as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am
|Introduction||Posted on 08/14/1998|
1.1 A bill for an act 1.2 relating to education; providing specific reference to 1.3 federal special education requirements; making certain 1.4 specific changes in procedures; providing state aid 1.5 for certain school district litigation costs; 1.6 appropriating money; amending Minnesota Statutes 1994, 1.7 sections 120.17, subdivisions 1, 2, 3, 3a, and 3b; and 1.8 124.32, by adding a subdivision. 1.9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.10 Section 1. Minnesota Statutes 1994, section 120.17, 1.11 subdivision 1, is amended to read: 1.12 Subdivision 1. [SPECIAL INSTRUCTION FOR CHILDREN WITH A 1.13 DISABILITY.] (a) As set out in paragraph (b), to the extent 1.14 required in federal law, every district shall provide special 1.15 instruction and services, either within the district or in 1.16 another district, for children with a disability who are 1.17 residents of the district and who are disabled as set forth in 1.18 section 120.03. 1.19 (b) Notwithstanding any age limits in laws to the contrary, 1.20 special instruction and services must be provided from birth 1.21 until September 1 after the child with a disability becomes 22 1.22 years old but shall not extend beyond secondary school or its 1.23 equivalent, except as provided in section 126.22, subdivision 1.24 2. Local health, education, and social service agencies shall 1.25 refer children under age five who are known to need or suspected 1.26 of needing special instruction and services to the school 1.27 district. Districts with less than the minimum number of 2.1 eligible children with a disability as determined by the state 2.2 board shall cooperate with other districts to maintain a full 2.3 range of programs for education and services for children with a 2.4 disability. This subdivision does not alter the compulsory 2.5 attendance requirements of section 120.101. 2.6 Sec. 2. Minnesota Statutes 1994, section 120.17, 2.7 subdivision 2, is amended to read: 2.8 Subd. 2. [METHOD OF SPECIAL INSTRUCTION.] (a) As set out 2.9 in this subdivision, to the extent required by federal law, 2.10 special instruction and services for children with a disability 2.11 must be based on the assessment and individual education plan. 2.12 The instruction and services may be provided by one or more of 2.13 the following methods: 2.14 (1) in connection with attending regular elementary and 2.15 secondary school classes; 2.16 (2) establishment of special classes; 2.17 (3) at the home or bedside of the child; 2.18 (4) in other districts; 2.19 (5) instruction and services by special education 2.20 cooperative centers established under this section, or in 2.21 another member district of the cooperative center to which the 2.22 resident district of the child with a disability belongs; 2.23 (6) in a state residential school or a school department of 2.24 a state institution approved by the commissioner; 2.25 (7) in other states; 2.26 (8) by contracting with public, private or voluntary 2.27 agencies; 2.28 (9) for children under age five and their families, 2.29 programs and services established through collaborative efforts 2.30 with other agencies; 2.31 (10) for children under age five and their families, 2.32 programs in which children with a disability are served with 2.33 children without a disability; and 2.34 (11) any other method approved by the commissioner. 2.35 (b) Preference shall be given to providing special 2.36 instruction and services to children under age three and their 3.1 families in the residence of the child with the parent or 3.2 primary caregiver, or both, present. 3.3 (c) The primary responsibility for the education of a child 3.4 with a disability shall remain with the district of the child's 3.5 residence regardless of which method of providing special 3.6 instruction and services is used. If a district other than a 3.7 child's district of residence provides special instruction and 3.8 services to the child, then the district providing the special 3.9 instruction and services shall notify the child's district of 3.10 residence before the child's individual education plan is 3.11 developed and shall provide the district of residence an 3.12 opportunity to participate in the plan's development. The 3.13 district of residence must inform the parents of the child about 3.14 the methods of instruction that are available. 3.15 (d) Paragraphs (e) to (i) may be cited as the "blind 3.16 persons' literacy rights and education act." 3.17 (e) The following definitions apply to paragraphs (f) to 3.18 (i). 3.19 "Blind student" means an individual who is eligible for 3.20 special educational services and who: 3.21 (1) has a visual acuity of 20/200 or less in the better eye 3.22 with correcting lenses or has a limited field of vision such 3.23 that the widest diameter subtends an angular distance of no 3.24 greater than 20 degrees; or 3.25 (2) has a medically indicated expectation of visual 3.26 deterioration. 3.27 "Braille" means the system of reading and writing through 3.28 touch commonly known as standard English Braille. 3.29 "Individualized education plan" means a written statement 3.30 developed for a student eligible for special education and 3.31 services pursuant to this section and section 602(a)(20) of part 3.32 A of the Individuals with Disabilities Education Act, United 3.33 States Code, title 20, section 1401(a). 3.34 (f) In developing an individualized education plan for each 3.35 blind student the presumption must be that proficiency in 3.36 Braille reading and writing is essential for the student to 4.1 achieve satisfactory educational progress. The assessment 4.2 required for each student must include a Braille skills 4.3 inventory, including a statement of strengths and deficits. 4.4 Braille instruction and use are not required by this paragraph 4.5 if, in the course of developing the student's individualized 4.6 education program, team members concur that the student's visual 4.7 impairment does not affect reading and writing performance 4.8 commensurate with ability. This paragraph does not require the 4.9 exclusive use of Braille if other special education services are 4.10 appropriate to the student's educational needs. The provision 4.11 of other appropriate services does not preclude Braille use or 4.12 instruction. Instruction in Braille reading and writing shall 4.13 be available for each blind student for whom the 4.14 multidisciplinary team has determined that reading and writing 4.15 is appropriate. 4.16 (g) Instruction in Braille reading and writing must be 4.17 sufficient to enable each blind student to communicate 4.18 effectively and efficiently with the same level of proficiency 4.19 expected of the student's peers of comparable ability and grade 4.20 level. 4.21 (h) The student's individualized education plan must 4.22 specify: 4.23 (1) the results obtained from the assessment required under 4.24 paragraph (f); 4.25 (2) how Braille will be implemented through integration 4.26 with other classroom activities; 4.27 (3) the date on which Braille instruction will begin; 4.28 (4) the length of the period of instruction and the 4.29 frequency and duration of each instructional session; 4.30 (5) the level of competency in Braille reading and writing 4.31 to be achieved by the end of the period and the objective 4.32 assessment measures to be used; and 4.33 (6) if a decision has been made under paragraph (f) that 4.34 Braille instruction or use is not required for the student: 4.35 (i) a statement that the decision was reached after a 4.36 review of pertinent literature describing the educational 5.1 benefits of Braille instruction and use; and 5.2 (ii) a specification of the evidence used to determine that 5.3 the student's ability to read and write effectively without 5.4 Braille is not impaired. 5.5 (i) Instruction in Braille reading and writing is a service 5.6 for the purpose of special education and services under this 5.7 section. 5.8 (j) Paragraphs (e) to (i) shall not be construed to 5.9 supersede any rights of a parent or guardian of a child with a 5.10 disability under federal or state law. 5.11 Sec. 3. Minnesota Statutes 1994, section 120.17, 5.12 subdivision 3, is amended to read: 5.13 Subd. 3. [RULES OF THE STATE BOARD.] (a) As set out in 5.14 this paragraph, but not to exceed the extent required by federal 5.15 law, the state board shall promulgate rules relative to 5.16 qualifications of essential personnel, courses of study, methods 5.17 of instruction, pupil eligibility, size of classes, rooms, 5.18 equipment, supervision, parent consultation, and
anyother rules5.19 it deemsnecessary rules for instruction of children with a 5.20 disability. These rules shall provide standards and procedures 5.21 appropriate for the implementation of and within the limitations 5.22 of subdivisions 3a and 3b. These rules shall also provide 5.23 standards for the discipline, control, management and protection 5.24 of children with a disability. The state board shall not adopt 5.25 rules for pupils served in level 1, 2, or 3, as defined in 5.26 Minnesota Rules, part 3525.2340, establishing either case loads 5.27 or the maximum number of pupils that may be assigned to special 5.28 education teachers. The state board, in consultation with the 5.29 departments of health and human services, shall adopt permanent 5.30 rules for instruction and services for children under age five 5.31 and their families. These rules are binding on state and local 5.32 education, health, and human services agencies. The state board 5.33 shall adopt rules to determine eligibility for special education 5.34 services. The rules shall include procedures and standards by 5.35 which to grant variances for experimental eligibility criteria. 5.36 The state board shall, according to section 14.05, subdivision 6.1 4, notify a district applying for a variance from the rules 6.2 within 45 calendar days of receiving the request whether the 6.3 request for the variance has been granted or denied. If a 6.4 request is denied, the board shall specify the program standards 6.5 used to evaluate the request and the reasons for denying the 6.6 request. 6.7 (b) As provided in this paragraph, but not to exceed the 6.8 extent required by federal law, the state's regulatory scheme 6.9 should support schools by assuring that all state special 6.10 education rules adopted by the state board of education result 6.11 in one or more of the following outcomes: 6.12 (1) increased time available to teachers for educating 6.13 students through direct and indirect instruction; 6.14 (2) consistent and uniform access to effective education 6.15 programs for students with disabilities throughout the state; 6.16 (3) reduced inequalities, conflict, and court actions 6.17 related to the delivery of special education instruction and 6.18 services for students with disabilities; 6.19 (4) clear expectations for service providers and for 6.20 students with disabilities; 6.21 (5) increased accountability for all individuals and 6.22 agencies that provide instruction and other services to students 6.23 with disabilities; 6.24 (6) greater focus for the state and local resources 6.25 dedicated to educating students with disabilities; and 6.26 (7) clearer standards for evaluating the effectiveness of 6.27 education and support services for students with disabilities. 6.28 Sec. 4. Minnesota Statutes 1994, section 120.17, 6.29 subdivision 3a, is amended to read: 6.30 Subd. 3a. [SCHOOL DISTRICT OBLIGATIONS.] As set out in 6.31 this subdivision, to the extent required by federal law, every 6.32 district shall ensure that: 6.33 (1) all students with disabilities are provided the special 6.34 instruction and services which are appropriate to their needs. 6.35 Appropriate education is that which is reasonably calculated to 6.36 result in educational benefit. Cost to the district may be 7.1 considered when determining the instruction and services 7.2 provided to students with disabilities. The student's needs and 7.3 the special education instruction and services to be provided 7.4 shall be agreed upon through the development of an individual 7.5 education plan. The plan shall address the student's need to 7.6 develop skills to live and work as independently as possible 7.7 within the community. By grade 9 or age 14, the plan shall 7.8 address the student's needs for transition from secondary 7.9 services to post-secondary education and training, employment, 7.10 community participation, recreation, and leisure and home 7.11 living. The plan must include a statement of the needed 7.12 transition services, including a statement of the interagency 7.13 responsibilities or linkages or both before secondary services 7.14 are concluded; 7.15 (2) children with a disability under age five and their 7.16 families are provided special instruction and services 7.17 appropriate to the child's level of functioning and needs; 7.18 (3) children with a disability and their parents or 7.19 guardians are guaranteed procedural safeguards and the right to 7.20 participate in decisions involving identification, assessment 7.21 and educational placement of children with a disability; 7.22 (4) to the maximum extent appropriate, children with a 7.23 disability, including those in public or private institutions or 7.24 other care facilities, are educated with children who are not 7.25 disabled, and that special classes, separate schooling, or other 7.26 removal of children with a disability from the regular 7.27 educational environment occurs only when and to the extent that 7.28 the nature or severity of the disability is such that education 7.29 in regular classes with the use of supplementary services cannot 7.30 be achieved satisfactorily; 7.31 (5) in accordance with recognized professional standards, 7.32 testing and evaluation materials, and procedures utilized for 7.33 the purposes of classification and placement of children with a 7.34 disability are selected and administered so as not to be 7.35 racially or culturally discriminatory; and 7.36 (6) the rights of the child are protected when the parents 8.1 or guardians are not known or not available, or the child is a 8.2 ward of the state. 8.3 Sec. 5. Minnesota Statutes 1994, section 120.17, 8.4 subdivision 3b, is amended to read: 8.5 Subd. 3b. [PROCEDURES FOR DECISIONS.] As set out in this 8.6 paragraph, but not to exceed the extent required by federal law, 8.7 every district shall utilize at leastthe following procedures 8.8 for decisions involving identification, assessment, and 8.9 educational placement of children with a disability: 8.10 (a) Parents and guardians shall receive prior written 8.11 notice of: 8.12 (1) any proposed formal educational assessment or proposed 8.13 denial of a formal educational assessment of their child; 8.14 (2) a proposed placement of their child in, transfer from 8.15 or to, or denial of placement in a special education program; or 8.16 (3) the proposed provision, addition, denial or removal of 8.17 special education services for their child ;. 8.18 (b) The district shall not proceed with the initial formal 8.19 assessment of a child, the initial placement of a child in a 8.20 special education program, or the initial provision of special 8.21 education services for a child without the prior written consent 8.22 of the child's parent or guardian. The refusal of a parent or 8.23 guardian to consent may be overridden by the decision in a 8.24 hearing held pursuant to clauseparagraph (e) at the district's 8.25 initiative ;. 8.26 (c) Parents and guardians shall have an opportunity to meet 8.27 with appropriate district staff in at least one conciliation 8.28 conference if they object to any proposal of which they are 8.29 notified pursuant to clauseparagraph (a). The conciliation 8.30 process shall not be used to deny or delay a parent or 8.31 guardian's right to a due process hearing. If the parent or 8.32 guardian refuses efforts by the district to conciliate the 8.33 dispute with the school district, the requirement of an 8.34 opportunity for conciliation shall be deemed to be satisfied ;. 8.35 (d) The commissioner shall establish a mediation process to 8.36 assist parents, school districts, or other parties to resolve 9.1 disputes arising out of the identification, assessment, or 9.2 educational placement of children with a disability. The 9.3 mediation process must be offered as an informal alternative to 9.4 the due process hearing provided under clauseparagraph (e), but 9.5 must not be used to deny or postpone the opportunity of a parent 9.6 or guardian to obtain a due process hearing. 9.7 (e) Subject to paragraph (m), the school district shall 9.8 initiate and conduct a proceeding providing parents, guardians, 9.9 and the district shall havean opportunity to obtain an 9.10 impartial due process hearing initiated and conducted by andin 9.11 the school district responsible for assuring that an appropriate 9.12 program is provided in accordance with state board rules, if the 9.13 parent or guardian continues to object to: 9.14 (1) a proposed formal educational assessment or proposed 9.15 denial of a formal educational assessment of their child; 9.16 (2) the proposed placement of their child in, or transfer 9.17 of their child to a special education program; 9.18 (3) the proposed denial of placement of their child in a 9.19 special education program or the transfer of their child from a 9.20 special education program; 9.21 (4) the proposed provision or addition of special education 9.22 services for their child; or 9.23 (5) the proposed denial or removal of special education 9.24 services for their child. 9.25 At leastWithin five calendar days beforeafter the hearing 9.26 request, the objecting party shall provide the other party with 9.27 a brief written statement of particulars of the objection and, 9.28 the reasons for the objection, and the remedies sought. 9.29 The hearing shall take place before an impartial hearing 9.30 officer mutually agreed to by the school board and the parent or 9.31 guardian. If the school board and the parent or guardian are 9.32 unable to agree on a hearing officer, the school board shall 9.33 request the commissioner to appoint a hearing officer from a 9.34 list maintained for the purpose. A retired judge, court 9.35 referee, or federal magistrate judge who wishes to be available 9.36 for the purpose, must be put on the list. The hearing officer 10.1 shall not be a school board member or employee of the school 10.2 district where the child resides or of the child's school 10.3 district of residence, an employee of any other public agency 10.4 involved in the education or care of the child, or any person 10.5 with a personal or professional interest which would conflict 10.6 with the person's objectivity at the hearing. A person who 10.7 otherwise qualifies as a hearing officer is not an employee of 10.8 the district solely because the person is paid by the district 10.9 to serve as a hearing officer. If the hearing officer requests 10.10 an independent educational assessment of a child, the cost of 10.11 the assessment shall be at district expense. The proceedings 10.12 shall be recorded and preserved, at the expense of the school 10.13 district, pending ultimate disposition of the action. 10.14 (f) The decision of the hearing officer pursuant to clause10.15 paragraph (e) shall be rendered not more than 45 calendar days 10.16 from the date of the receipt of the request for the hearing. A 10.17 hearing officer may grant specific extensions of time beyond the 10.18 45-day period at the request of either party. The decision of 10.19 the hearing officer shall be binding on all parties unless 10.20 appealed to the hearing review officer by the parent, guardian, 10.21 or the school board of the district where the child resides 10.22 pursuant to clauseparagraph (g). 10.23 The local decision shall: 10.24 (1) be in writing; 10.25 (2) state the controlling facts upon which the decision is 10.26 made in sufficient detail to apprise the parties and the hearing 10.27 review officer of the basis and reason for the decision; 10.28 (3) state whether the special education program or special 10.29 education services appropriate to the child's needs can be 10.30 reasonably provided within the resources available to the 10.31 responsible district or districts; 10.32 (4) state the amount and source of any additional district 10.33 expenditure necessary to implement the decision; and 10.34 (5) be based on the standards set forth in subdivision 3a 10.35 and the rules of the state board. 10.36 (g) Any local decision issued pursuant to clauses11.1 paragraphs (e) and (f) may be appealed to the hearing review 11.2 officer within 30 calendar days of receipt of that written 11.3 decision, by the parent, guardian, or the school board of the 11.4 district responsible for assuring that an appropriate program is 11.5 provided in accordance with state board rules. 11.6 If the decision is appealed, a written transcript of the 11.7 hearing shall be made by the school district and shall be 11.8 accessible to the parties involved within five calendar days of 11.9 the filing of the appeal. The hearing review officer shall 11.10 issue a final independent decision based on an impartial review 11.11 of the local decision and the entire record within 30 calendar 11.12 days after the filing of the appeal. The hearing review officer 11.13 shall seek additional evidence if necessary and may afford the 11.14 parties an opportunity for written or oral argument; provided 11.15 any hearing held to seek additional evidence shall be an 11.16 impartial due process hearing but shall be deemed not to be a 11.17 contested case hearing for purposes of chapter 14. The hearing 11.18 review officer may grant specific extensions of time beyond the 11.19 30-day period at the request of any party. 11.20 The final decision shall: 11.21 (1) be in writing; 11.22 (2) include findings and conclusions; and 11.23 (3) be based upon the standards set forth in subdivision 3a 11.24 and in the rules of the state board. 11.25 (h) The decision of the hearing review officer shall be 11.26 final unless appealed by the parent or guardian or school board 11.27 to the court of appeals. The judicial review shall be in 11.28 accordance with chapter 14. 11.29 (i) The commissioner of education shall select an 11.30 individual who has the qualifications enumerated in this 11.31 paragraph to serve as the hearing review officer: 11.32 (1) the individual must be knowledgeable and impartial; 11.33 (2) the individual must not have a personal interest in or 11.34 specific involvement with the student who is a party to the 11.35 hearing; 11.36 (3) the individual must not have been employed as an 12.1 administrator by the district that is a party to the hearing; 12.2 (4) the individual must not have been involved in the 12.3 selection of the administrators of the district that is a party 12.4 to the hearing; 12.5 (5) the individual must not have a personal, economic, or 12.6 professional interest in the outcome of the hearing other than 12.7 the proper administration of the federal and state laws, rules, 12.8 and policies; 12.9 (6) the individual must not have substantial involvement in 12.10 the development of a state or local policy or procedures that 12.11 are challenged in the appeal; and 12.12 (7) the individual is not a current employee or board 12.13 member of a Minnesota public school district, education 12.14 district, intermediate unit or regional education agency, the 12.15 state department of education, the state board of education, or 12.16 a parent advocacy organization or group. 12.17 (j) In all appeals, the parent or guardian of the pupil 12.18 with a disability or the district that is a party to the hearing 12.19 may challenge the impartiality or competence of the proposed 12.20 hearing review officer by applying to the state board of 12.21 education. 12.22 (k) Pending the completion of proceedings pursuant to this 12.23 subdivision, unless the district and the parent or guardian of 12.24 the child agree otherwise, the child shall remain in the child's 12.25 current educational placement and shall not be denied initial 12.26 admission to school. 12.27 (l) The child's school district of residence, a resident 12.28 district, and providing district shall receive notice of and may 12.29 be a party to any hearings or appeals under this subdivision. 12.30 (m) The responsible school district under paragraph (e) may 12.31 waive its right to initiate and conduct a hearing under 12.32 paragraph (e). Then the proceeding under paragraph (g), must be 12.33 conducted as an initial hearing under paragraph (e) subject to 12.34 appeal as provided in paragraph (h). An initial hearing under 12.35 this paragraph must be conducted in the responsible school 12.36 district. 13.1 (n) A school district is not liable for procedural 13.2 violations of this subdivision or rules implementing this 13.3 subdivision that do not harm the student's educational progress. 13.4 (o) A request for a hearing under this section must be 13.5 filed with or by the school district in writing within one year 13.6 of the action or inaction complained of. This limit is not 13.7 suspended under section 541.15, paragraph (a), clause (1), 13.8 unless a parent or guardian of the minor child cannot be found 13.9 or is not available and then only if the child is not a ward of 13.10 the state. 13.11 (p) In any action or due process hearing under this section 13.12 the burden of proof is on the party: 13.13 (1) alleging a violation of this section; 13.14 (2) proposing a formal educational assessment of a child; 13.15 (3) proposing placement of a child in a special education 13.16 program; or 13.17 (4) proposing to change the identification, evaluation, or 13.18 educational placement of the child or the provision of a free 13.19 appropriate public education. 13.20 (q) Within ten calendar days after appointment, the hearing 13.21 officer shall schedule and hold a prehearing conference. The 13.22 hearing officer may take any appropriate action that a court 13.23 might take under Rule 16 of Minnesota Rules of Civil Procedure 13.24 including, but not limited to, scheduling, jurisdiction, 13.25 narrowing issues, and listing witnesses including expert 13.26 witnesses. 13.27 Sec. 6. Minnesota Statutes 1994, section 124.32, is 13.28 amended by adding a subdivision to read: 13.29 Subd. 13. [LITIGATION COSTS.] The state shall pay each 13.30 district 70 percent of litigation expense actually incurred 13.31 under section 120.17, subdivision 3b, paragraphs (e), (g), and 13.32 (h). 13.33 Sec. 7. [APPROPRIATION.] 13.34 $....... in fiscal year 1996 and $....... in fiscal year 13.35 1997 are appropriated from the general fund to the department of 13.36 education for the purposes of section 6.