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Minnesota Legislature

Office of the Revisor of Statutes

125A.56 ALTERNATE INSTRUCTION REQUIRED BEFORE ASSESSMENT
REFERRAL.
    Subdivision 1. Requirement. (a) Before a pupil is referred for a special education evaluation,
the district must conduct and document at least two instructional strategies, alternatives,
or interventions using a system of scientific, research-based instruction and intervention in
academics or behavior, based on the pupil's needs, while the pupil is in the regular classroom. The
pupil's teacher must document the results. A special education evaluation team may waive this
requirement when it determines the pupil's need for the evaluation is urgent. This section may not
be used to deny a pupil's right to a special education evaluation.
    (b) A school district shall use alternative intervention services, including the assurance of
mastery program under section 124D.66, the supplemental early education program under section
124D.081, or an early intervening services program under subdivision 2 to serve at-risk pupils
who demonstrate a need for alternative instructional strategies or interventions.
    Subd. 2. Early intervening services program. (a) A district may meet the requirement
under subdivision 1 by establishing an early intervening services program that includes:
    (1) a system of valid and reliable general outcome measures aligned to state academic
standards that is administered at least three times per year to pupils in kindergarten through
grade 8 who need additional academic or behavioral support to succeed in the general education
environment. The school must provide interim assessments that measure pupils' performance
three times per year and implement progress monitoring appropriate to the pupil. For purposes
of this section, "progress monitoring" means the frequent and continuous measurement of a
pupil's performance that includes these three interim assessments and other pupil assessments
during the school year. A school, at its discretion, may allow pupils in grades 9 through 12 to
participate in interim assessments;
    (2) a system of scientific, research-based instruction and intervention; and
    (3) an organizational plan that allows teachers, paraprofessionals, and volunteers funded
through various sources to work as a grade-level team or use another configuration across
grades and settings to deliver instruction. The team must be trained in scientific, research-based
instruction and intervention. Teachers and paraprofessionals at a site operating under this
paragraph must work collaboratively with those pupils who need additional academic or
behavioral support to succeed in a general education environment.
    (b) As an intervention under paragraph (a), clause (2), staff generating special education
aid under section 125A.76 may provide small group instruction to pupils who need additional
academic or behavioral support to succeed in the general education environment. Small group
instruction that includes pupils with a disability may be provided in the general education
environment if the needs of the pupils with a disability are met, consistent with their individual
education plans, and all pupils in the group receive the same level of instruction and make the
same progress in the instruction or intervention. Teachers and paraprofessionals must ensure that
the needs of pupils with a disability participating in small group instruction under this paragraph
remain the focus of the instruction. Expenditures attributable to the time special education staff
spends providing instruction to nondisabled pupils in this circumstance is eligible for special
education aid under section 125A.76 as an incidental benefit if:
    (1) the group consists primarily of disabled pupils;
    (2) no special education staff are added to meet nondisabled pupils' needs; and
    (3) the primary purpose of the instruction is to implement the individual education plans of
pupils with a disability in this group.
    Expenditures attributable to the time special education staff spends providing small group
instruction to nondisabled pupils that affords more than an incidental benefit to such pupils is not
eligible for special education aid under section 125A.76, except that such expenditures may be
included in the alternative delivery initial aid adjustment under section 125A.78 if the district
has an approved program under section 125A.50. During each 60-day period that a nondisabled
pupil participates in small group instruction under this paragraph, the pupil's progress monitoring
data must be examined to determine whether the pupil is making progress and, if the pupil is not
making progress, the pupil's intervention strategies must be changed or the pupil must be referred
for a special education evaluation.
History: 1989 c 329 art 3 s 21; 1998 c 397 art 2 s 164; art 11 s 3; 1998 c 398 art 2 s
38; 2007 c 146 art 2 s 31