2nd Engrossment - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to education; modifying special education 1.3 provisions; providing for rulemaking; amending 1.4 Minnesota Statutes 1998, sections 125A.09, subdivision 1.5 6; 125A.10; 125A.18; 125A.24; and 125A.75, subdivision 1.6 8; repealing Laws 1998, chapter 398, article 2, 1.7 section 53. 1.8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.9 Section 1. Minnesota Statutes 1998, section 125A.09, 1.10 subdivision 6, is amended to read: 1.11 Subd. 6. [IMPARTIAL DUE PROCESS HEARING.] Parents, 1.12 guardians, and the district must have an opportunity to obtain 1.13 an impartial due process hearing initiated and conducted by and 1.14 in the district responsible for assuring that an appropriate 1.15 program is provided in accordance with state board rules, if the 1.16 parent or guardian continues to object to: 1.17 (1) a proposed formal educational assessment or proposed 1.18 denial of a formal educational assessment of their child; 1.19 (2) the proposed placement of their child in, or transfer 1.20 of their child to a special education program; 1.21 (3) the proposed denial of placement of their child in a 1.22 special education program or the transfer of their child from a 1.23 special education program; 1.24 (4) the proposed provision or addition of special education 1.25 services for their child; or 1.26 (5) the proposed denial or removal of special education 2.1 services for their child. 2.2 A hearing officer may limit an impartial due process 2.3 hearing to an amount of time sufficient for each party to 2.4 present its case. The party requesting the hearing shall plead 2.5 with specificity as to what issues are in dispute and all issues 2.6 not pleaded with specificity are deemed waived. Parties must 2.7 limit evidence to the issues specifically pleaded. A hearing 2.8 officer, at the officer's discretion, may exclude cumulative 2.9 evidence or may encourage parties to present only essential 2.10 witnesses. 2.11 Within five business days after the request for a hearing, 2.12 or as directed by the hearing officer, the objecting party must 2.13 provide the other party with a brief written statement of 2.14 particulars of the objection, the reasons for the objection, and 2.15 the specific remedies sought. The other party shall provide the 2.16 objecting party with a written response to the statement of 2.17 objections within five business days of receipt of the statement. 2.18 The hearing must take place before an impartial hearing 2.19 officer mutually agreed to by the school board and the parent or 2.20 guardian. Within
fourthree business days of the receipt of the 2.21 request for the hearing, if the parties have not agreed on the 2.22 hearing officer, the board must request the commissioner to 2.23 appoint a hearing officer from a list maintained for that 2.24 purpose. If the parties have not agreed upon a hearing officer, 2.25 and the board has not requested that a hearing officer be 2.26 appointed by the commissioner within four business days after 2.27 the receipt of the request, the commissioner shall appoint a 2.28 hearing officer upon the request of either party. A retired 2.29 judge, retired court referee, or retired federal magistrate 2.30 judge who is otherwise qualified under this section and wishes 2.31 to be a hearing officer may be put on the list. The board must 2.32 include with the request the name of the person requesting the 2.33 hearing, the name of the student, the attorneys involved, if 2.34 any, and the date the hearing request was received. The hearing 2.35 officer must not be a board member or employee of the district 2.36 where the child resides or of the child's district of residence, 3.1 an employee of any other public agency involved in the education 3.2 or care of the child, or any person with a personal or 3.3 professional interest that would conflict with the person's 3.4 objectivity at the hearing. A person who otherwise qualifies as 3.5 a hearing officer is not an employee of the district solely 3.6 because the person is paid by the district to serve as a hearing 3.7 officer. Any party to a hearing, except an expedited hearing 3.8 under federal law, may make and serve upon the opposing party 3.9 and the commissioner a notice to remove a hearing officer 3.10 appointed by the commissioner. The notice shall be served and 3.11 filed within two business days after the party receives notice 3.12 of the appointment of the hearing officer by the commissioner. 3.13 No such notice may be filed by a party against a hearing 3.14 officer who has presided at a motion or any other proceeding of 3.15 which the party had notice. A hearing officer who has presided 3.16 at a motion or other proceeding may not be removed except upon 3.17 an affirmative showing of prejudice on the part of the hearing 3.18 officer. 3.19 After the party has once disqualified a hearing officer as 3.20 a matter of right, that party may disqualify the substitute 3.21 hearing officer only by making an affirmative showing of 3.22 prejudice or bias to the commissioner, or to the chief 3.23 administrative law judge if the hearing officer is an 3.24 administrative law judge. 3.25 Upon the filing of a notice to remove or if a party makes 3.26 an affirmative showing of prejudice against a substitute hearing 3.27 officer, the commissioner shall assign any other hearing officer 3.28 to hear the matter. 3.29 If the hearing officer requests an independent educational 3.30 assessment of a child, the cost of the assessment must be at 3.31 district expense. The proceedings must be recorded and 3.32 preserved, at the expense of the school district, pending 3.33 ultimate disposition of the action. 3.34 Sec. 2. Minnesota Statutes 1998, section 125A.10, is 3.35 amended to read: 3.36 125A.10 [COORDINATING INTERAGENCY SERVICES.] 4.1 If at the time of initial referral for an educational 4.2 assessment, or a reassessment, the district determines that a 4.3 child with disabilities who is age 3 through 21 may be eligible 4.4 for interagency services, the district may request that the 4.5 county of residence provide a representative to the initial 4.6 assessment or reassessment team meeting or the first individual 4.7 education plan team meeting following the assessment or 4.8 reassessment. The district may request to have a county 4.9 representative attend other individual education plan team 4.10 meetings when it is necessary to facilitate coordination between 4.11 district and county provided services. Upon request from a 4.12 district, the resident county shall provide a representative to 4.13 assist the individual education plan team in determining the 4.14 child's eligibility for existing health, mental health, or other 4.15 support services administered or provided by the county. The 4.16 individual education plan team and the county representative 4.17 must develop an interagency plan of care for an eligible child 4.18 and the child's family to coordinate services required under the 4.19 child's individual education plan with county services. The 4.20 interagency plan of care must include appropriate family 4.21 information with the consent of the family, a description of how 4.22 services will be coordinated between the district and county, a 4.23 description of service coordinator responsibilities and 4.24 services, and a description of activities for obtaining 4.25 third-party payment for eligible services, including medical 4.26 assistance payments. Any state, county, or city government 4.27 agency responsible for providing services or resources to 4.28 students with disabilities under this section is subject to the 4.29 same dispute resolution systems as local school districts, and 4.30 all such agencies must comply with corrective action 4.31 requirements that ensue from these systems. 4.32 Sec. 3. Minnesota Statutes 1998, section 125A.18, is 4.33 amended to read: 4.34 125A.18 [SPECIAL INSTRUCTION; NONPUBLIC SCHOOLS.] 4.35 No resident of a district who is eligible for special 4.36 instruction and services under this section may be denied 5.1 instruction and service on a shared time basis consistent with 5.2 section 126C.19, subdivision 4, because of attending a nonpublic 5.3 school defined in section 123B.41, subdivision 9. If a resident 5.4 pupil with a disability attends a nonpublic school located 5.5 within the district of residence, the district must provide 5.6 necessary transportation for that pupil within the district 5.7 between the nonpublic school and the educational facility where 5.8 special instruction and services are provided on a shared time 5.9 basis. If a resident pupil with a disability attends a 5.10 nonpublic school located in another district and if no agreement 5.11 exists under section 126C.19, subdivision 1 or 2, for providing 5.12 special instruction and services on a shared time basis to that 5.13 pupil by the district of attendance and where the special 5.14 instruction and services are provided within the district of 5.15 residence, the district of residence must provide necessary 5.16 transportation for that pupil between the boundary of the 5.17 district of residence and the educational facility. The 5.18 district of residence may provide necessary transportation for 5.19 that pupil between its boundary and the nonpublic school 5.20 attended, but the nonpublic school must pay the cost of 5.21 transportation provided outside the district boundary. 5.22 Parties serving students on a shared time basis have access 5.23 to due process hearing system described under United States 5.24 Code, title 20, and the complaint system under Code of Federal 5.25 Regulations, title 34, section 300.660-662. In the event it is 5.26 determined under these systems that the nonpublic school or 5.27 staff impeded the public school district's provision of a free 5.28 appropriate education, the commissioner may withhold public 5.29 funds available to the nonpublic school proportionally 5.30 applicable to that student under section 123B.42. 5.31 Sec. 4. Minnesota Statutes 1998, section 125A.24, is 5.32 amended to read: 5.33 125A.24 [PARENT ADVISORY COMMITTEESCOUNCILS.] 5.34 Provisions of Minnesota Rules, part 3525.1100, regarding5.35 parent advisory committees apply to local boards or cooperative5.36 boards carrying out the provisions of this section.In order to 6.1 increase the involvement of parents of children with 6.2 disabilities in district policy-making and decision-making, 6.3 school districts must have a special education advisory council 6.4 that is incorporated into the district's special education 6.5 system plan. 6.6 (1) This advisory council may be established either for 6.7 individual districts or in cooperation with other districts who 6.8 are members of the same special education cooperative. 6.9 (2) A district may set up this council as a subgroup of an 6.10 existing board, council, or committee. 6.11 (3) At least half of the designated council members must be 6.12 parents of students with a disability. The number of members, 6.13 frequency of meetings, and operational procedures are to be 6.14 locally determined. 6.15 Sec. 5. Minnesota Statutes 1998, section 125A.75, 6.16 subdivision 8, is amended to read: 6.17 Subd. 8. [LITIGATION AND HEARING COSTS.] (a) For fiscal 6.18 year 1999 and thereafter, the commissioner of children, 6.19 families, and learning, or the commissioner's designee, shall 6.20 use state funds to pay school districts for the administrative 6.21 costs of a due process hearing incurred under section 125A.09, 6.22 subdivisions 6, 10, and 11, including hearing officer fees, 6.23 court reporter fees, mileage costs, transcript 6.24 costs, interpreter and transliterator fees, independent 6.25 evaluations ordered by the hearing officer, and rental of 6.26 hearing rooms, but not including district attorney fees. To 6.27 receive state aid under this paragraph, a school district shall 6.28 submit to the commissioner at the end of the school year an 6.29 itemized list of unreimbursed actual costs for fees and other 6.30 expenses under this paragraph. State funds used for aid to 6.31 school districts under this paragraph shall be based on the 6.32 unreimbursed actual costs and fees submitted by a district from 6.33 previous school years. 6.34 (b) For fiscal year 1999 and thereafter, a school district,6.35 to the extent to which it prevails under United States Code,6.36 title 20, section 1415(i)(3)(B)(D) and Rule 68 of the Federal7.1 Rules of Civil Procedure, shall receive state aid equal to 507.2 percent of the total actual cost of attorney fees incurred after7.3 a request for a due process hearing under section 125A.09,7.4 subdivisions 6, 9, and 11, is served upon the parties. A7.5 district is eligible for reimbursement for attorney fees under7.6 this paragraph only if:7.7 (1) a court of competent jurisdiction determines that the7.8 parent is not the prevailing party under United States Code,7.9 title 20, section 1415(i)(3)(B)(D), or the parties stipulate7.10 that the parent is not the prevailing party;7.11 (2) the district has made a good faith effort to resolve7.12 the dispute through mediation, but the obligation to mediate7.13 does not compel the district to agree to a proposal or make a7.14 concession; and7.15 (3) the district made an offer of settlement under Rule 687.16 of the Federal Rules of Civil Procedure.7.17 To receive aid, a school district that meets the criteria7.18 of this paragraph shall submit to the commissioner at the end of7.19 the school year an itemized list of unreimbursed actual attorney7.20 fees associated with a due process hearing under section7.21 125A.09, subdivisions 6, 9, and 11. Aid under this paragraph7.22 for each school district is based on unreimbursed actual7.23 attorney fees submitted by the district from previous school7.24 years.7.25 (c) For fiscal year 1999 and thereafter, a school district7.26 is eligible to receive state aid for 50 percent of the total7.27 actual cost of attorney fees it incurs in appealing to a court7.28 of competent jurisdiction the findings, conclusions, and order7.29 of a due process hearing under section 125A.09, subdivisions 6,7.30 9, and 11. The district is eligible for reimbursement under7.31 this paragraph only if the commissioner authorizes the7.32 reimbursement after evaluating the merits of the case. In a7.33 case where the commissioner is a named party in the litigation,7.34 the commissioner of the bureau of mediation services shall make7.35 the determination regarding reimbursement. The commissioner's7.36 decision is final.8.1 (d)The commissioner shall provide districts with a form on 8.2 which to annually report litigation costs under this section and 8.3 shall base aid estimates on those reports. 8.4 Sec. 6. [SPECIAL EDUCATION RULES.] 8.5 The commissioner shall adopt rules to update Minnesota 8.6 Rules, chapter 3525, for special education. Provisions of this 8.7 chapter that exceed federal requirements are deemed valid for 8.8 the purposes of providing special instruction and services to 8.9 children with a disability. In addition to technical changes, 8.10 corrections, clarifications, and similarly needed revisions, 8.11 specific rules shall be modified or repealed as indicated below: 8.12 (1) to Minnesota Rules, part 3525.0200, add definition of 8.13 caseload; 8.14 (2) revise Minnesota Rules, part 3525.0550, to update role 8.15 of IEP manager; 8.16 (3) repeal Minnesota Rules, part 3525.1100, subpart 2, item 8.17 D, on parent advisory council as duplicative; 8.18 (4) to Minnesota Rules, part 3525.1329, amend eligibility 8.19 criteria for emotional or behavior disorders so that the 8.20 standards reflect severe emotional disorder and professional 8.21 standards; 8.22 (5) amend Minnesota Rules, part 3525.2325, to revise 8.23 outdated standards for students placed for care and treatment to 8.24 be compatible with related legislation; 8.25 (6) amend Minnesota Rules, part 3525.2385, to add a 8.26 provision for variance request for interpreters and 8.27 transliterators; 8.28 (7) repeal Minnesota Rules, part 3525.2550, on conduct 8.29 before assessment except for subpart 2, item C; 8.30 (8) add a rule to make the responsibilities of the IEP team 8.31 for assessment, IEP development, and placement decisions 8.32 consistent with federal requirements; 8.33 (9) repeal Minnesota Rules, part 3525.2750, on educational 8.34 assessment as duplicative; 8.35 (10) repeal Minnesota Rules, part 3525.2900, on IEP 8.36 development and content except for subparts 4 and 5 on regulated 9.1 interventions; and 9.2 (11) repeal Minnesota Rules, part 3525.3300, except item B, 9.3 on contents of notice as duplicative. 9.4 Sec. 7. [REPEALER.] 9.5 Laws 1998, chapter 398, article 2, section 53, is repealed.