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ASEC

 8.0 Due Process Procedural Safeguards/Parent Involvement

Due Process Procedures refers to the rights and procedural safeguards afforded to parents and children or students with disabilities under state and federal law. Parents of children or students with disabilities must be provided the opportunity to be involved in all aspects of developing, planning, acquiring, and implementing special education and related services specific to their child. When the natural parent cannot be located, or a court has extinguished all parental rights, the district has an obligation to ensure an individual is appointed to represent the child or student in accordance with state and federal law.

In some cases, parents and districts are not in agreement regarding the identification, evaluation, educational placement or provision of free, appropriate public education (FAPE) to the child or student. Parties are encouraged to resolve disputes over the identification, evaluation, educational placement, manifestation determination, interim alternative educational placement, or the provision of FAPE to a child with a disability through conciliation, mediation, facilitated team meetings, or other alternative process. Among the alternative processes also available for resolving disputes are the special education complaint process and the due process hearing system.

Quick Links:Parent ParticipationAlternative Dispute ResolutionConciliation ConferenceDue Process Hearing
 Dispute ResolutionMediation Process Facilitated Team MeetingDefinition of Parent
 Complaint Filing RequirementsPre-Hearing ActivitiesRefusal of Initial Assessment or Initial PlacementSurrogate Parent
 Parental Right to Withdraw ConsentProcedural Safeguards-Infant and ToddlerIndependent EvaluationTransfer of Parental Rights
 Data PrivacyStay PutExpedited HearingsManifestation Determinations
 Interim Alternative PlacementAttorneys' FeesData PrivacyDestruction of Records
 Identification of ParentReview of Test Protocols  

The districts must have in effect policies that are consistent with State policies established under 34 C.F.R. 300.101 through 300.163 and 300.165 through 300.174. Among those required polices the districts must have a policy to ensure the confidentiality of personally identifiable information, in compliance with 300.610 through 300.626. These policies should be included in the district's comprehensive, documented TSES plan.

Required Policies

Specific policies, procedures and other documentation to demonstrate compliance will be found on each of the fourteen district's policy web page.

8.0 Due Process Procedural Safeguards/Parent Involvement

Legal Citation

As defined in this section, every district must ensure the following:

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

MN Stat. 125A.08(a)(3)

 

Parents of pupils with disabilities have a right to be involved by the school district in the education decision-making process by participating or being afforded the opportunity to participate at each IEP meeting to develop, review, or revise the IEP. At the time of contact, the district shall inform the parents of their right to bring anyone of their choosing to accompany them to the meeting. The district shall inform the pupil's parents about the alternatives and methods of instruction as described in Minnesota Statutes, section 125A.05.

 

MN R. 3525.0700

Each district that is a member of the Area Special Education Cooperative (ASEC) provides representation on the ASEC Special Education Advisory Council.  This council is made up of parents and the director and assistant directors of ASEC.  The purpose of this group is to provide input on district/coop policy-making and provide recommendations on areas of concern. In addition, at least one parent of a child with a disability is a member of each county IEIC committee in which ASEC provides special education services.

8.01 Identification of Parent

8.01.01 Definition of Parent

Legal Citations

Parent means a biological or adoptive parent of a child; a foster parent, unless State Law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent; a guardian generally authorized to act as the child's parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State); an individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare ; or a surrogate parent who has been appointed in accordance with 300.519 or section 639(a)(5) of the Act.

Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (a)(4) of this section to act as the "parent" of a child or to make educational decisions on behalf of a child, then such person or person shall be determined to be the "parent" for purposes of this section.

34 C.F.R. 300.30(a)

 

Minnesota Department of Education

February 2012

Q & A: Identification of Parent for Participation in Special Education Planning for a Child with a Disability

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has developed

this document to address questions raised by parents and school districts regarding identification of a parent.

 

 

8.01.02 Effort to Locate Parent

Reasonable efforts shall be made to locate the parent. These may be made through documented phone calls, letters, certified letters with return receipts, and visits to the parent's last known address.

MN R. 3525.2435

 

The school district must document its attempts to obtain personal consent using the same procedures that are set out in 34 C.F.R. 300.322(d) for parental participation in Individualized Education Plan (IEP) meetings. The recorded documentation my include:

8.01.03 Surrogate Parents

A. When a Surrogate is Required

 

Each district must ensure that the rights of a child are protected when:

  1. No parent (as defined in 300.30) can be identified;

  2. The district, after reasonable efforts, cannot locate a parent;

  3. The child is a ward of the Sate under the laws of that State,; or

  4. The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.1143a(6))

34 C.F.R. 300.519(a)

 

The district shall appoint the surrogate parent when:

the parent, guardian, or conservator is unknown or unavailable;

the pupil is a ward of the commissioner of human services; or

the parent requests in writing the appointment of a surrogate parent. The request may be revoked in writing at any time.


MN R. 3525.2440

 

B. Agency Decision

 

The duty of a public agency under paragraph (a) of this section includes the assignment of an individual to act as a surrogate for the parents. This must include a method for determining whether a child needs a surrogate parent; and for assigning a surrogate parent to the child.

 

34 C.F.R. 300.529(b)

 

C. Selection

 

The public agency may select a surrogate parent in any way permitted under State law. Public agencies must ensure that a person selected as a surrogate parent:

  1. Is not an employee of the SEA, the LEA, or any other agency that is involved in the education or care of the child;

  2. Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and

  3. Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and

  4. Has knowledge and skills that ensure adequate representation of the child

A person otherwise qualified to be a surrogate parent under paragraph (d) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent.

34 C.F.R. 300.519(d)-(e)

In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (d)(2)(i) of this section, until a surrogate can be appointed that meets all of the requirements of paragraph (d) of this section.

34 C.F.R. 300.519(f)

Foster Parent and Surrogate Parent

Sometimes the foster parent is considered to be the "parent." If the foster parent meets all the requirements of the definition of parent, the foster parent is the parent and no surrogate need be appointed.

Sometimes, however, a child in need of a surrogate parent will have both a foster parent and a surrogate parent. When the requirements of "parent" are not met by a foster parent, the school district can appoint the foster parent as the surrogate parent or appoint someone else. The foster parent is often the most logical choice. Whoever the school district appoints has the right to make special education decisions for the child. The foster parent would have all other rights granted them by the placing agency.

 

Minnesota Department of Education

August 2010

Q & A: Parental Consent Requirements for Evaluations, Reevaluation
and Special Education Services

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has

developed this document to address questions raised by parents and school districts regarding

Surrogate Parent requirements.

 

 

D. Surrogate Duties and Skills

The district shall either make the information and training available to the surrogate parent or appoint a surrogate parent who has all of the following:

  1. a knowledge of state and federal requirements;

  2. a knowledge of district structure and procedures;

  3. an understanding of the nature of the pupil's disability and needs; and

  4. an ability to effectively advocate for an appropriate educational program for the pupil.

MN Rule 3525.2455

 

The PACER Center provides a training manual for surrogate parents that can be given to individuals the district identifies as a surrogate parent for a student. PACER also has an on-line training module for surrogate parents.

 

E. Removal of Surrogate

A surrogate parent may be removed by majority vote of the school board. The surrogate parent must be notified of the time and place of the meeting at which a vote is to be taken and of the reasons for the proposed removal. The surrogate parent shall be given the opportunity to be heard. Removal may be for any of the following reasons:

  1. failure to perform the duties required in the team meeting and IEP process and those cited in Code of Federal Regulations, title 34, part 300 and United States Code, title 20, chapter 22, sections 1400 et seq.;

  2. conflict of interest as referenced in Code of Federal Regulations, title 34, section 300.515(c)(2);

  3. actions that threaten the well-being of the assigned pupil; failure to appear to represent the pupil; or

  4. the pupil no longer needs special education and related services.

MN Rule 3525.2340

8.01.04 Transfer of Parental rights at the Age of Majority

A State may provide that, when a child with a disability reaches the age of majority under State law that applies to all students (except for a child with a disability who has been determined to be incompetent under State law:

  1. The public agency must provide any notice required by this part to both the child and the parents; and

  2. all other rights accorded to parents under Part B of the Act transfer to the child;

  3. All rights accorded to parents under Part B of the Act transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and

  4. Whenever a State provides for the transfer of rights the agency shall notify the child and parents of the transfer of rights.

34 C.F.R. 300.520(a)

 

Case managers are required to notify the parents of a child during the IEP year in which the child turns age 17 that the transfer of parental rights will be turned over to the student when turning age 18. This is documented in the IEP and must be indicated on the Prior Written Notice provided to the parents the year prior to this occurring as a part of transition planning.

 

8.02 Notice to Parents

8.02.01 Prior Written Notice

A. When Required

Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or refuses to initiate or change the identification, evaluation or educational placement of the child or the provision of FAPE to the child.

34 C.F.R. 300 503(a)

 

B. Contents of Notice

In addition to federal law requirements, a prior written notice shall:

 

(1) inform the parent that except for the initial placement of a child in special education, the school district will proceed with its proposal for the child's placement or for providing special education services unless the child's parent notifies the district of an objection within 14 days of when the district sends the prior written notice to the parent; and

(2) state that a parent who objects to a proposal or refusal in the prior written notice may request a conciliation conference under subdivision 7 or another alternative dispute resolution procedure under subdivision 8 or 9.

MN Statue 125A.091 subp3

 

C. Notice of Understandable Language

The notice must be :

  1. Written in language understandable to the general public; and

  2. Provided in the native language of the parents, unless it is clearly not feasible to do so;

  3. If the native language or other mode of communication of the parent is not a written language, the public agency or designated service provider, shall 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 more of communication;

    2. The parent understands the notice; and

    3. There is written evidence that the requirements of this paragraph have been met.

  4. If a parent is deaf or blind, or has no written language, the mode of communication must be that normally used by the parent (such as sign language, Braille, or oral communication.

MN Statue 125A.091, subp 4

8.02.02 Procedural Safeguards Notice

A. When Required

A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a year, except that a copy must also be given to the parents:

  1. Upon initial referral or parent request for evaluation;

  2. Upon receipt of the first State compliant and upon receipt of the first due process complaint in a school year;

  3. In accordance with the discipline procedures in 300.530(H); and

  4. Upon request by a parent.

34 C.F.R. 300.504(a)

 

B. Content of Procedural Safeguards Notice

The procedural safeguards notice must include a full explanation of all the procedural safeguards relating:

  1. Independent educational evaluation;

  2. Prior written notice;

  3. Parental consent;

  4. Access to education records;

  5. Opportunity to present and resolve complaints through the due process complaint and State complaint procedures, including:

    1. The time period in which to file a complaint;

    2. The opportunity for the agency to resolve the complaint; and

    3. The difference between the due process complaint and the State complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;

  6. The availability of mediation;

  7. The child's placement during pendency of any due process complaint;

  8. Procedures for students who are subject to placement in an interim alternative educational setting;

  9. Requirements for unilateral placement by parents of children in private schools at public expense;

  10. Hearings on due process complains, including requirements for disclosure of evaluation results and recommendations;

  11. State-level appeals (if applicable in the State);

  12. Civil actions, including the time period in which to file those actions; and

  13. Attorneys' fees.

34 C.F.R. 300.504(c)

C. Other Methods of Delivery

A public agency may place a current copy of the procedural safeguards notice on its Internet Web site if a Web site exists.

34 C.F.R. 300.504(b)

8.02.03 Other Notice Requirements

A. IEP-Parent and Student Participation

Each public agency must take step to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate, including:

  1. Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and

  2. Scheduling the meeting at a mutually agreed on time and place.

The notice required must:

  1. Indicate the purpose, time and location of the meeting and who will be in attendance; and

  2. Inform the parents of the provisions in 300.321(a)(6) and (c) relating to the participation of other individuals in the IEP Team who have knowledge or special expertise about the child, and 300.321 (f) relating to participation of the Part C service coordinator or other representative of the Part C system at the initial IEP Team meeting for a child previously served under Part C of the Act.

For a child with a disability beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the IEP team the notice also must indicate:

  1. That a purpose of the meeting will be the consideration of the postsecondary goals and transition services for the child; and

  2. That the agency will invite the student; and

  3. Identify any other agency that will be invited to send a representative.

34 C.F.R. 300.322(a)-(b)

 

A meeting may be conducted without a parent in attendance if the public agency is unable to convince that parents that they should attend. In this case the public agency must keep a record of its attempts to arrange a mutually agreed on time and place, such as:

  1. Detailed records of telephone calls made or attempted and the results of those calls;

  2. Copies of correspondence sent to the parents and may responses received; and

  3. Detailed records of visits made to the parent's home or place of employment and the results of those visits.

34 C.F.R. 300.322(d)

 

B. Independent Educational Evaluation

Each public agency must provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations.

 

34 C.F.R. 300.502 (a)(2)

Parents may request an IEE be completed at the district's expense however districts are not obligated to complete another evaluation at district expense if they feel the district's evaluation is adequate. When a parent requests an independent education evaluation (IEE), the case manager must immediately inform the Special Education Director or Assistant Director for guidance. The following recommendations should be considered when planning an IEE:

  1. The IEE be limited to an education evaluation.  Medical procedures and diagnosis are not educational determinations.

  2. The IEE be limited to those areas which the parent/guardian has noted specific objection with the District’s evaluation results i.e. specific test scores (achievement and/or ability), OT, speech, observations, etc.

  3. Be educational in focus such that it may yield relevant and meaningful educationally based data in order to best assist the Educational Team in planning for the student’s educational needs.

  4. Be completed by qualified (licensed) educational personnel who may provide a measure of objectivity and who are not employed directly by the District conducting the evaluation.

  5. Be conducted on District campus or at a neutral site if necessary and agreed to by District and parent(s)/guardian(s).

  6. Be least intrusive and minimize disruption to the on-going educational programming.

  7. Be least intrusive and minimize demands on parent/guardian/families.

C. Mediation & Other Alternative Dispute Resolutions

The public agency must inform the parent of any free or low-cost legal and other relevant services available in the area if:

  1. The parent requests the information; or

  2. The parent or the agency files a due process complaint/

34 C.F.R. 300.507 (b)

A brochure is available to provide parents. A request for mediation can occur whenever the parents or the school believe it might help resolve a given dispute. All parties must agree to participate in this voluntary process. A request form must be signed by the parties and sent to the Minnesota Special Education Mediation Service (MNSEMS) office. These forms are available at school district offices, agency offices, at advocacy organizations and public libraries, or will be sent to an interested party by MNSEMS. An attempt to convene a mediation session cannot be used to deny or delay a parent’s right to a due process hearing.

D. Due Process Complaint

 

A party may not have a hearing on a due process complaint until the party, or attorney representing the party, files a due process complaint that meets the requirements of paragraph (b) of this section.

 

34. C.F.R. 300.508(c)

8.02.04 Parent Election for E-Mail Notice

A parent of a child with disability may elect to receive notices by an electronic mail communication if the public agency makes that option possible.

34 C.F.R. 300.505

8.03 Procedural Safeguards Regarding Evaluation and Placement

8.03.01 Parent Participation

The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to:

  1. The identification, evaluation, and educational placement of the child; and

  2. The Provision of FAPE to the child.

Each public agency must provide notice to ensure that parents of children with disabilities have the opportunity to participate in meetings . A meeting does not include informal or unscheduled conversations involving public agency personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

34 C.F.R. 300.501(b)

 

Minnesota Department of Education

March 3 2009

Q & A: Conducting IEP Meetings over the Telephone for Children in Care and Treatment Facilities

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has developed

this document to address questions raised by parents and school districts regarding conducting IEP meetings over the phone.

 

 

 

A. Determination of Needed Evaluation Data

As part of an initial evaluation (if appropriate) and as part of any reevaluation, the IEP Team and other qualified professionals, as appropriate, must:

  1. Review existing evaluation data on the child, including:

    1. Evaluations and information provided by the parents of the child;

    2. Current classroom-based local or State assessments and classroom-based observations; and

    3. Observations by teachers and related services providers; and

  2. On the basis of that review, and input from the child's parents, identify what additional data, if any are needed to determine:

    1. Whether the child is a child with a disability, and the educational needs of the child; or

    2. In case of a reevaluation of a child, whether the child continues to have such a disability and the educational needs of the child; or In case of a reevaluation of a child, whether the child continues to have such a disability;

    3. The present levels of academic achievement and related developmental needs of the chid;

    4. Whether the child needs special education and related services; or

    5. In the case of a reevaluation of a child, whether the child continues to need special education and related services; and

    6. Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum.

  3. The group may conduct its review without a meeting.

34 C.F.R. 300.305(a)-(b)

B. Team Members

Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions on the educational placement of the parent's child. In implementing the requirements of this section, the public agency must use procedures consistent with the procedures described in 300.322(a) through (b)(1).

If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their child, the public agency must use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.

A placement decision may be made buy a group without the involvement of a parent, if the public agency is unable to obtain the parent's participation in the decision. In this case, the public agency must have a record of its attempt to ensure their involvement.

34 C.F.R. 300.501(c)

The determination of whether a child suspected of having a specific learning disability is a child with a disability as defined in 300.8, must be made by the child's parents and a team of qualified professionals, which must include:

  1. The child's regular teacher; or

  2. If the child does not have a regular teacher, a regular classroom teacher qualified to teach a child of his or her age; or

  3. For a child of less than school age, an individual qualified by the SEA to teach a child of his or her age; and

  4. At least one person qualified to conduct individual diagnostic examinations of children, such as school psychologist, speech-language pathologist, or remedial reading teacher.

34 C.F.R.300.308

 

Parents of children with disabilities have a right to be involved by the school district in the education decision-making process by participating or being afforded the opportunity to examine all records relating to their child.  Parents must also be afforded the opportunity to participate in meetings regarding the identification, evaluation, and education placement of their child. Parents are also key members of the team at each IEP/IFSP meeting to develop, review, or revise the IEP/IFSP.  At the time of contact, the district shall inform the parents of their right to bring anyone of their choosing to accompany them to the meeting.  The case manager must document all attempts to include parents at any of the meetings involving their child.  The district shall inform the pupil's parents about the alternatives and methods of instruction available.

 

It is important for teams to be aware of the due process timelines and how critical it is to meet the timeline. Teams often will reschedule meetings so that parents can attend, however the team MUST meet to make a determination of eligibility for special education services or to write an annual plan within the timelines stated in law. When parents are unable to meet by the timeline, inform the parent that the team will meet to determine eligibility and/or write a draft IEP. Offer the parent the options of participating by phone, if possible seek any parent input prior to the meeting and offer to speak or meet with the parent at a later time to go over the eligibility or IEP.

 

Minnesota Department of Education

August 9, 2010

Q & A: Individual Education Plan (IEP) Team Meeting Attendance

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has developed

this document to address questions raised by parents and school districts regarding team meeting attendance.

 

 

 

 

Minnesota Department of Education

June, 2009

Q & A: Individual Education Program (IEP) Team Attendance-Regular Education Teachers & Related Service Professionals

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has developed

this document to address questions raised by parents and school districts regarding IEP team attendance of regular education teachers and related service professional.

 

 

 

C. Determination of Eligibility

1. Evaluation Report and Documentation

Upon completion of the administration of assessments and other evaluation measures:

  1. A group of qualified professionals and the parent of the child determines whether the child is a child with a disability and the educational needs of the child; and

  2. The public agency provides a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.

34 C.F.R. 300.306(a)

 

2. Written Report for a Child Suspected of Having a Learning Disability

Each group member must certify in writing whether the report reflects the member's conclusion. If it does not reflect the member's conclusion, the group member must submit a separate statement presenting the member's conclusions.

 

34 C.F.R. 300.311(b)

 

D. Procedures for Determining Eligibility and Placement

 

In interpreting evaluation data for the purpose of determining if a child is a child with a disability and the educational needs of the child, each public agency must:

  1. Draw upon information from a variety of sources, including aptitude and achievement tests, parent input and teacher recommendations, as well as information about the child's physical condition, social or cultural background and adaptive behavior; and

  2. Ensure that information obtained from all of these sources is documented and carefully considered.

34 C.F.R. 300.306Oc)(1)

 

E. Reevaluation

A public agency must ensure that a reevaluation of each child with a disability is conducted if the child's parent or teacher requests a reevaluation.

 

34 C.F.R. 300 303(a)(2)

 

A reevaluation may occur not more than once a year, unless the parent and the public agency agree otherwise; and must occur at least one every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary.

 

34 C.F.R. 300.303(b)

8.03.02 Parental Right to Withdraw Consent

 

Minnesota Department of Education

January 1, 2009

Q & A: Revocation of Parental Consent for the Provision of Special Education Services

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has developed

this document to address questions raised by parents and school districts regarding revocation of parental consent for the provision of special education services.

 

 

 

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.

 

MN Statue 125A, subd 5

A parent has the right to withdraw consent for a behavior intervention plan at any time by notifying the program administrator or designee and the district must stop the procedure immediately. After parental consent is withdrawn and the procedure is stopped, the school must send written acknowledgment to the parent and request parental signature. If a parent's signature to withdraw consent cannot be obtained, the district must document its efforts to communicate and obtain the signature. Parents must be contacted within three school days to determine the need to convene the IEP team to consider a change in program or placement.

 

MN Rule 3525.2900, subp 5(E)

8.03.03 Parents' Right to Examine Records

The parents of a child with a disability must be afforded tan opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the child; and the provision of FAPE to the child.

 34 C.F.R. 300.501(a)

8.04 Right to an Independent Educational Evaluation

Legal Citation

The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.

Each district must provide to parents, upon request for an independent educational evaluation, information about where an independent education evaluation may be obtained, and the agency criteria applicable for independent education evaluations.

34 C.F.R. 300.502(a)(1)-(2)

For the purposes of this subpart: Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the district for the education of the child in question; and Public expense means that the district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent.

34 C.F.R. 300.502(a)(3)

8.04.01 Independent Evaluation at Public Expense

A parent has the right to an independent educational evaluation at district expense if the parent disagrees with an evaluation obtained by the district, subject to the conditions in paragraphs (b)(2) through (4) of this sections.

If a parent requests an independent education evaluation at public expense, the district must without unnecessary delay, either:

  1. File a due process complaint to request to request a hearing to show that its evaluation is appropriate; or

  2. Ensure that an independent educational evaluation is provided at public expense, unless the district demonstrates in a hearing pursuant to 300.507 through 300.513 that the evaluation obtained by the parent did not meet district criteria.

If the  district files a due process complaint notice to request a hearing and the final decision is that the district's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

If a parent request an independent educational evaluation, the district may ask for the parent's reason why he or she objects to the public evaluation. However, the district may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint tor request a hearing to defend the public evaluation.

34 C.F.R. 300.502(b)

8.04.02 Parent-Initiated Evaluation

If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation:

  1. May be considered by the public agency, if it meets agency criteria in any decision made with respect to the provision of FAPE to the child; and

  2. May be presented by any party as evidence at a hearing on a due process complaint regarding that child.

34 C.F.R. 300.502(c)

 

Parents may request an independent educational evaluation (IEE) be completed at the district's expense however districts are not obligated to complete another evaluation at district expense if they feel the district's evaluation is adequate. When a parent requests an independent education evaluation, the case manager must immediately inform the Special Education Director or Assistant Director for guidance. The following recommendations should be considered when planning an IEE:

  1. The IEE be limited to an education evaluation.  Medical procedures and diagnosis are not educational determinations.

  2. The IEE be limited to those areas which the parent/guardian has noted specific objection with the District’s evaluation results i.e. specific test scores (achievement and/or ability), OT, speech, observations, etc.

  3. Be educational in focus such that it may yield relevant and meaningful educationally based data in order to best assist the Educational Team in planning for the student’s educational needs.

  4. Be completed by qualified (licensed) educational personnel who may provide a measure of objectivity and who are not employed directly by the District conducting the evaluation.

  5. Be conducted on District campus or at a neutral site if necessary and agreed to by District and parent(s)/guardian(s).

  6. Be least intrusive and minimize disruption to the on-going educational programming.

  7. Be least intrusive and minimize demands on parent/guardian/families.

8.04.03 Independent Evaluation Requested by Hearing Officer at Public Expense

If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.

34 C.F.R. 300.502(d)

8.04.04 Consistency with Agency Criteria

If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation.

Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent education evaluation at public expense.

34 C.F.R. 300.502(e)

8.05 Dispute Resolution

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.

 

MN Statue 125A.091, subd. 6

Generally conciliation conferences serve better than formal hearings to promote communication between parents and school staff and to reach prompt, shared decisions about educational programs for children with disabilities.  It is the policy of ASEC and their districts to encourage staff and administrators to maintain open lines of communication with parents to resolve issues of concern before the need for outside resolution.

8.05.01 Alternative Dispute Resolutions, Generally

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.

MN Statue 125A.091, subd 8

 

The State intends to encourage parties to resolve disputes through mediation or other form of alternative dispute resolution. Alternative dispute resolution must not be used to deny or delay a parent's or guardian's right to a due process hearing.

8.05.02 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 3a. A district must hold a conciliation conference within ten calendar days from the date the district receives a parent's objection to a proposal or refusal in the prior written notice. Except as provided in this section, all discussions held during a conciliation conference are confidential and are not admissible in a due process hearing. Within five school days after the final 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.

 

MN Statue 125A.091, subd 7

 

The district is strongly encouraged to contact the Director or Assistant Director of Special Education prior to initiating any conciliation conferences.

8.05.03 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.

 

125A.091, subd. 10

When informal meetings and/or a formal conciliation conference have failed to resolve the disputed issue, the parent or district may request mediation. Mediation is a process used to resolve disputes between two or more parties and can be used for resolving disputes between parents and one or more agencies, or between agencies themselves. Mediation is conducted by a specially trained neutral third party. Although the mediator has no decision-making authority, the mediator acts as a facilitator to help reach a settlement all parties can agree to.

Participation in mediation is voluntary, non-binding and either party may request a due process hearing at any time. However, it is the policy of the Area Special Education Cooperative to offer parents the opportunity to mediate special education disputes prior to initiation of a due process hearing.

When the parent agrees to mediate a dispute, the building principal shall contact the Director of Special Education who will contact the Minnesota Special Education Mediation Service  (MNSEMS), or the parents may contact MNSEMS directly. MNSEMS will then contact the parent and district to explain the mediation process and arrange the time and place for the mediation conference.

8.05.04 Facilitated Team Meeting

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

MN Statue 125A.091, subd 10

8.05.05 Infants and Toddlers

A parent may resolve a dispute regarding issues in section 125A.42, paragraph (b), clause (5) through mediation. If the parent chooses mediation, mediation must be voluntary on the part of the parties. The parent and the public agencies must complete the mediation process within 30 calendar days of the date the Office of Dispute Resolution receives a parent's written request for mediation. The mediation process may not be used to delay a parent's right to a due process hearing. The resolution of the mediation is not binding on any party. Resolution of a dispute through mediation, or other form of alternative dispute resolution, is not limited to formal disputes arising from the objection of a parent or guardian and is not limited to the period following a request for a due process hearing. The commissioner shall provide training and resources to school districts to facilitate early identification of disputes and access to mediation.

MN Statue 125A.43(b)-(d)

8.06 Due Process Hearings

8.06.01 When a Hearing Must be Held

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.

The due process hearing must be conducted according to the rules of the commissioner and federal law.

MN State 125A.091, subd 12

8.06.02 Initiation of a Hearing/Filing a Due Process Complaint

A. Due Process Complaint Format and Content

A parent or a public agency may file a due process complaint on any of the matters relating to the identification, evaluation or educational placement of a child with a disability, r the provision of FAPE to the child.

The due process complaint must allege a violation that occurred not more than two years before the date the parent of public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the State has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law, except that the exceptions to the timeline described in 300.511(f) apply to the timeline in this section. The public agency must inform the parent of any free or low-cost legal and other relevant services available in the area if the parent requests the information; or the parent or the agency files a due process complaint.

34 C.F.R. 300.507

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.

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.

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

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.

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 3a, 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. The explanation must include 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; and 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.

(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.

MN Statue 125 A.091, subd 14

B. Complaint Filing Requirements for Both Parties

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.

 

(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.

 

(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).

 

(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.

 

(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 3a, 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. The explanation must include 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; and

 

(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.

 

(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.

 

MN Statue 125A.091, subd. 14

C. Other Party's Response to Complaint

Other party response to a due process complaint. Except as provided in paragraph (e) of this section, the party receiving a due process complaint must, within 10 days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.

34. C.F.R. 300.508(f)

If the LEA has not sent a prior written notice under Sec.  300.503 to the parent regarding the subject matter contained in the parent's due process complaint, the LEA must, within 10 days of receiving the due process complaint, send to the parent a response that includes--


    (i) An explanation of why the agency proposed or refused to take the action raised in the due process complaint;
    (ii) A description of other options that the IEP Team considered and the reasons why those options were rejected;
    (iii) A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and
    (iv) A description of the other factors that are relevant to the agency's proposed or refused action.


    (2) A response by an LEA under paragraph (e)(1) of this section shall not be construed to preclude the LEA from asserting that the parent's due process complaint was insufficient, where appropriate.

 

34 C.F.R. 300508(e)

 

8.06.03 Sufficiency of Complaint

(1) The due process complaint required by this section must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not meet the requirements in paragraph (b) of this section.


(2) Within five days of receipt of notification under paragraph (d)(1) of this section, the hearing officer must make a determination on the face of the due process complaint of whether the due process complaint meets the requirements of paragraph (b) of this section, and must immediately notify the parties in writing of that determination.


(3) A party may amend its due process complaint only if--
    (i) The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to Sec.  300.510; or
    (ii) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.


(4) If a party files an amended due process complaint, the timelines for the resolution meeting in Sec.  300.510(a) and the time period to resolve in Sec.  300.510(b) begin again with the filing of the amended due process complaint.

 

34 C.F.R. 300.508(d)

 

Minnesota Department of Education

August 18, 2009

Q & A: Extension of the 60 day Time Limit of Special Education Complaints

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has

developed this document to address questions raised by parents and school districts regarding

extension of the 60 day time limit.

 

 

 

8.06.04 Pre-Hearing resolution Activities

(1) Within 15 days of receiving notice of the parent's due process complaint, and prior to the initiation of a due process hearing under Sec.  300.511, the LEA must convene a meeting with the parent and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the due process complaint that--
    (i) Includes a representative of the public agency who has decision-making authority on behalf of that agency; and
    (ii) May not include an attorney of the LEA unless the parent is accompanied by an attorney.


(2) The purpose of the meeting is for the parent of the child to discuss the due process complaint, and the facts that form the basis of the due process complaint, so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint.


(3) The meeting described in paragraph (a)(1) and (2) of this
section need not be held if--
    (i) The parent and the LEA agree in writing to waive the meeting; or
    (ii) The parent and the LEA agree to use the mediation process described in Sec.  300.506.


(4) The parent and the LEA determine the relevant members of the IEP Team to attend the meeting.

34 C.F.R. 300.510(a)

 

If the LEA has not resolved the due process complaint to the satisfaction of the parent within 30 days of  the receipt of the due process complaint, the due process hearing may occur.
    (2) Except as provided in paragraph (c) of this section, the timeline for issuing a final decision under Sec.  300.515 begins at the expiration of this 30 day period.
    (3) Except where the parties have jointly agreed to waive the resolution process or to use mediation, notwithstanding paragraphs (b)(1) and (2) of this section, the failure of the parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.
    (4) If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented using the procedures in Sec.  300.322(d)), the LEA may, at the conclusion of the 30-day period, request that a hearing officer dismiss the parent's due process complaint.
    (5) If the LEA fails to hold the resolution meeting specified in paragraph (a) of this section within 15 days of receiving notice of a parent's due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.

34 C.F.R. 300.510(b)

 

(c) Adjustments to 30-day resolution period. The 45-day timeline for the due process hearing in Sec.  300.515(a) starts the day after one of
the following events:
    (1) Both parties agree in writing to waive the resolution meeting;
    (2) After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible;
    (3) If both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or public agency withdraws from the mediation process.

 

34 C.F.R. 300.510 (c)

 

(d) Written settlement agreement. If a resolution to the dispute is reached at the meeting described in paragraphs (a)(1) and (2) of this section, the parties must execute a legally binding agreement that is--
    (1) Signed by both the parent and a representative of the agency who has the authority to bind the agency; and
    (2) Enforceable in any State court of competent jurisdiction or in a district court of the United States, or, by the SEA, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements, pursuant to Sec.  300.537.
    (e) Agreement review period. If the parties execute an agreement pursuant to paragraph (d) of this section, a party may void the agreement within 3 business days of the agreement's execution.

 

34 C.F.R. 300.510(d)-(e)

8.06.05 Who is Responsible for Conducting a Hearing

 

The resident district is responsible for resolving disagreements between the pupil's parents and district, including conciliation and due process hearings when the placement has been made by the resident district. If the providing district, agency, or academy receives a request for a conciliation conference, mediation, or due process hearing from the parent, the providing district, agency, or academy must notify the resident district of the parent's request within one school day.

 

MN Rule 3525.0800, subp.5

 

No resident of a district who is eligible for special instruction and services under this section may be denied instruction and service on a shared time basis consistent with section 126C.19, subdivision 4, because of attending a nonpublic school defined in section 123B.41, subdivision 9. If a resident pupil with a disability attends a nonpublic school located within the district of residence, the district must provide necessary transportation for that pupil within the district between the nonpublic school and the educational facility where special instruction and services are provided on a shared time basis. If a resident pupil with a disability attends a nonpublic school located in another district and if no agreement exists under section 126C.19, subdivision 1 or 2, for providing special instruction and services on a shared time basis to that pupil by the district of attendance and where the special instruction and services are provided within the district of residence, the district of residence must provide necessary transportation for that pupil between the boundary of the district of residence and the educational facility. The district of residence may provide necessary transportation for that pupil between its boundary and the nonpublic school attended, but the nonpublic school must pay the cost of transportation provided outside the district boundary.

Parties serving students on a shared time basis have access to the due process hearing system described under United States Code, title 20, and the complaint system under Code of Federal Regulations, title 34, section 300.660-662. In the event it is determined under these systems that the nonpublic school or staff impeded the public school district's provision of a free appropriate education, the commissioner may withhold public funds available to the nonpublic school proportionally applicable to that student under section 123B.42.

 

MN Statute 125A.18

 

8.06.06 Additional Rights and Obligations

A. Applicable to both Parents and Agencies

(1) counsel, Evidence, and Witnesses

 

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 3a. A district must hold a conciliation conference within ten calendar days from the date the district receives a parent's objection to a proposal or refusal in the prior written notice. Except as provided in this section, all discussions held during a conciliation conference are confidential and are not admissible in a due process hearing. Within five school days after the final 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.

 

MN Statue 125A.091, subd. 7

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.

 

MN Statue 125A.091, subd. 8


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 and signed by the parties and each party is given a copy of the document. 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.

 

MN Statue 125A.091, subd. 10

 

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.

 

MN Statue 125 A.091, subd. 17

 

 

The building principal and the Director or Assistant Director of Special Education must immediately be notified whenever a parent objects to any purposed action.

When informal meetings and/or a formal conciliation conference have failed to resolve the disputed issue, the parent or district may request mediation. Mediation is a process used to resolve disputes between two or more parties and can be used for resolving disputes between parents and one or more agencies, or between agencies themselves. Mediation is conducted by a specially trained neutral third party. Although the mediator has no decision-making authority, the mediator acts as a facilitator to help reach a settlement all parties can agree to.

Participation in mediation is voluntary, non-binding and either party may request a due process hearing at any time. However, it is the policy of the Area Special Education Cooperative to offer parents the opportunity to mediate special education disputes prior to initiation of a due process hearing.

When the parent agrees to mediate a dispute, the building principal shall contact the Director of Special Education who will contact the Minnesota Special Education Mediation Services (MNSEMS), or the parents may contact MNSEMS directly. MNSEMS will then contact the parent and district to explain the mediation process and arrange the time and place for the mediation conference.

(2) Hearing Records and Decisions

The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the due process complaint filed under Sec.  300.508(b), unless the other party agrees otherwise.

 

34 C.F.R. 300.511(d)

 

Any party to a hearing conducted pursuant to Sec. Sec.  300.507 through 300.513 or Sec. Sec.  300.530 through 300.534, or an appeal conducted pursuant to Sec.  300.514, has the right to:


 (4) Obtain a written, or, at the option of the parents, electronic, verbatim record of the hearing; and
 (5) Obtain written, or, at the option of the parents, electronic findings of fact and decisions.

 

34 C.F.R. 300.512(a)(4)(5)

The public agency must ensure that not later than 45 days after the expiration of the 30 day period under Sec.  300.510(b), or the adjusted time periods described in Sec.  300.510(c):
    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.

 

34 C.F.R. 300.515(a)

 

(3) Burdens of Proof

 

The burden of proof at a due process hearing is on the party seeking relief.

 

MN Statute 125A.091, subd. 16

 

B. Parents-Specific Rights

 

Parental rights at hearings. Parents involved in hearings must be given the right to:


    (1) Have the child who is the subject of the hearing present;
    (2) Open the hearing to the public; and
    (3) Have the record of the hearing and the findings of fact and decisions described in paragraphs (a)(4) and (a)(5) of this section provided at no cost to parents.

 

34 C.F.R. 300.512(c)

 

Each hearing and each review involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved.

 

34 C.F.R. 300.515(d)

 

C. Stay Put

 

Except as provided in Sec.  300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under Sec.  300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.


If the complaint involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings.


 If the complaint involves an application for initial services under this part from a child who is transitioning from Part C of the Act to Part B and is no longer eligible for Part C services because the child has turned three, the public agency is not required to provide the Part C services that the child had been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under Sec.  300.300(b), then the public agency must provide those special education and related services that are not in
dispute between the parent and the public agency.


 If the hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents for purposes of paragraph (a) of this section.

 

34 C.F.R. 300.518

 

8.06.07 Hearing Officers

A. Qualifications of Hearing Officer

The commissioner shall maintain a list of qualified hearing officers. The list shall include a statement of the qualifications of each person listed. Upon receipt of a written request for a hearing, the commissioner shall appoint a hearing officer from the list. 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;

(8) not be a current employee or board member of a disability advocacy organization or group;

(9) not otherwise be under contract with the department or the school district;

(10) know and understand state and federal special education laws, rules, and regulations, and legal interpretations by federal and state courts; and

(11) have the knowledge and ability to conduct hearings and render and write decisions according to appropriate, standard legal practice.

 

MN Statue 125A.091, subd. 13

 

B. Prehearing Conference Duties

 

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.

 

MN Statute 125A.091, subd 15

 

C. Hearing Officer Authority

 

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;

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

(7) extending the hearing decision timeline if the hearing officer determines that good cause exists.

 

MN Statute 125A.091, subd 18

D. Decisions of Hearing Officer

 

A district is not liable for harmless technical violations of federal or state laws, rules, or regulations governing special education if the school district can demonstrate that the violations did not harm a student's educational progress or the parent's right to notice, participation, or due process. This subdivision is applicable to due process hearings and special education complaints filed with the department.

 

MN Statue 125A.091, subd 28

 

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.

 

MN Statue 125A.091, subd 21

 

E. Decision Timelines

 

The hearing officer must ensure that not later than 45 days after the 30-day period or the adjusted time periods under federal regulations expire, the hearing officer reaches a final decision in the due process hearing and transmits a copy of the decision to each party. A hearing officer, at the request of either party, may grant specific extensions of time beyond the 45-day period under subdivision 18. The hearing officer must conduct the oral arguments in a hearing at a time and place that is reasonably convenient to the parents and child involved. 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.

 

(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.

 

(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.

 

MN Statue 125A.091, subd 20

8.06.07 Appeals

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. A party must appeal to the Minnesota Court of Appeals within 60 days of receiving the hearing officer's decision or must appeal to federal district court within 90 days of receiving the hearing officer's decision.

 

MN Statue 125A.091, subd. 24

 

 

Minnesota Department of Education

November 4, 2008

Q & A: May a Complaint Decision be Appealed?

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has

developed this document to address questions raised by parents and school districts regarding

appleals.

 

 

8.07 Expedited Due Process Hearings

8.07.01 General Hearing Provisions Related to Manifestation Determinations and Interim Alternative Placement Decisions

Consistent with federal law, a parent or a school district may file a written request for an expedited due process hearing. A hearing officer must hold an expedited due process hearing within 20 school days of the date the expedited due process request is filed and must issue a decision within ten school days after the hearing. 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.

 

MN Statue 125a.091, sub. 19

8.07.02 Manifestation Determination Review

The parent of a child with a disability who disagrees with any decision regarding placement under Sec. Sec.  300.530 and 300.531, or the manifestation determination under Sec.  300.530(e), or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to Sec. Sec.  300.507 and 300.508(a) and (b).
    (b) Authority of hearing officer. (1) A hearing officer under Sec.  300.511 hears, and makes a determination regarding an appeal under
paragraph (a) of this section.

    (2) In making the determination under paragraph (b)(1) of this section, the hearing officer may--
    (i) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of Sec.  300.530 or that the child's behavior was a manifestation of the child's disability; or
    (ii) Order a change of placement of the child with a disability to
an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

    (3) The procedures under paragraphs (a) and (b)(1) and (2) of this section may be repeated, if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.

 

34 C.F.R. 300.532(a)-(b)

8.08 Attorneys' Fees

8.08.01 Awarding of Fees

A. When Attorney's Fees are Awarded

In general. (1) In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award
reasonable attorneys' fees as part of the costs to--
    (i) The prevailing party who is the parent of a child with a
disability;
    (ii) To a prevailing party who is an SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or
    (iii) To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent's request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

 

34 C.F.R. 300.517(a)(1)

 

A court awards reasonable attorney's fees under section 615(i)(3) of the Act consistent with the following:

(3) Notwithstanding paragraph (c)(2) of this section, an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.

 

34 C.F.R. 517.(c)(3)

 

B. When Attorney Fees Are not Awarded

Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 of the Act for services performed subsequent to the time of a written offer of settlement to a parent if--
    (A) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative
proceeding, at any time more than 10 days before the proceeding begins;
    (B) The offer is not accepted within 10 days; and
    (C) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

34 C.F.R.300.517(c)(2)(ii)

Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State, for a mediation described in Sec.  300.506.

34 C.R.R. 300.517(c)(2)(ii)

1. Exception

A meeting conducted pursuant to Sec.  300.510 shall not be considered--
    (A) A meeting convened as a result of an administrative hearing or judicial action; or
    (B) An administrative hearing or judicial action for purposes of this section.

34 C.F.R. 300.517 (c)(2)(iii)

8.08.02 Reduction of Fees

A. When Attorneys' Fees Are Reduced

Except as provided in paragraph (c)(5) of this section, the court reduces, accordingly, the amount of the attorneys' fees awarded under section 615 of the Act, if the court finds that--
    (i) The parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;
    (ii) The amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;
    (iii) The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
    (iv) The attorney representing the parent did not provide to the LEA the appropriate information in the due process request notice in accordance with Sec.  300.508.

34 C.F.R.300.517 (c)(4)

B. When Attorneys' Fees Are Not Reduced

The provisions of paragraph (c)(4) of this section do not apply in any action or proceeding if the court finds that the State or local agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of section 615 of the Act.

34 C.F.R. 300.517 (c)(5)

8.08.03 Measure of Fee Award

Award of fees. A court awards reasonable attorneys' fees under section 615(i)(3) of the Act consistent with the following:
    (1) Fees awarded under section 615(i)(3) of the Act must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this paragraph.

34 C.F.R. 300.517.(c)(1)

8.08.04 Prohibition on Use of Part B Funds

Prohibition on use of funds. (1) Funds under Part B of the Act may not be used to pay attorneys' fees or costs of a party related to any action or proceeding under section 615 of the Act and subpart E of this part.
    (2) Paragraph (b)(1) of this section does not preclude a public agency from using funds under Part B of the Act for conducting an action or proceeding under section 615 of the Act.

34 C.F.R. 300.517 (b)

8.9 Interagency Dispute Procedures (Early Childhood)

A dispute between a school board and a county board that is responsible for implementing the provisions of section 125A.29 regarding early identification, child and family assessment, service coordination, and IFSP development and implementation must be resolved according to this subdivision when the dispute involves services provided to children and families eligible under the Individuals with Disabilities Education Act, United States Code, title 20, section 1471 et seq. (Part C, Public Law 108-446).

A dispute occurs when the school board and county board are unable to agree as to who is responsible to coordinate, provide, pay for, or facilitate payment for services from public and private sources. Written and signed disputes must be filed with the local primary agency.The local primary agency must attempt to resolve the matter with the involved school board and county board and may request mediation from the commissioner of the state lead agency for this purpose. When interagency disputes have not been resolved within 30 calendar days, the local primary agency must request the commissioner of the state lead agency to review the matter with the commissioners of health and human services and make a decision. The commissioner must provide a consistent process for reviewing those procedures. The commissioners' decision is binding subject to the right of an aggrieved party to appeal to the state Court of Appeals.

The local primary agency must ensure that eligible children and their families receive early intervention services during resolution of a dispute. While a local dispute is pending, the local primary agency must either assign financial responsibility to an agency or pay for the service from the early intervention account under section 125A.35. If in resolving the dispute, it is determined that the assignment of financial responsibility was inappropriate, the responsibility for payment must be reassigned to the appropriate agency and the responsible agency must make arrangements for reimbursing any expenditures incurred by the agency originally assigned financial responsibility.

MN Statue 125A.45

 

8.10 Complaints to the Minnesota Department of Education

8.10.01 Requirements

An organization or individual may file a signed written complaint under the procedures described in Sec. Sec.  300.151 through 300.152.
    (b) The complaint must include--
    (1) A statement that a public agency has violated a requirement of Part B of the Act or of this part;
    (2) The facts on which the statement is based;
    (3) The signature and contact information for the complainant; and
    (4) If alleging violations with respect to a specific child--
    (i) The name and address of the residence of the child;
    (ii) The name of the school the child is attending;
    (iii) In the case of a homeless child or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child, and the name of the school the child is attending;
    (iv) A description of the nature of the problem of the child, including facts relating to the problem; and
    (v) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.
    (c) The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with Sec.  300.151.
    (d) The party filing the complaint must forward a copy of the complaint to the LEA or public agency serving the child at the same time the party files the complaint with the SEA.

34 C.F.R. 300.153.(a)-(d)

8.10.02 Procedures

Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each SEA must include in its complaint procedures a time limit of 60 days after a complaint is filed under Sec.  300.153 to--
    (1) Carry out an independent on-site investigation, if the SEA determines that an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;
    (3) Provide the public agency with the opportunity to respond to the complaint, including, at a minimum--
    (i) At the discretion of the public agency, a proposal to resolve the complaint; and
    (ii) An opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation consistent with Sec.  300.506;
    (4) Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act or of this part; and
    (5) Issue a written decision to the complainant that addresses each allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the SEA's final decision.

34 C.F.R.300.152.(a)-(b)

The commissioner of the state lead agency shall receive and coordinate with other state agencies the review and resolution of a complaint within 60 calendar days according to the state interagency agreement required under section 125A.48. The development and disposition of corrective action orders for nonschool agencies shall be determined by the State Agency Committee (SAC). Failure to comply with corrective orders may result in fiscal actions or other measures.

MN Statue 125A.44 (b)

8.10.03 Resolution and Implementation

Remedies for denial of appropriate services. In resolving a complaint in which the SEA has found a failure to provide appropriate services, an SEA, pursuant to its general supervisory authority under Part B of the Act, must address--
    (1) The failure to provide appropriate services, including corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement); and
    (2) Appropriate future provision of services for all children with disabilities.

 

34 C.F.R. 300.15(b)

8.10.04 State Complaints Associated with Due Process Hearings

 

If a written complaint is received that is also the subject of a due process hearing under Sec.  300.507 or Sec. Sec.  300.530 through 300.532, or
contains multiple issues of which one or more are part of that hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action must be resolved using the time limit and procedures described in paragraphs (a) and (b) of this section.

 

If an issue raised in a complaint filed under this section has previously been decided in a due process hearing involving the same parties--
    (i) The due process hearing decision is binding on that issue; and
    (ii) The SEA must inform the complainant to that effect.
    (3) A complaint alleging a public agency's failure to implement a due process hearing decision must be resolved by the SEA.

 

34 C.F.R. 300 152(c)(1-3)

8.11 Data Privacy

8.11.01 Safeguards and District Procedures

(a) Each participating agency must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.
(b) One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information.
(c) All persons collecting or using personally identifiable information must receive training or instruction regarding the State's policies and procedures under Sec.  300.123 and 34 CFR part 99.
(d) Each participating agency must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

34 C.F.R. 300.623

Each participating agency must keep a record of parties obtaining access to education records collected, maintained, or used under Part B
of the Act (except access by parents and authorized employees of the participating agency), including the name of the party, the date access
was given, and the purpose for which the party is authorized to use the records.

 

34 C.F.R. 300.614

 

By December 1, 2000, each responsible authority or other appropriate authority in every government entity shall appoint or designate an employee of the government entity to act as the entity's data practices compliance official. The data practices compliance official is the designated employee of the government entity to whom persons may direct questions or concerns regarding problems in obtaining access to data or other data practices problems. The responsible authority may be the data practices compliance official.

 

MN Statue 13.05, sub. 13

 

For school districts, the school board shall appoint an individual who is an employee of the school district.

MN Rule 1205.0200, subp 14 (C)

 

8.11.02 Privacy of Records

 

"Educational data" means data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student.

 

Records of instructional personnel which are in the sole possession of the maker thereof and are not accessible or revealed to any other individual except a substitute teacher, and are destroyed at the end of the school year, shall not be deemed to be government data.

Records of a law enforcement unit of a public educational agency or institution which are maintained apart from education data and are maintained solely for law enforcement purposes, and are not disclosed to individuals other than law enforcement officials of the jurisdiction are not educational data; provided, that education records maintained by the educational agency or institution are not disclosed to the personnel of the law enforcement unit. The University of Minnesota police department is a law enforcement agency for purposes of section 13.82 and other sections of Minnesota Statutes dealing with law enforcement records. Records of organizations providing security services to a public educational agency or institution must be administered consistent with section 13.861.

 

Records relating to a student who is employed by a public educational agency or institution which are made and maintained in the normal course of business, relate exclusively to the individual in that individual's capacity as an employee, and are not available for use for any other purpose are classified pursuant to section 13.43.

 

MN Statue 13.32, subd.1

 

Except as provided in subdivision 5, educational data is private data on individuals and shall not be disclosed except as follows:

(a) pursuant to section 13.05;

(b) pursuant to a valid court order;

(c) pursuant to a statute specifically authorizing access to the private data;

(d) to disclose information in health, including mental health, and safety emergencies pursuant to the provisions of United States Code, title 20, section 1232g(b)(1)(I) and Code of Federal Regulations, title 34, section 99.36;

(e) pursuant to the provisions of United States Code, title 20, sections 1232g(b)(1), (b)(4)(A), (b)(4)(B), (b)(1)(B), (b)(3), (b)(6), (b)(7), and (i), and Code of Federal Regulations, title 34, sections 99.31, 99.32, 99.33, 99.34, 99.35, and 99.39;

(f) to appropriate health authorities to the extent necessary to administer immunization programs and for bona fide epidemiologic investigations which the commissioner of health determines are necessary to prevent disease or disability to individuals in the public educational agency or institution in which the investigation is being conducted;

(g) when disclosure is required for institutions that participate in a program under title IV of the Higher Education Act, United States Code, title 20, section 1092;

(h) to the appropriate school district officials to the extent necessary under subdivision 6, annually to indicate the extent and content of remedial instruction, including the results of assessment testing and academic performance at a postsecondary institution during the previous academic year by a student who graduated from a Minnesota school district within two years before receiving the remedial instruction;

(i) to appropriate authorities as provided in United States Code, title 20, section 1232g(b)(1)(E)(ii), if the data concern the juvenile justice system and the ability of the system to effectively serve, prior to adjudication, the student whose records are released; provided that the authorities to whom the data are released submit a written request for the data that certifies that the data will not be disclosed to any other person except as authorized by law without the written consent of the parent of the student and the request and a record of the release are maintained in the student's file;

(j) to volunteers who are determined to have a legitimate educational interest in the data and who are conducting activities and events sponsored by or endorsed by the educational agency or institution for students or former students;

(k) to provide student recruiting information, from educational data held by colleges and universities, as required by and subject to Code of Federal Regulations, title 32, section 216;

(l) to the juvenile justice system if information about the behavior of a student who poses a risk of harm is reasonably necessary to protect the health or safety of the student or other individuals;

(m) with respect to Social Security numbers of students in the adult basic education system, to Minnesota State Colleges and Universities and the Department of Employment and Economic Development for the purpose and in the manner described in section 124D.52, subdivision 7;

(n) to the commissioner of education for purposes of an assessment or investigation of a report of alleged maltreatment of a student as mandated by section 626.556. Upon request by the commissioner of education, data that are relevant to a report of maltreatment and are from charter school and school district investigations of alleged maltreatment of a student must be disclosed to the commissioner, including, but not limited to, the following:

(1) information regarding the student alleged to have been maltreated;

(2) information regarding student and employee witnesses;

(3) information regarding the alleged perpetrator; and

(4) what corrective or protective action was taken, if any, by the school facility in response to a report of maltreatment by an employee or agent of the school or school district;

(o) when the disclosure is of the final results of a disciplinary proceeding on a charge of a crime of violence or nonforcible sex offense to the extent authorized under United States Code, title 20, section 1232g(b)(6)(A) and (B) and Code of Federal Regulations, title 34, sections 99.31 (a)(13) and (14);

(p) when the disclosure is information provided to the institution under United States Code, title 42, section 14071, concerning registered sex offenders to the extent authorized under United States Code, title 20, section 1232g(b)(7); or

(q) when the disclosure is to a parent of a student at an institution of postsecondary education regarding the student's violation of any federal, state, or local law or of any rule or policy of the institution, governing the use or possession of alcohol or of a controlled substance, to the extent authorized under United States Code, title 20, section 1232g(i), and Code of Federal Regulations, title 34, section 99.31 (a)(15), and provided the institution has an information release form signed by the student authorizing disclosure to a parent. The institution must notify parents and students about the purpose and availability of the information release forms. At a minimum, the institution must distribute the information release forms at parent and student orientation meetings.

 

MN Statue13.32, sub3

8.11.03 Parents' Right of Access to Records

Upon request to a responsible authority or designee, an individual shall be informed whether the individual is the subject of stored data on individuals, and whether it is classified as public, private or confidential. Upon further request, an individual who is the subject of stored private or public data on individuals shall be shown the data without any charge and, if desired, shall be informed of the content and meaning of that data. After an individual has been shown the private data and informed of its meaning, the data need not be disclosed to that individual for six months thereafter unless a dispute or action pursuant to this section is pending or additional data on the individual has been collected or created. The responsible authority or designee shall provide copies of the private or public data upon request by the individual subject of the data. The responsible authority or designee may require the requesting person to pay the actual costs of making and certifying the copies.

The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible.

MN Statie 13.04, sub. 3

 

Minnesota Department of Education

February 2012

Q & A: Clarification of Educational Record Definitions & Procedures as it Relates to Review of Test Protocols Used in the Evaluation of a Student with a Disability

The Minnesota Department of Education (MDE) Division of Compliance and Assistance has developed

this document to address questions raised by parents and school districts regarding review of test protocols.

 

 

A. Notice of Destruction of Records

 

The public agency must inform parents when personally identifiable information collected, maintained, or used under this part is no longer needed to provide educational services to the child. The information must be destroyed at the request of the parents. However, a permanent record of a student's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.

 

34 C.F.R. 300.624

8.11.04 Right to Challenge the Accuracy of Records and Request Changes

An individual subject of the data may contest the accuracy or completeness of public or private data. To exercise this right, an individual shall notify in writing the responsible authority describing the nature of the disagreement. The responsible authority shall within 30 days either: (1) correct the data found to be inaccurate or incomplete and attempt to notify past recipients of inaccurate or incomplete data, including recipients named by the individual; or (2) notify the individual that the authority believes the data to be correct. Data in dispute shall be disclosed only if the individual's statement of disagreement is included with the disclosed data. 

MN Statute 13.4, subd.4(a)

A. Hearings

The determination of the responsible authority may be appealed pursuant to the provisions of the Administrative Procedure Act relating to contested cases. Upon receipt of an appeal by an individual, the commissioner shall, before issuing the order and notice of a contested case hearing required by chapter 14, try to resolve the dispute through education, conference, conciliation, or persuasion. If the parties consent, the commissioner may refer the matter to mediation. Following these efforts, the commissioner shall dismiss the appeal or issue the order and notice of hearing.

MN Statute 13.4, subd.4(a)

Pursuant to Minnesota Statutes, section 13.04, subdivision 4 an individual may appeal an adverse determination of a responsible authority to the commissioner of administration. The appeal shall follow the procedures established in Minnesota Statutes, chapter 14, as amended, and the rules of the Office of Administrative Hearings relating to contested case proceedings.

Notice of an appeal must be submitted to the commissioner within a reasonable time of the determination made by the responsible authority pursuant to Minnesota Statutes, section 13.04, subdivision 4. For purposes of this subpart, "reasonable time" shall mean 180 days unless the responsible authority has provided the individual with a written statement which informs the individual of the right to appeal the determination to the commissioner. In the event this statement is provided, "reasonable time" for purposes of this subpart shall mean 60 days.

The notice shall be in writing and addressed to: Commissioner of Administration, State of Minnesota, 50 Sherburne Avenue, Saint Paul, Minnesota 55155.

The notice shall contain the following information:

A. the name, address, and phone number, if any, of the appealing party;

B. the name of the responsible authority and the entity which he or she represents;

C. a description of the nature of the dispute, including a description of the data; and

D. a description of the desired result of the appeal; upon written request of the data subject stating reasons, the appeal may be processed under the name of a pseudonym.

The administrative law judge, at any stage of the proceedings, after all parties have had an opportunity to present their views, may recommend dismissal of any sham, capricious, or frivolous case, or any case not within the jurisdiction of the Department of Administration.

The Department of Administration shall be reimbursed for all costs associated with the contested case proceeding by the entity whose responsible authority has been the impetus for the individual's appeal to the commissioner. The commissioner shall establish appropriate accounting procedures to provide to the entity an itemized invoice.

MN Rule 1205.1600

The district shall annually notify parents of students of their rights under the Family Education Rights and Privacy Act and the Code of Federal Regulation, title 34, part 99.  This notice is generally provided to parents in the district's student handbook which is provided to student on a yearly basis.

Parents have the right to review and inspect any educational records on their child upon request. A record must be maintained of the individuals, other than the parents and authorized employees of the district) that access special education files. The Access to Education Records log must be stapled in each Learner File and the person viewing the records must sign their name, date of viewing and the purpose for accessing the record.

The interagency early intervention committee in each county within the Area Special Education Cooperative have a policy of obtaining written parental permission to enable a member of an interagency early intervention committee to allow another member access to information on a particular child.

 

  Last modified June 1, 2011