 
  4.34     If the decision is appealed, a written transcript of the 
  4.35  hearing shall be made by the school district and shall be 
  4.36  accessible to the parties involved within five calendar days of 
  5.1   the filing of the appeal.  The hearing review officer shall 
  5.2   issue a final independent decision based on an impartial review 
  5.3   of the local decision and the entire record within 30 calendar 
  5.4   days after the filing of the appeal.  The hearing review officer 
  5.5   shall seek additional evidence if necessary and may afford the 
  5.6   parties an opportunity for written or oral argument; provided 
  5.7   any hearing held to seek additional evidence shall be an 
  5.8   impartial due process hearing but shall be deemed not to be a 
  5.9   contested case hearing for purposes of chapter 14.  The hearing 
  5.10  review officer may grant specific extensions of time beyond the 
  5.11  30-day period at the request of any party. 
  5.12     The final decision shall: 
  5.13     (1) be in writing; 
  5.14     (2) include findings and conclusions; and 
  5.15     (3) be based upon the standards set forth in subdivision 3a 
  5.16  and in the rules of the state board. 
  5.17     (h) The decision of the hearing review officer shall be 
  5.18  final unless appealed by the parent or guardian or school board 
  5.19  to the court of appeals.  The judicial review shall be in 
  5.20  accordance with chapter 14.  
  5.21     (i) The commissioner of children, families, and learning 
  5.22  shall select an individual who has the qualifications enumerated 
  5.23  in this paragraph to serve as the hearing review officer: 
  5.24     (1) the individual must be knowledgeable and impartial; 
  5.25     (2) the individual must not have a personal interest in or 
  5.26  specific involvement with the student who is a party to the 
  5.27  hearing; 
  5.28     (3) the individual must not have been employed as an 
  5.29  administrator by the district that is a party to the hearing; 
  5.30     (4) the individual must not have been involved in the 
  5.31  selection of the administrators of the district that is a party 
  5.32  to the hearing; 
  5.33     (5) the individual must not have a personal, economic, or 
  5.34  professional interest in the outcome of the hearing other than 
  5.35  the proper administration of the federal and state laws, rules, 
  5.36  and policies; 
  6.1      (6) the individual must not have substantial involvement in 
  6.2   the development of a state or local policy or procedures that 
  6.3   are challenged in the appeal; and 
  6.4      (7) the individual is not a current employee or board 
  6.5   member of a Minnesota public school district, education 
  6.6   district, intermediate unit or regional education agency, the 
  6.7   department of children, families, and learning, the state board 
  6.8   of education, or a parent advocacy organization or group.  
  6.9      (j) In all appeals, the parent or guardian of the pupil 
  6.10  with a disability or the district that is a party to the hearing 
  6.11  may challenge the impartiality or competence of the proposed 
  6.12  hearing review officer by applying to the hearing review officer.
  6.13     (k) Pending the completion of proceedings pursuant to this 
  6.14  subdivision, unless the district and the parent or guardian of 
  6.15  the child agree otherwise, the child shall remain in the child's 
  6.16  current educational placement and shall not be denied initial 
  6.17  admission to school. 
  6.18     (l) The child's school district of residence, a resident 
  6.19  district, and providing district shall receive notice of and may 
  6.20  be a party to any hearings or appeals under this subdivision. 
  6.21     (m) A school district is not liable for harmless technical 
  6.22  violations of this subdivision or rules implementing this 
  6.23  subdivision if the school district can demonstrate on a 
  6.24  case-by-case basis that the violations did not harm the 
  6.25  student's educational progress or the parent or guardian's right 
  6.26  to notice, participation, or due process. 
  6.27     (n) Within ten calendar days after appointment, the hearing 
  6.28  officer shall schedule and hold a prehearing conference.  At 
  6.29  that conference, or later, the hearing officer may take any 
  6.30  appropriate action that a court might take under Rule 16 of 
  6.31  Minnesota Rules of Civil Procedure including, but not limited 
  6.32  to, scheduling, jurisdiction, and listing witnesses including 
  6.33  expert witnesses. 
  6.34     (o) A hearing officer or hearing review officer appointed 
  6.35  under this subdivision shall be deemed to be an employee of the 
  6.36  state under section 3.732 for the purposes of section 3.736 only.
  7.1      (p) In order to be eligible for selection, hearing officers 
  7.2   and hearing review officers shall participate in training and 
  7.3   follow procedures as designated by the commissioner. 
  7.4      Sec. 2.  Minnesota Statutes 1994, section 120.17, is 
  7.5   amended by adding a subdivision to read: 
  7.6      Subd. 3e.  [FEES.] After completion of the proceedings 
  7.7   pursuant to subdivision 3b, the school district is entitled to 
  7.8   reimbursement from the department of children, families, and 
  7.9   learning for the expenses incurred in the proceedings if the 
  7.10  school district prevails in the proceedings, and either the 
  7.11  district previously submitted a written request for mediation or 
  7.12  the parties went through the mediation process and the process 
  7.13  was unsuccessful.  The department shall reimburse the district 
  7.14  for at least one-half of the expenses incurred in the 
  7.15  proceedings pursuant to subdivision 3b.  The commissioner shall 
  7.16  adopt a sliding scale for reimbursement amounts based on 
  7.17  district size.