2000 Minnesota Statutes

     125A.09 Procedures for decisions. 

    Subdivision 1.    District obligation.  As defined in 
 this section, every district must use the following procedures 
 for decisions involving identification, assessment, and 
 educational placement of children with a disability. 

    Subd. 2.    Parent notice.  Parents and guardians must 
 receive prior written notice of:  

    (1) any proposed formal educational assessment or proposed 
 denial of a formal educational assessment of their child; 

    (2) a proposed placement of their child in, transfer from 
 or to, or denial of placement in a special education program; or 

    (3) the proposed provision, addition, denial, or removal of 
 special education services for their child. 

    Subd. 3.    Initial action; parent consent.  The 
 district must not proceed with the initial formal assessment 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 or guardian.  The refusal of a parent or guardian to 
 consent may be overridden by the decision in a hearing held 
 pursuant to subdivision 6 at the district's initiative. 

    Subd. 4.    Dispute resolution.  Parents and guardians 
 must have an opportunity to meet with appropriate district staff 
 in at least one conciliation conference, mediation, or other 
 method of alternative dispute resolution that the parties agree 
 to, if they object to any proposal of which they are notified 
 under subdivision 1.  The state intends to encourage parties to 
 resolve disputes through mediation or other form of alternative 
 dispute resolution.  A school district and a parent or guardian 
 must participate in mediation using mediation services 
 acceptable to both parties, unless a party objects to the 
 mediation.  Mediation shall remain available to the parties 
 until a party objects to the mediation, or the mediator 
 determines that further efforts to mediate a dispute are not 
 warranted.  All mediation is subject to the confidentiality 
 requirements under rule 114.08 of the general rules of practice 
 for the district courts.  Alternative dispute resolution must 
 not be used to deny or delay a parent or guardian's right to a 
 due process hearing.  If the parent or guardian refuses efforts 
 by the district to conciliate the dispute with the district, the 
 requirement of an opportunity for conciliation or other 
 alternative dispute resolution must be deemed to be satisfied.  
 Notwithstanding other law, in any proceeding following a 
 conciliation conference, the district must not offer a 
 conciliation conference memorandum into evidence, except for any 
 portions that describe the district's final proposed offer of 
 service.  Otherwise, with respect to forms of dispute 
 resolution, mediation, or conciliation, Minnesota Rule of 
 Evidence 408 applies.  

    Subd. 5.    Mediation.  The commissioner must establish 
 a mediation process to assist parents, districts, or other 
 parties to resolve disputes arising out of the identification, 
 assessment, or educational placement of children with a 
 disability.  The mediation process must be offered as an 
 informal alternative to the due process hearing provided under 
 subdivision 6, but must not be used to deny or postpone the 
 opportunity of a parent or guardian to obtain a due process 
 hearing. 

    Subd. 6.    Impartial due process hearing.  Parents, 
 guardians, and the district must have an opportunity to obtain 
 an impartial due process hearing initiated and conducted by and 
 in the district responsible for assuring that an appropriate 
 program is provided in accordance with department of children, 
 families, and learning rules, if the parent or guardian 
 continues to object to:  

    (1) a proposed formal educational assessment or proposed 
 denial of a formal educational assessment of their child; 

    (2) the proposed placement of their child in, or transfer 
 of their child to a special education program; 

    (3) the proposed denial of placement of their child in a 
 special education program or the transfer of their child from a 
 special education program; 

    (4) the proposed provision or addition of special education 
 services for their child; or 

    (5) the proposed denial or removal of special education 
 services for their child.  

    A hearing officer may limit an impartial due process 
 hearing to an amount of time sufficient for each party to 
 present its case.  The party requesting the hearing shall plead 
 with specificity as to what issues are in dispute and all issues 
 not pleaded with specificity are deemed waived.  Parties must 
 limit evidence to the issues specifically pleaded.  A hearing 
 officer, at the officer's discretion, may exclude cumulative 
 evidence or may encourage parties to present only essential 
 witnesses. 

    Within five business days after the request for a hearing, 
 or as directed by the hearing officer, the objecting party must 
 provide the other party with a brief written statement of 
 particulars of the objection, the reasons for the objection, and 
 the specific remedies sought.  The other party shall provide the 
 objecting party with a written response to the statement of 
 objections within five business days of receipt of the statement.

    The hearing must take place before an impartial hearing 
 officer mutually agreed to by the school board and the parent or 
 guardian.  Within three business days of the receipt of the 
 request for the hearing, if the parties have not agreed on the 
 hearing officer, the board must request the commissioner to 
 appoint a hearing officer from a list maintained for that 
 purpose.  If the parties have not agreed upon a hearing officer, 
 and the board has not requested that a hearing officer be 
 appointed by the commissioner within four business days after 
 the receipt of the request, the commissioner shall appoint a 
 hearing officer upon the request of either party.  A retired 
 judge, retired court referee, or retired federal magistrate 
 judge who is otherwise qualified under this section and wishes 
 to be a hearing officer may be put on the list.  The board must 
 include with the request the name of the person requesting the 
 hearing, the name of the student, the attorneys involved, if 
 any, and the date the hearing request was received.  The hearing 
 officer must not be a board member or employee of the district 
 where the child resides or of the child's district of residence, 
 an employee of any other public agency involved in the education 
 or care of the child, or any person with a personal or 
 professional interest that would conflict with the person's 
 objectivity at the hearing.  A person who otherwise qualifies as 
 a hearing officer is not an employee of the district solely 
 because the person is paid by the district to serve as a hearing 
 officer.  Any party to a hearing, except an expedited hearing 
 under federal law, may make and serve upon the opposing party 
 and the commissioner a notice to remove a hearing officer 
 appointed by the commissioner.  The notice shall be served and 
 filed within two business days after the party receives notice 
 of the appointment of the hearing officer by the commissioner. 

    No such notice may be filed by a party against a hearing 
 officer who has presided at a motion or any other proceeding of 
 which the party had notice.  A hearing officer who has presided 
 at a motion or other proceeding may not be removed except upon 
 an affirmative showing of prejudice on the part of the hearing 
 officer.  

    After the party has once disqualified a hearing officer as 
 a matter of right, that party may disqualify the substitute 
 hearing officer only by making an affirmative showing of 
 prejudice or bias to the commissioner, or to the chief 
 administrative law judge if the hearing officer is an 
 administrative law judge. 

    Upon the filing of a notice to remove or if a party makes 
 an affirmative showing of prejudice against a substitute hearing 
 officer, the commissioner shall assign any other hearing officer 
 to hear the matter. 

    If the hearing officer requests an independent educational 
 assessment of a child, the cost of the assessment must be at 
 district expense.  The proceedings must be recorded and 
 preserved, at the expense of the school district, pending 
 ultimate disposition of the action. 

    Subd. 7.    Hearing officer's decision.  The decision of 
 the hearing officer pursuant to subdivision 6 shall be rendered 
 not more than 45 calendar days from the date of the receipt of 
 the request for the hearing, except that hearing officers are 
 encouraged to accelerate the timeline to 30 days for children 
 birth through two whose needs change rapidly and require quick 
 resolution of complaints.  A hearing officer may not grant 
 specific extensions of time beyond the 45-day period unless 
 requested by either party for good cause shown on the record.  
 Good cause includes the time required for mediation under 
 subdivision 4.  The decision of the hearing officer is binding 
 on all parties unless appealed to the commissioner by the 
 parent; guardian; board of the district where the child resides 
 pursuant to subdivision 9; and also in the case of children 
 birth through two, by the county board. 

    The local decision must: 

    (1) be in writing; 

    (2) state the controlling facts upon which the decision is 
 made in sufficient detail to apprise the parties and the hearing 
 review officer of the basis and reason for the decision; and 

    (3) be based on the standards in section 125A.08 and the 
 rules of the state board. 

    Subd. 8.    Compensatory educational services.  The 
 hearing officer may require the resident school district to 
 provide compensatory educational services to the child if the 
 hearing officer finds that the school district has not offered 
 or made available to the child a free appropriate public 
 education in the child's educational program and that the child 
 has suffered a loss of educational benefit.  Such services shall 
 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 
 shall be based on a present determination of whether the child 
 has suffered a loss of educational benefit. 

    Subd. 9.    Appeal to commissioner.  Any local decision 
 issued pursuant to subdivisions 6 and 7 may be appealed to the 
 commissioner within 30 calendar days of receipt of that written 
 decision, by the parent, guardian, or the board of the district 
 responsible for assuring that an appropriate program is provided 
 in accordance with state board rules.  The appealing party must 
 note the specific parts of the hearing decision being appealed. 

    If the decision is appealed, a written transcript of the 
 hearing must be made by the district and provided by the 
 district to the parties involved and the hearing review officer 
 within five calendar days of the filing of the appeal.  The 
 hearing review officer must conduct an appellate review and 
 issue a final independent decision based on an impartial review 
 of the local decision and the entire record within 30 calendar 
 days after the filing of the appeal.  However, the hearing 
 review officer must seek additional evidence if necessary and 
 may afford the parties an opportunity for written or oral 
 argument.  Any hearing held to seek additional evidence must be 
 an impartial due process hearing but is deemed not to be a 
 contested case hearing for purposes of chapter 14.  The hearing 
 review officer may grant specific extensions of time beyond the 
 30-day period at the request of any party for good cause shown 
 on the record. 

    The final decision must: 

    (1) be in writing; 

    (2) include findings and conclusions; and 

    (3) be based upon the standards in section 125A.08 and in 
 the rules of the state board. 

    Subd. 10.    Appeal to state or federal court.  The 
 decision of the hearing review officer is final unless appealed 
 by the parent or guardian or board to the Minnesota court of 
 appeals or federal district court as provided by federal law.  
 State judicial review must be in accordance with chapter 14.  

    Subd. 11.    Hearing review officer's qualifications.  
 The commissioner must select an individual who has the 
 qualifications enumerated in this subdivision to serve as the 
 hearing review officer: 

    (1) the individual must be knowledgeable and impartial; 

    (2) the individual must not have a personal interest in or 
 specific involvement with the student who is a party to the 
 hearing; 

    (3) the individual must not have been employed as an 
 administrator by the district that is a party to the hearing; 

    (4) the individual must not have been involved in the 
 selection of the administrators of the district that is a party 
 to the hearing; 

    (5) the individual must not have a personal, economic, or 
 professional interest in the outcome of the hearing other than 
 the proper administration of the federal and state laws, rules, 
 and policies; 

    (6) the individual must not have substantial involvement in 
 the development of a state or local policy or procedures that 
 are challenged in the appeal; 

    (7) the individual is not a current employee or board 
 member of a Minnesota public school district, education 
 district, intermediate unit or regional education agency or the 
 department; and 

    (8) the individual is not a current employee or board 
 member of a disability advocacy organization or group. 

    Subd. 12.    Challenging the impartiality or competence of 
 a proposed hearing review officer.  In all appeals, the parent 
 or guardian of the pupil with a disability or the district that 
 is a party to the hearing may challenge the impartiality or 
 competence of the proposed hearing review officer by applying to 
 the hearing review officer. 

    Subd. 13.    Child's educational placement.  Pending the 
 completion of proceedings pursuant to this subdivision, unless 
 the district and the parent or guardian of the child agree 
 otherwise, the child must remain in the child's current 
 educational placement and must not be denied initial admission 
 to school. 

    Subd. 14.    Districts may be parties to a hearing.  The 
 child's district of residence, a resident district, and 
 providing district must receive notice of and may be a party to 
 any hearings or appeals under this section. 

    Subd. 15.    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 the student's educational progress or the parent or 
 guardian's right to notice, participation, or due process. 

    Subd. 16.    Prehearing conference.  Within ten calendar 
 days after appointment, the hearing officer must schedule and 
 hold a prehearing conference.  At that conference, or later, the 
 hearing officer may take any appropriate action a court may take 
 under Rule 16 of Minnesota Rules of Civil Procedure including, 
 but not limited to, scheduling, jurisdiction, and listing 
 witnesses including expert witnesses. 

    Subd. 17.    Hearing officer is state employee.  A 
 hearing officer or hearing review officer appointed under this 
 subdivision is deemed to be an employee of the state under 
 section 3.732 for the purposes of section 3.736 only. 

    Subd. 18.    Hearing officer training.  In order to be 
 eligible for selection, hearing officers and hearing review 
 officers must participate in training and follow procedures as 
 designated by the commissioner. 

    Subd. 19.    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 the conduct of their 
 serious affairs.  The hearing officer must give effect to the 
 rules of privilege recognized by law.  Evidence that is 
 incompetent, irrelevant, immaterial, or unduly repetitious shall 
 be excluded. 

    HIST: Ex1959 c 71 art 1 s 17; 1961 c 559 s 2; 1961 c 690 s 1; 
 1965 c 241 s 1-3; 1967 c 872 s 1; 1969 c 981 s 2-5; 1971 c 689 s 
 1-3; 1973 c 683 s 1,2; 1975 c 162 s 41; 1975 c 321 s 2; 1975 c 
 432 s 8-10; 1976 c 211 s 1-6; 1976 c 271 s 13-18; 1977 c 447 art 
 3 s 1-4; 1977 c 449 s 12; 1978 c 733 s 1; 1978 c 764 s 3-5; 1978 
 c 793 s 61; 1979 c 334 art 2 s 1,2; art 3 s 2,3; 1980 c 509 s 
 30; 1981 c 358 art 1 s 1; art 3 s 2-7; 1982 c 424 s 28,29,130; 
 1982 c 548 art 3 s 1-3; 1983 c 247 s 55; 1983 c 258 s 13; 1983 c 
 314 art 1 s 22; art 3 s 1; 1984 c 463 art 3 s 1; 1984 c 654 art 
 5 s 58; 1Sp1985 c 12 art 3 s 2-8; 1986 c 444; 1987 c 384 art 2 s 
 24; 1987 c 398 art 3 s 2-14; 1988 c 486 s 2-5; 1988 c 629 s 24; 
 1988 c 718 art 3 s 1; art 6 s 2; 1989 c 209 art 2 s 1; 1989 c 
 329 art 3 s 1-3; 1991 c 265 art 3 s 1,2,38; art 11 s 1; 1991 c 
 292 art 6 s 58 subd 2; 1992 c 499 art 3 s 1-7; art 11 s 1; 1993 
 c 224 art 3 s 1-9; art 14 s 3; 1994 c 483 s 1; 1994 c 647 art 3 
 s 2-8,34; 1Sp1995 c 3 art 3 s 1-3; art 16 s 13; 1996 c 412 art 2 
 s 1,2; art 3 s 1-3; 1998 c 397 art 2 s 27,164; art 11 s 3; 1998 
 c 398 art 2 s 10; art 5 s 55; 1999 c 123 s 8,9; 1999 c 241 art 2 
 s 13; art 9 s 29