SF 1800

1st Engrossment - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:23am

A bill for an act
relating to education; clarifying school district obligations to children with
disabilities; authorizing rulemaking; amending Minnesota Statutes 2008, sections
125A.02; 125A.07; 125A.08; 125A.091; 125A.57, subdivision 2; repealing
Minnesota Statutes 2008, sections 121A.43; 125A.05; 125A.18; Minnesota
Rules, parts 3525.0210, subparts 34, 43; 3525.0400; 3525.2445; 3525.4220.

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

Section 1.

Minnesota Statutes 2008, section 125A.02, is amended to read:

125A.02 CHILD WITH A DISABILITY DEFINED.

Subdivision 1.

Child with a disability.

deleted text begin Every child who has deleted text end new text begin Child with a disability
means a child evaluated in accordance with federal and state special education law as
having new text end a hearing impairment, blindness, visual disability, speech or language impairment,
physical disability, other health impairment, mental disability, emotional/behavioral
disorder, specific learning disability, autism, traumatic brain injury, multiple disabilities, or
deaf/blind disability deleted text begin and deleted text end new text begin who, by reason thereof, new text end needs special deleted text begin instruction and deleted text end new text begin education
and related new text end services, as determined by the deleted text begin standards deleted text end new text begin rules new text end of the commissioner, is a
child with a disability. A licensed physician, an advanced practice nurse, or a licensed
psychologist is qualified to make a diagnosis and determination of attention deficit
disorder or attention deficit hyperactivity disorder for purposes of identifying a child
with a disability.

new text begin Subd. 1a. new text end

new text begin Children ages three through seven experiencing developmental
delays. new text end

In addition, every child under age three, and at local district discretion from age
three to age seven, who needs special instruction and services, as determined by the
deleted text begin standards deleted text end new text begin rules new text end of the commissioner, because the child has a substantial delay or has
an identifiable physical or mental condition known to hinder normal development is
a child with a disability.

Subd. 2.

Not a child with a disability.

A child with a short-term or temporary
physical or emotional illness or disability, as determined by the deleted text begin standards deleted text end new text begin rules new text end of the
commissioner, is not a child with a disability.

Sec. 2.

Minnesota Statutes 2008, section 125A.07, is amended to read:

125A.07 deleted text begin RULES OF COMMISSIONER deleted text end new text begin RULEMAKING new text end .

(a) deleted text begin As defined in deleted text end new text begin Consistent with new text end this deleted text begin paragraph deleted text end new text begin section new text end , the commissioner deleted text begin must deleted text end new text begin
shall new text end adopt new text begin new rules and amend existing new text end rules deleted text begin relative to qualifications of essential
personnel, courses of study, methods of instruction, pupil eligibility, size of classes, rooms,
equipment, supervision, parent consultation, and other necessary rules for instruction of
children with a disability. These rules must provide standards and procedures appropriate
for the implementation of and within the limitations of sections 125A.08 and 125A.091.
These rules must also provide standards for the discipline, control, management, and
protection of children with a disability. The commissioner must not adopt rules for pupils
served primarily in the regular classroom establishing either case loads or the maximum
number of pupils that may be assigned to special education teachers. The commissioner, in
consultation with the Departments of Health and Human Services, must adopt permanent
rules for instruction and services for children under age five and their families. These
rules are binding on state and local education, health, and human services agencies. The
commissioner must adopt rules to determine eligibility for special education services. The
rules must include procedures and standards by which to grant variances for experimental
eligibility criteria. The commissioner must, according to section 14.05, subdivision 4,
notify a district applying for a variance from the rules within 45 calendar days of receiving
the request whether the request for the variance has been granted or denied. If a request is
denied, the commissioner must specify the program standards used to evaluate the request
and the reasons for denying the request deleted text end new text begin related to children with disabilities only under
specific authority and consistent with the requirements of chapter 14 and paragraph (c) new text end .

(b) As provided in this paragraph, the state's regulatory scheme should support
schools by assuring that all state special education rules adopted by the commissioner
result in one or more of the following outcomes:

(1) increased time available to teachers and, where appropriate, to support staff
including school nurses for educating students through direct and indirect instruction;

(2) consistent and uniform access to effective education programs for students with
disabilities throughout the state;

(3) reduced inequalities and conflict, appropriate due process hearing procedures
and reduced court actions related to the delivery of special education instruction and
services for students with disabilities;

(4) clear expectations for service providers and for students with disabilities;

(5) increased accountability for all individuals and agencies that provide instruction
and other services to students with disabilities;

(6) greater focus for the state and local resources dedicated to educating students
with disabilities; and

(7) clearer standards for evaluating the effectiveness of education and support
services for students with disabilities.

new text begin (c) Subject to chapter 14, the commissioner may adopt, amend, or rescind a rule
related to children with disabilities if such action is specifically required by federal law.
new text end

Sec. 3.

Minnesota Statutes 2008, section 125A.08, is amended to read:

125A.08 deleted text begin SCHOOL DISTRICT OBLIGATIONS deleted text end new text begin INDIVIDUALIZED
EDUCATION PROGRAMS new text end .

(a) new text begin At the beginning of each school year, each school district shall have in effect, for
each child with a disability, an individualized education program.
new text end

new text begin (b) new text end As defined in this section, every district must ensure the following:

(1) all students with disabilities are provided the special instruction and services
which are appropriate to their needs. Where the individual education plan team has
determined appropriate goals and objectives based on the student's needs, including the
extent to which the student can be included in the least restrictive environment, and where
there are essentially equivalent and effective instruction, related services, or assistive
technology devices available to meet the student's needs, cost to the district may be among
the factors considered by the team in choosing how to provide the appropriate services,
instruction, or devices that are to be made part of the student's individual education plan.
The individual education plan team shall consider and may authorize services covered
by medical assistance according to section 256B.0625, subdivision 26. The student's
needs and the special education instruction and services to be provided must be agreed
upon through the development of an individual education plan. The plan must address
the student's need to develop skills to live and work as independently as possible within
the community. The individual education plan team must consider positive behavioral
interventions, strategies, and supports that address behavior for children with attention
deficit disorder or attention deficit hyperactivity disorder. deleted text begin By deleted text end new text begin During new text end grade 9 deleted text begin or age 14 deleted text end ,
the plan must address the student's needs for transition from secondary services to
postsecondary education and training, employment, community participation, recreation,
and leisure and home living. In developing the plan, districts must inform parents of the
full range of transitional goals and related services that should be considered. The plan
must include a statement of the needed transition services, including a statement of the
interagency responsibilities or linkages or both before secondary services are concluded;

(2) children with a disability under age five and their families are provided special
instruction and services appropriate to the child's level of functioning and needs;

(3) children with a disability and their parents or guardians are guaranteed procedural
safeguards and the right to participate in decisions involving identification, assessment
including assistive technology assessment, and educational placement of children with a
disability;

(4) eligibility and needs of children with a disability are determined by an initial
assessment or reassessment, which may be completed using existing data under United
States Code, title 20, section 33, et seq.;

(5) to the maximum extent appropriate, children with a disability, including those
in public or private institutions or other care facilities, are educated with children who
are not disabled, and that special classes, separate schooling, or other removal of children
with a disability from the regular educational environment occurs only when and to the
extent that the nature or severity of the disability is such that education in regular classes
with the use of supplementary services cannot be achieved satisfactorily;

(6) in accordance with recognized professional standards, testing and evaluation
materials, and procedures used for the purposes of classification and placement of children
with a disability are selected and administered so as not to be racially or culturally
discriminatory; and

(7) the rights of the child are protected when the parents or guardians are not known
or not available, or the child is a ward of the state.

deleted text begin (b) deleted text end new text begin (c) new text end For paraprofessionals employed to work in programs for students with
disabilities, the school board in each district shall ensure that:

(1) before or immediately upon employment, each paraprofessional develops
sufficient knowledge and skills in emergency procedures, building orientation, roles and
responsibilities, confidentiality, vulnerability, and reportability, among other things, to
begin meeting the needs of the students with whom the paraprofessional works;

(2) annual training opportunities are available to enable the paraprofessional to
continue to further develop the knowledge and skills that are specific to the students with
whom the paraprofessional works, including understanding disabilities, following lesson
plans, and implementing follow-up instructional procedures and activities; and

(3) a districtwide process obligates each paraprofessional to work under the ongoing
direction of a licensed teacher and, where appropriate and possible, the supervision of a
school nurse.

Sec. 4.

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

125A.091 ALTERNATIVE DISPUTE RESOLUTION AND DUE PROCESS
HEARINGS.

deleted text begin Subdivision 1. deleted text end

deleted text begin District obligation. deleted text end

deleted text begin A school district must use the procedures in
federal law and state law and rule to reach decisions about 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 end

deleted text begin Subd. 2. deleted text end

deleted text begin Prior written notice. deleted text end

deleted text begin A parent must receive prior written notice
a reasonable time before the district proposes or refuses to initiate or change the
identification, evaluation, educational placement, or the provision of a free appropriate
public education to a child with a disability.
deleted text end

deleted text begin Subd. 3. deleted text end

deleted text begin Content of notice. deleted text end

deleted text begin The notice under subdivision 2 must:
deleted text end

deleted text begin (1) describe the action the district proposes or refuses;
deleted text end

deleted text begin (2) explain why the district proposes or refuses to take the action;
deleted text end

deleted text begin (3) describe any other option the district considered and the reason why it rejected
the option;
deleted text end

deleted text begin (4) describe each evaluation procedure, test, record, or report the district used as a
basis for the proposed or refused action;
deleted text end

deleted text begin (5) describe any other factor affecting the proposal or refusal of the district to take
the action;
deleted text end

deleted text begin (6) state that the parent of a child with a disability is protected by procedural
safeguards and, if this notice is not an initial referral for evaluation, how a parent can get a
description of the procedural safeguards; and
deleted text end

deleted text begin (7) identify where a parent can get help in understanding this law.
deleted text end

deleted text begin Subd. 4. deleted text end

deleted text begin Understandable notice. deleted text end

deleted text begin (a) The written notice under subdivision 2 must
be understandable to the general public and available in the parent's native language or by
another communication form, unless it is clearly not feasible to do so.
deleted text end

deleted text begin (b) If the parent's native language or other communication form is not written,
the district must take steps to ensure that:
deleted text end

deleted text begin (1) the notice is translated orally or by other means to the parent in the parent's
native language or other communication form;
deleted text end

deleted text begin (2) the parent understands the notice; and
deleted text end

deleted text begin (3) written evidence indicates the requirements in subdivision 2 are met.
deleted text end

Subd. 5.

Initial action; parent consent.

(a) The district must not proceed with the
initial evaluation of a child, the initial placement of a child in a special education program,
or the initial provision of special education services for a child without the prior written
consent of the child's parent. A district may not override the written refusal of a parent to
consent to an initial evaluation or reevaluation.

(b) A parent, after consulting with health care, education, or other professional
providers, may agree or disagree to provide the parent's child with sympathomimetic
medications unless section 144.344 applies.

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, mediation,
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.

Subd. 7.

Conciliation conference.

A parent must have an opportunity to meet with
appropriate district staff in at least one conciliation conference if the parent objects to any
proposal of which the parent receives notice under subdivision deleted text begin 2 deleted text end new text begin 3a new text end . If the parent refuses
district efforts to conciliate the dispute, the conciliation requirement is satisfied. Following
a conciliation conference, the district must prepare and provide to the parent a conciliation
conference memorandum that describes the district's final proposed offer of service. This
memorandum is admissible in evidence in any subsequent proceeding.

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 mediation and 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.

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. 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. Mediation is voluntary
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.

Subd. 10.

Mediated agreements.

deleted text begin 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, a party may request mediation and the commissioner must provide a mediator
who conducts a mediation session no later than the third business day after the mediation
request is made to the commissioner. deleted text end new text begin If the parties resolve all or a portion of the dispute,
or agree to use another procedure to resolve the dispute, the mediator shall ensure that the
resolution or agreement is in writing, signed by the parties, and a copy is given to each
party. The written resolution or agreement shall state that all discussions that occurred
during mediation are confidential and may not be used as evidence in any hearing or
civil proceeding. The resolution or agreement is legally binding upon the parties and is
enforceable in the state or federal district court. A party may request another mediation to
resolve a dispute over implementing the mediated agreement.
new text end

Subd. 11.

Facilitated team meeting.

A facilitated team meeting is an IEP, IFSP,
or IIIP team meeting led by an impartial state-provided facilitator to promote effective
communication and assist a team in developing an individualized education plan.

Subd. 12.

Impartial due process hearing.

deleted text begin (a) deleted text end A parent or a district is entitled to
an impartial due process hearing conducted by the state when a dispute arises 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. The hearing must be held in the district responsible for
ensuring that a free appropriate public education is provided according to state and federal
law. The proceedings must be recorded and preserved, at state expense, pending ultimate
disposition of the action. new text begin The parent and the district shall receive, at state expense, a copy
of the hearing transcript or recording and the hearing officer's findings of fact, conclusion
of law, and decisions.
new text end

deleted text begin (b) The due process hearing must be conducted according to the rules of the
commissioner and federal law.
deleted text end

Subd. 13.

Hearing officer qualifications.

deleted text begin The commissioner must appoint an
individual who is qualified under this subdivision to serve as a hearing officer. deleted text end new text begin The
commissioner shall maintain a list of qualified hearing officers who are not employees of
or otherwise under contract with the department or the school district except when under
contract with the department as a hearing officer, and who do not have a personal or
professional interest that conflicts with their objectivity when serving as hearing officers
in hearings under this section. The list shall include a statement of the qualifications of
each person listed. A hearing officer must know and understand state and federal special
education laws, rules, and regulations, and legal interpretations by federal and state courts.
A hearing officer also must have the knowledge and ability to conduct hearings and render
and write decisions according to appropriate, standard legal practice. Upon receipt of a
written request for a hearing, the commissioner shall appoint a hearing officer from the
list. new text end 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 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 employee or board member of a disability advocacy organization
or group.

Subd. 14.

Request for hearing.

deleted text begin A request for a due process hearing must:
deleted text end

deleted text begin (1) be in writing;
deleted text end

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

deleted text begin (3) state, to the extent known, the relief sought.
deleted text end

deleted text begin Any school district administrator receiving a request for a due process hearing
must immediately forward the request to the commissioner. Within two business days of
receiving a request for a due process hearing, the commissioner must appoint a hearing
officer. The commissioner must not deny a request for hearing because the request
is incomplete. A party may disqualify a hearing officer only by affirmatively showing
prejudice or bias to the commissioner or to the chief administrative law judge if the hearing
officer is an administrative law judge. If a party affirmatively shows prejudice against a
hearing officer, the commissioner must assign another hearing officer to hear the matter. deleted text end new text begin (a)
A parent or a school district may file a written request for a due process hearing regarding
a proposal or refusal to initiate or change that child's evaluation, individualized education
program, or educational placement, or to provide a free appropriate public education.
new text end

new text begin (b) The parent shall include in the hearing request the name of the child, the address
of the child's residence, the name of the school the child attends, a description of the
child's problem relating to the proposed or refused initiation or change, including facts
relating to the problem, and a proposed resolution of the problem to the extent known
and available to the parents at the time.
new text end

new text begin (c) A parent or a school district may file a written request for a hearing under United
States Code, title 20, section 1415, paragraph (k).
new text end

new text begin (d) A parent or school district filing a request for a hearing under this subdivision
must provide the request to the other party and a copy of the request to the department.
Upon receiving a request for a hearing, the department shall give to the child's parent a
copy of the procedural safeguards notice available to a parent under federal regulations.
new text end

new text begin (e) (1) If the parent of a child with a disability files a written request for a hearing,
and the school district has not previously sent a written notice to the parent under
subdivision 3, regarding the subject matter of the hearing request, the school district
shall, within ten days of receiving the hearing request, send to the child's parent a written
explanation of why the school district proposed or refused to take the action raised in the
hearing request, a description of other options that the individualized education program
team considered and the reason why those options were rejected, a description of each
evaluation procedure, assessment, record, or report that the school district used as the basis
for the proposed or refused action, and a description of the factors that are relevant to the
school district's proposal or refusal. A response by a school district under this subdivision
does not preclude the school district from asserting that the parent's request for a hearing
is insufficient under clause (2) of this paragraph.
new text end

new text begin (2) A hearing may not occur until the party requesting the hearing files a request that
meets the requirements of paragraph (b). The request under paragraph (b) is considered
sufficient unless the party receiving the request notifies the hearing officer and the other
party in writing within 15 days of receiving the request that the receiving party believes
the request does not meet the requirements of paragraph (b). Within five days of receiving
a notice under this subdivision, the hearing officer shall determine whether the request
meets the requirements under paragraph (b) and notify the parties.
new text end

new text begin (f) Except as provided in paragraph (e), clause (1), the party receiving a request for a
hearing shall send to the party requesting the hearing a written response that addresses the
issues raised in the hearing request within ten days of receiving the request.
new text end

Subd. 15.

Prehearing conference.

A prehearing conference must be held within
five business days of the date the commissioner appoints the hearing officer. The hearing
officer must initiate the prehearing conference which may be conducted in person, at a
location within the district, or by telephone. 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) determine if the hearing can be disposed of without an evidentiary hearing and, if
so, establish the schedule and procedure for doing so; and

(4) establish the management, control, and location of the hearing to ensure its fair,
efficient, and effective disposition.

Subd. 16.

Burden of proof.

The burden of proof at a due process hearing is on the
deleted text begin district to demonstrate, by a preponderance of the evidence, that it is complying with the
law and offered or provided a free appropriate public education to the child in the least
restrictive environment. If the district has not offered or provided a free appropriate public
education in the least restrictive environment and the parent wants the district to pay for a
private placement, the burden of proof is on the parent to demonstrate, by a preponderance
of the evidence, that the private placement is appropriate deleted text end new text begin party seeking relief new text end .

Subd. 17.

Admissible evidence.

The hearing officer may admit all evidence
that possesses probative value, including hearsay, if it is the type of evidence on which
reasonable, prudent persons are accustomed to rely in conducting their serious affairs. The
hearing officer must give effect to the rules of privilege recognized by law and exclude
evidence that is incompetent, irrelevant, immaterial, or unduly repetitious.

Subd. 18.

Hearing officer authority.

(a) A hearing officer must limit an impartial
due process hearing to the time sufficient for each party to present its 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;

(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

(6) ordering an independent educational evaluation of a child at district expense new text begin ; and
new text end

new text begin (7) extending the hearing decision timeline for good cause shown.
new text end

new text begin (c) 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 new text end .

Subd. 19.

Expedited due process hearings.

new text begin Consistent with federal law, new text end a parent
deleted text begin has the right to deleted text end new text begin or a school district may file a written request for new text end an expedited due process
hearing deleted text begin when there is a dispute over a manifestation determination or a proposed or actual
placement in an interim alternative educational setting. A district has the right to an
expedited due process hearing when proposing or seeking to maintain placement in an
interim alternative educational setting deleted text end . A hearing officer must hold an expedited due
process hearing new text begin within 20 school days of the date the expedited due process request is
filed new text end and must issue a decision within ten deleted text begin calendar deleted text end new text begin school new text end days deleted text begin of deleted text end new text begin after new text end the deleted text begin request for a deleted text end
hearing. deleted text begin A hearing officer may extend by up to five additional calendar days the time for
issuing a decision in an expedited due process hearing. All policies in this section apply
to expedited due process hearings to the extent they do not conflict with federal law. deleted text end new text begin A
resolution meeting must occur within seven days of receiving the request for an expedited
due process hearing unless the parent and the school district agree in writing either to
waive the resolution meeting or use the mediation process. The expedited due process
hearing may proceed unless the matter has been resolved to the satisfaction of both parties
within 15 days of receiving the expedited due process hearing request.
new text end

Subd. 20.

Hearing officer's decision; time period.

(a) The hearing officer must
issue a decision within 45 calendar days of the date on which the commissioner receives
the request for a due process hearing. 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. A hearing officer may not extend the time
beyond the 45-day period unless requested by either party for good cause shown on the
record. deleted text begin Extensions of time must not exceed a total of 30 calendar days unless both parties
and the hearing officer agree 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

deleted text begin (b) The hearing officer's decision must:
deleted text end

deleted text begin (1) be in writing;
deleted text end

deleted text begin (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
deleted text end

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

new text begin (b) Once the hearing officer has issued a final decision, the hearing officer lacks
authority to amend the decision except for clerical or mathematical errors.
new text end

new text begin (c) Nothing in this subdivision precludes a hearing officer from ordering a school
district to comply with federal procedural safeguards under the federal Individuals with
Disabilities Education Act.
new text end

Subd. 21.

Compensatory educational services.

The hearing officer may require
the resident or responsible district to provide compensatory educational services to the
child if the hearing officer finds that the district has not offered or made available to
the child a free appropriate public education in the least restrictive environment and the
child suffered a loss of educational benefit. Such services take the form of direct and
indirect special education and related services designed to address any loss of educational
benefit that may have occurred. The hearing officer's finding must be based on a present
determination of whether the child has suffered a loss of educational benefit.

deleted text begin Subd. 22. deleted text end

deleted text begin Child's educational placement during due process hearing. deleted text end

deleted text begin (a) 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 end

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

deleted text begin Subd. 23. deleted text end

deleted text begin Implementation of hearing officer order. deleted text end

deleted text begin (a) That portion of a hearing
officer's decision granting relief requested by the parent must be implemented upon
issuance.
deleted 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

Subd. 24.

Review of hearing officer decisions.

The parent or district may seek
review of the hearing officer's decision in the Minnesota Court of Appeals or in the federal
district court, consistent with federal law. A party must appeal to the Minnesota Court of
Appeals within 60 days of receiving the hearing officer's decision.

Subd. 25.

Enforcement of orders.

The commissioner must monitor final hearing
officer decisions and ensure enforcement of hearing officer deleted text begin orders deleted text end new text begin decisions new text end .

Subd. 26.

Hearing officer and person conducting alternative dispute resolution
are state employees.

A hearing officer or person conducting alternative dispute resolution
under this section is an employee of the state under section 3.732 for purposes of section
3.736 only.

Subd. 27.

Hearing officer training.

A hearing officer must participate in training
deleted text begin and follow procedures established deleted text end new text begin offered new text end by the commissioner.

Subd. 28.

District liability.

A district is not liable for harmless technical violations
of deleted text begin this section or rules implementing this section deleted text end new text begin federal or state laws, rules, or regulations
governing special education new text end if the school district can demonstrate deleted text begin on a case-by-case basis deleted text end
that the violations did not harm a student's educational progress or the parent's right to
notice, participation, or due process. new text begin This subdivision is applicable to due process hearings
and special education complaints filed with the department.
new text end

Sec. 5.

Minnesota Statutes 2008, section 125A.57, subdivision 2, is amended to read:

Subd. 2.

Assistive technology device.

"Assistive technology device" means any
item, piece of equipment, software, or product system, whether acquired commercially off
the shelf, modified, or customized, that is used to increase, maintain, or improve functional
capabilities of deleted text begin children with disabilities deleted text end new text begin a child with a disability. The term does not include
a medical device that is surgically implanted or a replacement of such a device 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. 6. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2008, sections 121A.43; 125A.05; and 125A.18, new text end new text begin are repealed.
new text end

new text begin Minnesota Rules, parts 3525.0210, subparts 34 and 43; 3525.0400; 3525.2445; and
3525.4220, new text end new text begin are repealed.
new text end