125A.091 Alternative dispute resolution and due process hearings.
Subdivision 1. District obligation. 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.
Subd. 2. Prior written notice. 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.
Subd. 3. Content of notice. The notice under subdivision 2 must:
(1) describe the action the district proposes or refuses;
(2) explain why the district proposes or refuses to take the action;
(3) describe any other option the district considered and the reason why it rejected the option;
(4) describe each evaluation procedure, test, record, or report the district used as a basis for the proposed or refused action;
(5) describe any other factor affecting the proposal or refusal of the district to take the action;
(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
(7) identify where a parent can get help in understanding this law.
Subd. 4. Understandable notice. (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.
(b) If the parent's native language or other communication form is not written, the district must take steps to ensure that:
(1) the notice is translated orally or by other means to the parent in the parent's native language or other communication form;
(2) the parent understands the notice; and
(3) written evidence indicates the requirements in subdivision 2 are met.
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 2. 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. 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.
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. (a) 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.
(b) The due process hearing must be conducted according to the rules of the commissioner and federal law.
Subd. 13. Hearing officer qualifications. The commissioner must appoint an individual who is qualified under this subdivision to serve as a hearing officer. The hearing officer must:
(1) be knowledgeable and impartial;
(2) have no personal interest in or specific involvement with the student who is a party to the hearing;
(3) not have been employed as an administrator by the district that is a party to the hearing;
(4) not have been involved in selecting the district administrator who is a party to the hearing;
(5) have no personal, economic, or professional interest in the outcome of the hearing other than properly administering federal and state laws, rules, and policies;
(6) have no substantial involvement in developing state or local policies or procedures challenged in the hearing;
(7) not be a current 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. A request for a due process hearing must:
(1) be in writing;
(2) describe the nature of the dispute about providing special education services to the student including facts relating to the dispute; and
(3) state, to the extent known, the relief sought.
Any school district administrator receiving a request for a due process hearing 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.
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 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.
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; and
(6) ordering an independent educational evaluation of a child at district expense.
Subd. 19. Expedited due process hearings. A parent has the right to an expedited due process hearing 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. A hearing officer must hold an expedited due process hearing and must issue a decision within ten calendar days of the request for a hearing. 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.
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. 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.
(b) The hearing officer's decision must:
(1) be in writing;
(2) state the controlling and material facts upon which the decision is made in order to apprise the reader of the basis and reason for the decision; and
(3) be based on local standards, state statute, the rules of the commissioner, and federal law.
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.
Subd. 22. Child's educational placement during a due process hearing. (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.
(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.
Subd. 23. Implementation of hearing officer order. (a) That portion of a hearing officer's decision granting relief requested by the parent must be implemented upon issuance.
(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.
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 orders.
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 and follow procedures established by the commissioner.
Subd. 28. District liability. A district is not liable for harmless technical violations of this section or rules implementing this section if the school district can demonstrate on a case-by-case basis that the violations did not harm a student's educational progress or the parent's right to notice, participation, or due process.
Official Publication of the State of Minnesota
Revisor of Statutes