Special Education Case Loads Task Force

To: Minnesota Legislature

From: Caseload/Rule Alignment Task Force

Re: Statute/Rule Alignment Recommendations

Date: January 14, 2014

This report contains the recommendations of the Caseload/Rule Alignment task force regarding possible amendments to Minnesota Rules and Minnesota Statutes to remove inconsistencies, correct outdated legal references, and clarify confusing language. This report contains 18 recommendations.

Care and Treatment

Recommendation 1: The task force recommends making no changes to these statute and rule provisions.

Rationale: These provisions address the care and treatment of students and are quite complex. The task force considered amending the rule to only address students in non-residential treatment but ultimately decided that changes to these statutes would be controversial and require a more in-depth discussion. Although the care and treatment statutes supersede the majority of the current rule language and the remaining effective sections of the rule address students not in residential treatment facilities, the task force believes more discussion is necessary before any changes are made.

Statute: Minn. Stat. § 125A.15, Placement In Another District; Responsibility; Minn. Stat. § 125A.51, Placement of Children Without Disabilities; Education and Transportation; and Minn. Stat. § 125A.515, Placement of Students; Approval of Education Program

Rule: Minn. R. 3525.2325, Education Programs for K-12 Pupils and Regular Students Placed in Centers for Care and Treatment

Prior Written Notice

Recommendation 2: The task force recommends amending Minn. R. 3525.3600 to be consistent with Minn. Stat. § 125A.091, Subd. 3a.

Rationale: Minn. Stat. § 125A.091, Subd. 3a provides that a district will proceed with the provision of special education services to a child 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.” In contrast, Minn. R. 3525.3600 provides that a district will proceed to provide special education services to a child unless a child’s parent objects “within 14 calendar days after the receipt of the notice.” These two provisions are inconsistent and cause confusion in the field about when the 14 day timeline begins. The statutory provision is consistent with the “mail box” rule, which starts the 14 day timeline as soon as the prior written notice was sent to the parent. This timeframe will provide the district with a clear date to begin implementing the child’s IEP if they do not receive an objection from the child’s parents. Task force members also discussed that as a best practice the prior written notice sent to the parent should state the date when it was sent, so the start of the timeline is clear.

Statute: Minn. Stat. § 125A.091 Alternative Dispute Resolution and Due Process Hearings, Subd. 3a. Additional requirements for prior written notice.

Rule: Minn. R. 3525.3600 Part B Prior Written Notice

Diagnoses for ADD/ADHD for a Child With a Disability

Recommendation 3: The task force recommends amending Minn. R. 3525.1335, Subp. 2(A) to be consistent with Minn. Stat. § 125A.02, Subd.1, to allow a wider variety of professional individuals to make a diagnosis of ADD/ADHD for a child with a disability.

Rationale: Minn. Stat. § 125A.02, Subd. 1, permits a licensed physician, an advanced practice nurse, or a licensed psychologist to make diagnoses of ADHD or ADD for purposes of identifying child with a disability. In contrast, Minn. R. 3525.1335, Subp. 2(A)(2) sets forth a much narrower diagnoses pathway for a child with a disability, by requiring a diagnoses by a licensed physician for ADD or ADHD. Minnesota statute permits a much wider variety of health professionals to make a diagnosis of ADD/ADHD for a child with a disability which makes it easier for children to be appropriately identified and receive necessary services.

Statute: Minn. Stat. § 125A.02, Subd. 1 Child with a Disability Defined

Rule: Minn. R. 3525.1335, Subp. 2(A)(2) Other Health Disabilities; Minn. R. 3525.1335 Subp. 2(A)(2) Other Health Disabilities

Transition

Recommendation 4: The task force recommends amending the rule language to be consistent with Minnesota statute by removing the reference to “or age 14” in rule and leave the language requiring transition during grade 9. This rule also requires a transition evaluation document in the evaluation report and the task force recommends maintaining the rule provisions that relate to the transition evaluation in the rule.

Rationale: Minn. Stat. § 125A.08(a)(1) provides that transition should happen “during grade nine.” Whereas, Minn. R. 3525.2900 provides that transition should occur “by grade nine or age 14, whichever comes first.” This inconsistency results in confusion in the field about when transition should happen for a student receiving special education services. The language relating to the evaluation document in the transition process should be kept in the rule because this is an important aspect of transition for students receiving special education services.

Statute: Minn. Stat. § 125A.08(a)(1) Individualized Education Programs

Rule: Minn. R. 3525.2900, Subp. 4 Transition Planning; Minn. R. 3525.2810 Development of Individualized Education Program Plan

Definition of Child with A Disability Related to Deaf and Hard of Hearing/Deaf-Blind/Visually Impaired Students

Recommendation 5: The task force recommends amending the rule to have more consistency between the rule and statutory language. The word “and” should be changed in Minn. R. 3525.1331 to the word “or” to reflect the statutory language in Minn. Stat. § 125A.02.

Rationale: Minn. Stat. § 125A.02, includes the language “deaf or hard of hearing, blind or visually impaired, deafblind…” in its definition of a child with a disability. Several different rule provisions address children with hearing and vision related disabilities, and use different terminology and definitions to describe the conditions. Minn. R. 3525.1331 is titled “Deaf and Hard of Hearing,” and this language is also referenced in Subp. 1, the definitions section of this rule. Thus, the word “and” in the rule should be changed to the word “or” similar to the statute to ensure consistent language is used in reference to this disability category.

Statute: Minn. Stat. § 125A.02 Child with a Disability

Rule: Minn. R. 3525.1327 Deaf-Blind; Minn. R. 3525.1331 Deaf and Hard of Hearing; and Minn. R. 3525.1345 Visually Impaired

Evaluations vs. Assessments

Recommendation 6: The task force recommends changing the statutory language by replacing the phrase “assessment or reassessment” with “evaluation and reevaluation” to reflect the language in both federal law and Minnesota rule.

Rationale: Minn. Stat. § 125A.08 (b)(4) uses the language “assessment or reassessment” in reference to an evaluation or reevaluation for special education. Minn. R. 3525.2550 uses the language “evaluation” in reference to a special education evaluation. Federal law refers to “evaluations and reevaluations” not assessment or reassessment. 34 C.F.R. § 300.301-306. The use of the terms “assessment” and “evaluation” in statute and rule, respectively, causes confusion in the field.

Statute: Minn. Stat. § 125A.08(b)(4), Individualized Education Programs

Rule: Minn. R. 3525.2550, Conduct Before Evaluation and Minn. R. 3525.2710, Evaluations and Reevaluations

Restrictive Procedures

Recommendation 7: The task force recommends amending Minn. R. 3525.2710, Subp. 4(F) to replace the term “conditional procedure” with “restrictive procedure” to make the statutory and rule language consistent.

Rationale: Minn. R. 3525.2710, Subp. (4)(F) uses the term “conditional procedure” which is no longer used in Minnesota statutes that relate to restrictive procedures. The restrictive procedures statutes, including Minn. Stat. § 125A.0942, were changed in 2009, and these changes went into effect on August 1, 2011. The rules that related to conditional procedures were repealed when the statutory changes went into effect, thus any references to the term “conditional procedure” should be removed and replaced with the term “restrictive procedure.” The term “restrictive procedures” is still used in Minnesota statutes.

Statute: Minn. Stat. § 125A.0942 Standards for Restrictive Procedures

Rule: Minn. R. 3525.2710 Evaluations and Reevaluations, Subp. 4(F) Additional requirements for evaluations and reevaluations

Standards for Restrictive Procedures

Recommendation 8: The task force recommends submitting a Form A in 2014 to fix a technical error in Minn. Stat. §125A.0942, Subd. 2(b).

Rationale: There is a technical error in Minn. Stat. § 125A.0942, Subd. 2(b). This subdivision states: “A school shall… as indicated by the child’s parent under paragraph (d).” This provision should read: “A school shall… as indicated by the child’s parent under paragraph (f).” The reference to paragraph (d) should be changed to paragraph (f).

Statute: Minn. Stat. § 125A.0942, Subd. 2(b). Restrictive procedures

Rule: No rule corollary

Aversive and Deprivation Procedures (new to report)

Recommendation 8a: The taskforce recommends changing the language in Minn. Stat. 121A.67 to remove replace the term” aversive and deprivation procedures” with the term “restrictive procedures.”

Rationale: Minn. Stat. § 121A.67 uses the term “aversive and deprivation procedures” is no longer used in any education statutes, other than as the heading of this statute (however it is still used in some Department of Human Services statutes). The restrictive procedures statutes, including Minn. Stat. § 121A.67, were amended changed in 2009, and these changes went into effect on August 1, 2011. The rules that related to aversive and deprivation procedures were repealed when the statutory changes went into effect, thus any references to the term “aversive and deprivation procedure” should be removed and replaced with the term “restrictive procedure.” The term “restrictive procedure” is still used in Minnesota law.

Statute: Minn. Stat. 121A.67

Rule: No rule corollary

Educational Placement

Recommendation 9: The task force recommends amending Minn. R. 3525.3010, Subp. 2 to remove the references to the outdated rule and federal regulation provisions and replace these references with the current citations.

Rationale: Minnesota Rule 3525.3010, Subp. 2 includes references to outdated provisions in both Minnesota Rules and the federal regulations. This rule references Minnesota Rule 3525.3400 which was repealed in 2009. This rule also references 34 C.F.R. § 300.552 which was renumbered to 34 C.F.R. § 300.114.

Statute: No statutory corollary

Rule: Minn. R. 3525.3010 Educational Placement, Subp. 2. General least restrictive environment requirements

Visual Impairment

Recommendation 10: The task force recommends making no changes at this time because changes to this rule will be controversial and more discussion is needed with interested and affected parties.

Rationale: A definition of “visual impairment including blindness” is provided for in 34 C.F.R. § 300.8(c)(13). The definitions set out in state statute and rule are different from one another. Despite these inconsistencies these changes may be controversial and further discussion is needed with interested and affected parties.

Statute: Minn. Stat. § 125A.06 Blind Persons’ Literacy Rights

Rule: Minn. R. 3525.1345 Visually Impaired

Initial Provision of Services

Recommendation 11: To be decided at 1/14/14 meeting. (Possible recommendation: Amend the rule to be consistent with the state statute)

Rationale: Minn. Stat. §125A.901, Subd. 5 states that “a 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.” In contrast, Minn. R. 3525.3700, Subp. E states that “if the proposed action is an initial evaluation or initial placement, the district must not proceed until the parents give written informed consent.” The rule language does not include “initial provision” in the list of actions that a district cannot take unless written parental consent has been given. The phrase “initial provision” should be added to the rule language to reflect statutory language and to ensure consistency between statute and rule regarding what actions a district cannot proceed with until written parental consent has been obtained. Furthermore, Minn. R. 3525.3600(c) uses the “initial evaluation, initial placement and initial provision of services” language as well so this amendment would ensure greater consistency throughout Minnesota rules.

Statute: Minn. Stat. § 125A.091 Alternative Dispute Resolution and Due process Hearings, Subd. 5 Initial Action; parent consent

Rule: Minn. R. 3525.3700, Conciliation Conference, Subp. 1(E)

Initial Evaluation and Initial Provision of Services—Written Refusal

Recommendation 12: To be decided at 1/14/14 meeting. (Possible recommendation: Amend rule language to be consistent with state statute, to disallow a district to override a parent’s refusal to provide consent for an initial evaluation.)

Rationale: Minn. R. 3525.3700, Subp. 1 permits a district to override a parent’s refusal to provide consent for an initial evaluation. In contrast, Minn. Stat. §125A.091, Subd. 5 does not permit a district to override a parent’s written refusal for an initial evaluation. These two opposing standards for conducting an initial evaluation cause confusion in the field. The rule language should be amended to reflect the statutory standard that disallows a district to override a parent’s written refusal to consent to an initial evaluation or reevaluation of a child for special education eligibility.

Statute: Minn. Stat. § 125A.091 Alternative Dispute Resolution and Due Process Hearings, Subd. 5 Initial Action; parent consent

Rule: Minn. R. 3525.2710, Subp. 1 Initial Evaluations

Conciliation Conference Timeline

Recommendation 13: To be decided at 1/14/14 meeting. (Possible recommendation: Amend rule language to be consistent with state statute regarding when a conciliation conference timeline begins.)

Rationale: Minn. Stat. 125A.091, Subd. 7 states that “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.” In contrast, Minn. R. 3525.2500, Subp. 1a(A) states that “a conciliation conference must be held within ten calendar days from the district’s receipt of the parent’s agreement or request to participate in a conciliation conference.” These differing standards cause confusion in the field. The rule language should be amended to reflect the statutory language “from the date the district receives a parent’s objection” to have consistent language between state statute and rule so it is clear when the timeline affecting a conciliation conference is triggered.

Statute: Minn. Stat. § 125A.901 Alternative Dispute Resolution and Due Process Hearings, Subd. 7 Conciliation conference

Rule: Minn. R. 3535.3700, Subp. 1a (A)

Conciliation Conference

Recommendation 14: The task force recommends amending the rule to reflect statutory language. Specifically, the task force recommends amending Minn. R. 3525.3700, Subp. 1a(D) by changing the word “business” to “school” to reflect the statutory language. The task force also recommends amending the rule by changing the word “serve” to “provide” to be consistent with state statute.

Rationale: Minn. Stat. § 125A.091, Subd. 7 uses the term “school days” when stating when the memorandum must be sent to a parent following a conciliation conference. In contrast Minn. R. 3525.3700, Subp. 1a (D) uses the term “business days” when stating when the memorandum must be sent to a parent following a conciliation conference. Thus, Minn. R. 3535.3700, Subp. 1a(D) should be amended by changing the word “business” to “school” to reflect the statutory language. Additionally, Minn. R. 3525.3700, Subp. 1a(E) states that the parents must be “serve[ed]” with the memorandum following the conciliation conference. Whereas, Minn. Stat. § 125A.091, Subd. 7, states that the memorandum following the conciliation conference is “provid[ed]” to the parent. Lastly, the task force also recommends amending the rule by changing the word “serve” to “provide” to be consistent with state statute.

Statute: Minn. Stat. § 125A.091, Alternative Dispute Resolution and Due Process Hearings, Subd. 7. Conciliation conference

Rule: Minn. R. 3525.3700, Conciliation Conference, Subp. 1a(D)

Hearing Officer Requirements

Recommendation 15: To be decided at 1/14/14 meeting. (Possible recommendation: Amend rule language with Don’s recommended language.

Rationale: Different requirements for hearing officer qualifications are set out in state statute and rule. In addition, 34 C.F.R. 300.511(c)(1) also sets forth impartial hearing officer requirements. The multiple standards for hearing officer requirements are confusing to the field.

Statute: Minn. Stat. 125A.901 Alternative Dispute Resolution and Due Process Hearings, Subd. 14. Request for hearing

Rule: Minn. R. 3525.2900 Initiating a Due Process Hearing, Subp. 2 Parent Request for hearing

Request for Hearing

Recommendation 16: The task force recommends making no changes to the rule.

Rationale: Minn. R. 3525.3900 includes additional requirements that must be provided when a parent submits a request for a hearing then those set out in statute. The rule and statute must be read together. No changes are needed at this time.

Statute: Minn. Stat. § 125A.091, Alternative Dispute Resolution and Due Process Hearings, Subd. 14. Request for hearing

Rule: Minn. R. 3525.3900, Initiating a Due Process Hearing, Subp. 2. Parent request for hearing

Burden of Proof

Recommendation 17: To be decided at 1/14/14 meeting. (Possible recommendation: Amend the rule to reflect the burden of proof set out in state statute.)

Rationale: Minn. Stat. 125A.091, Subd. 16 states that the burden of proof at a due process hearing is on the party seeking relief. In contrast, Minn. R. 3525.3900, Subp. 4(F) states that the burden of proof at a due process hearing is on the district. These contrasting standards for the burden of proof are confusing to the field and should be reconciled. The rule should be amended to reflect the burden of proof set out in the statute.

Statute: Minn. Stat. § 125A.091 Alternative Dispute Resolution and Due Process Hearings, Subd. 16. Burden of Proof

Rule: Minn. R. 3900 Initiating a Due Process Hearing, Subp. 4(F). Requirements of basic procedures and safeguards notice

Expedited Due Process Hearing Timeframe

Recommendation 18: The task force recommends amending the rule language to be consistent with statutory language. Specifically, the word “calendar” in the rule where it says “ten calendar days” to be changed to read “school days” to be consistent with state statute. Furthermore, the task force recommends leaving the use of the phrase “calendar days” in the rule language in reference to an extension in an expedited due process hearing due to the purpose of an extension in the hearing process.

Rationale: Minn. R. 3525.4770 uses the phrase “calendar days” in reference to when the decision shall be made in an expedited hearing. Minn. Stat. § 125A.901, Subd. 19, uses the phrase “school days” when referring to when the hearing must be held. The uses of both “calendar days” and school days” regarding the timelines for expedited hearings causes confusion in the field. The word “calendar” in the rule where it says “ten calendar days” should be changed to read “school days” to be consistent with statutory language. The task force recognizes that the rule language does use the phrase “calendar days” in reference to an extension and believes this is appropriate and should not be changed.

Statute: Minn. Stat. § 125A.091 Alternative Dispute Resolution and Due Process Hearings, Subd. 19. Expedited due process hearings

Rule: Minn. R. 3525.4770 Expedited Hearing Timelines, Subp. 8. Decision