Click on a heading to expand or collapse that heading’s content.
- What is special education?
Special education programs in Minnesota are governed by both federal and state law. In most instances they are the same or very similar. In some cases, state law may provide more protections than federal law. State law never limits the protections offered under federal law. Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE).
- Who is eligible for special education?
Children with a qualifying disability in need of specialized educational services in order to benefit from their education are entitled to receive special education and related services. Eligible disabilities include:
- hearing impairment;
- visual disability;
- speech or language impairment;
- physical disability;
- other health impairment;
- mental disability;
- emotional/behavioral disorder;
- specific learning disability;
- traumatic brain injury;
- multiple disabilities; and
- deaf-blind disability.
Minn. Stat. § 125A.02(1). Additionally, every child under age three, and at a school district’s discretion, from age three to age seven, who needs special instruction and services because the child has a substantial delay or has an identifiable physical or mental condition known to hinder normal development is a “child with a disability.” Minn. Stat. § 125A.02(1a). A child with a short-term or temporary physical or emotional illness or disability is NOT a “child with a disability.” Minn. Stat. § 125A.02(2).
A child is NOT eligible for special education if the determining factor in the child’s exceptional needs is a lack of instruction in reading, a lack of instruction in math, or limited English proficiency. 20 U.S.C. § 1414(b)(5); 34 C.F.R. §300.306(b).
- What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE). FAPE means special education and related services that are provided at public expense and without charge, meet appropriate standards, include preschool through secondary education, and conform with an Individual Education Program (IEP). 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. Special education must be provided in the least restrictive environment (LRE). To the extent appropriate, all students with disabilities should be educated with students who are not disabled. 34 C.F.R. § 300.114.
Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities. Specially-designed instruction is defined as “adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. § 300.39(b)(3).
An “appropriate” educational program and placement is one which is designed to meet a student’s unique needs in accordance to his or her IEP and allows him or her to obtain “educational benefit.”
- In addition to a free appropriate public education, are there other services to which a child with a disability is entitled?
Minnesota school districts are required to provide extended school year (ESY) services to a student if a student’s IEP team (described below) determines that such services are necessary. Minn. R. 3525.0755(1).
At least annually, a student’s IEP team must determine whether a student is in need of ESY services by assessing whether any of the following conditions are applicable with respect to the student:
- there will be significant regression of a skill or acquired knowledge from the student’s level of performance on an annual goal (as articulated in a student’s IEP) that requires ESY services;
- ESY services are necessary for the student to attain and maintain self-sufficiency because of the critical nature of the skill addressed by an annual goal, the student’s age and level of development, and the timeliness for teaching the skill; or
- the IEP team otherwise determines, given the student’s unique needs, that ESY services are necessary to ensure the student receives a FAPE.
Minn. R. 3525.0755(1). The IEP team must decide the basis for determining whether a student is eligible for ESY services using information including:
- prior observation of the student’s regression and improvement over the summer;
- observation of the student’s tendency to regress over extended breaks in instruction during the school year;
- experiences with other students with similar needs; and
- other relevant factors unique to the student.
Minn. R. 3525.0755(4). An IEP team may authorize medical services covered under the medical assistance state plan including:
- occupational therapy;
- physical therapy;
- speech-language therapy;
- clinical psychological services;
- nursing services;
- school psychological services;
- school social work services;
- personal care assistants serving as management aides;
- assistive technology devices;
- transportation services;
- health assessments; and
- other services covered under the medical assistance state plan.
Minn. Stat. § 256B.0625(26). Mental health services eligible for medical assistance reimbursement must be provided or coordinated through a children’s mental health collaborative, if possible. Minn. Stat. § 256B.0625(26).
- Who provides special education?
The state education agency and the local school district are both responsible for ensuring that appropriate special education services are delivered. In Minnesota, services are typically provided by the school district. If the school district fails to ensure services, the Minnesota Department of Education is ultimately responsible for providing special education services. 20 U.S.C. §1413(a)(1); 20 U.S.C. § 1412(a)(11); 34 C.F.R. §300.149; Minn. R. 3525.1100.
Minnesota law provides that a student’s district of residence is responsible for assuring that an appropriate program is provided for all eligible students placed by the district’s team, regardless of where the student is placed. Minn. R. 3525.0800(1).
- Where should a child receive his or her special education and related services? What is a “least restrictive environment”?
Special education must be provided in the least restrictive environment. To the maximum extent appropriate, children with disabilities must be educated with their nondisabled peers. Minn. Stat. § 125A.08(b)(5). Students with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that education in regular classes with the use of supplementary services cannot be achieved satisfactorily. 20 U.S.C. §1412(a)(5)(A); 34 C.F.R. §300.114; Minn. Stat. § 125A.08(b)(5).
Specialized education can be offered in the mainstream classroom, in a resource room, at home, or in hospitals or residential programs. Minn. R. 3525.3010.
- How is a child determined to be eligible for special education? Is there an assessment or evaluation?
School districts conduct evaluations to determine if a child qualifies as having a disability. A school district MUST obtain informed consent from the child’s parents prior to conducting the evaluation. If a child’s parent refuses to consent to the evaluation, the district may continue to pursue an evaluation by utilizing mediation and due process procedures. Minn. R. 3525.2710(1).
A school district’s evaluation must be able to determine (i) if a child has a disability that adversely impacts that child’s educational performance, and (ii) the educational needs of the student. Minn. R. 3525.2710(1). A child is evaluated in all areas of suspected disability (including health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities if appropriate).
- Tests and other evaluation materials must be selected and administered so as not to be discriminatory on a racial or cultural basis.
- Evaluations and other tests must be administered in the student’s native language or other mode of communication.
- For students with limited English proficiency, the evaluation must measure whether the student has a disability and NOT the child’s English language skills.
- Tests must also be administered so as best to ensure that, if administered to a child with impaired sensory, manual, or speaking skills, the results accurately reflect the child’s aptitude or achievement level. All assessment tools must be valid and administered by trained and knowledgeable personnel.
Minn. R. 3525.2710(3).
Upon completing the evaluation, the determination of whether the child is a student with a disability is made by a team of qualified professionals and the parent of the student. Minn. R. 3525.2710(3).
An evaluation report must be completed and delivered to the student’s parents within the specified evaluation timeline. At a minimum, the evaluation report must include:
(i) a summary of all evaluation results;
(ii) documentation of whether the student has a particular category of disability;
(iii) the student’s present levels of performance;
(iv) the student’s educational needs that derive from the disability; and
(v) if special education is necessary or (for reevaluations) if adjustments to the former IEP are necessary.
Minn. R. 3525.2710(6).
- Once a child is identified as being eligible for special education, what are the next steps? What is an “IEP” (Individualized Education Program)? Do parents have any say so in the IEP?
Once it is determined that a child is eligible for special education, an IEP is developed for that child. An IEP outlines in writing the educational program for the student. It is developed at a meeting by an IEP team.
An IEP Team must include:
(i) the parents of the student;
(ii) at least one regular education teacher of the student;
(iii) at least one special education teacher of the student;
(iv) an administrative designee; and
(v) an individual who can interpret the instructional implications of evaluation results.
Whenever appropriate, the student may also be a member of his or her IEP team. Minn. R. 3525.2810(1).
An IEP includes:
- the student’s present levels of educational performance;
- measurable annual goals;
- the special education services to be provided to the student;
- an explanation of the extent, if any, to which the student will not participate with students in the regular class;
- any accommodations for taking standardized tests;
- the projected date for the beginning, frequency, and duration of the services; and
- transition services needed for students age 14 or older.
Minn. R. 3525.2810(1). A student’s IEP team must review the student’s IEP at least annually to determine whether the annual goals for the student are being achieved. The IEP team may revise the IEP as appropriate to address lack of expected progress toward annual goals. Minn. R. 3525.2810(3).
Minnesota law provides for significant parent involvement. Parents are afforded the right to participate at each IEP meeting and to bring anyone of their choosing to accompany them to an IEP meeting. Minn. R. 3525.0700.
Parents have a right to object in writing to any action the district proposes within 14 calendar days of notice of that action being provided to them. Upon receipt of such written objection, the district will ask the parents to attend a conciliation conference. The parents and the district may also agree to use mediation, or a facilitated individualized education program (IEP) team meeting to resolve their disagreement. The district must continue to provide an appropriate education to the child during the proceeding of a due process hearing.
- What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
If a parent believes the district has failed to implement a valid IEP, has failed to follow special education law, or is discriminating against a student or a group of students, the parent may file a complaint directly with the Minnesota Department of Education (MDE). The MDE will investigate and will issue a decision regarding non-compliance within sixty days. (See MDE’s “How to File a Special Education Complaint for Part B,” July 2010 at http://education.state.mn.us/MDE/SchSup/SpecEdComp/ComplMonitor/Comp/index.html).
Parties can object to the IEP, including disputing the:
(i) identification of disability;
(iii) educational placement;
(iv) interim alternative educational placement; and
(v) IEP itself.
Parents are encouraged to resolve disputes 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 are provided at no cost to the parent. Minn. Stat. § 125A.091.
- What options does a parent have if s/he disagrees with the proposed IEP placement or services? What are the procedures for due process?
The district must give written notice to parents whenever it implements a new IEP, changes any existing aspect of an IEP, or refuses any requests from the parent. The district must serve the notice on the parent within a reasonable time, and in no case less than fourteen calendar days before the proposed effective date of change or evaluation. If the notice only includes a refusal of a request, it must be served on the parent within fourteen calendar days of the date the request was made. Minn. R. 3525.3600.
If a parent disagrees with a proposed IEP, or believes the district has not upheld an IEP, the parent is entitled to file for due process. A hearing request must include:
- certain identifying information;
- a description of the problem, 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.
Minn. Stat. § 125A.091.
If the parent files a written request for a hearing, and the school district has not previously sent the parent a written explanation regarding the parent’s objection, the school district must a written explanation of the district’s action brought up by the parent within 10 days of receiving the request. The explanation must include:
(i) a description of other options that IEP team considered and the reason why those options were rejected;
(ii) 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
(iii) a description of the factors that are relevant to the school district’s proposal or refusal.
Minn. Stat. § 125A.091. A parent’s request for a hearing is sufficient unless the district notifies the hearing officer and the parent in writing within fifteen days of receiving the request that the district believes the request does not meet the requirements. Within five days of receiving such notice, the hearing officer must make a determination and notify the parties. Minn. Stat. § 125A.091. Once requirements for notice are established and met, the commissioner will appoint a hearing officer, and within five business days of such appointment, a prehearing conference must be held. Once the hearing itself is complete, the hearing officer must render a decision not later than forty-five days after the thirty-day period or the adjusted time periods under federal regulations expire. Minn. Stat. § 125A.091.
- Can a special education student be disciplined?
Yes, school personnel may suspend a child with a disability.
When a child with a disability has been suspended for more than five consecutive school days or ten cumulative school days in the same school year, and that suspension does not involve a recommendation for expulsion or exclusion or other change of placement under federal law, relevant members of the child’s IEP team, including at least one of the child’s teachers, must meet and determine the extent to which the child needs services in order to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals in the child’s individualized education program. Such meeting must occur as soon as possible, but no more than ten days after the sixth consecutive day of suspension or the tenth cumulative day of suspension has elapsed. Minn. Stat. §121A.43.
Before initiating an expulsion or exclusion, the district, relevant members of the child’s IEP team, and the child’s parent must hold a “manifest determination” meeting. This meeting is to determine the cause of the behavior—if the behavior was caused by or directly related to the child’s disability, or if it was a result of a failure to implement the IEP. If the cause is not related to the child’s disability, the district must continue to provide special education and related services during the exclusion or expulsion. Minn. Stat. § 121A.43. A manifest determination meeting must be held within ten days of the school’s decision to expel the student or change his placement. The team must consider two issues: (i) was the behavior caused by, or did it have a direct and substantial relationship to, the child’s disability; and (ii) was the behavior the direct result of the school’s failure to implement the IEP?
If the team answers yes to either question, the child cannot be expelled and a placement change would require the consent of the parent or a hearing officer’s order. If the IEP team determines that the behavior is a manifestation of the child’s disability, the child must return to his original placement, unless the parents and school agree otherwise. The school must also do a behavioral assessment for the student or modify the student’s existing behavior plan to address the behavior. If the team denies that the behavior is a manifestation of the child’s disability, the parent may appeal by requesting a due process hearing. The appeal should be resolved within thirty days, and in the interim, the child remains in the interim educational setting. 20 U.S.C. § 1415(k)(1)(F); 34 C.F.R. §300.530(f).
Students with disabilities must continue to receive educational services during any period of suspension beyond ten days, any period of interim placement, and any period of expulsion. 20 U.S.C. § 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R. § 300.530(d)(1). The services a child receives under these circumstances must enable the child to continue to participate in the general curriculum and to continue to progress toward meeting his or her IEP goals and to receive needed behavioral assessments and services. 20 U.S.C. §1415(k)(1)(D); 34 C.F.R. § 300.530(d)(1)(i)-(ii).
Minnesota also has a policy that requires that students demonstrating serious behavior problems to be assessed and a behavior intervention plan to be implemented, if necessary. Such a plan becomes part of the child’s IEP and must include its own goals and objectives and must therefore be reviewed regularly. This policy is intended to encourage the use of positive approaches to behavioral interventions. The objective of any behavioral intervention must be that students acquire appropriate behaviors and skills. It is critical that behavioral intervention programs focus on skills acquisition rather than merely behavior reduction or elimination. Behavioral intervention policies, programs, or procedures must be designed to enable a student to benefit from an appropriate, individualized educational program as well as develop skills to enable them to function as independently as possible in their communities. Minn. R. 3525.0850.
- Can parents see the school records of their special education child?
A parent is entitled to inspect, review and get a copy of all of a child’s school records. Minn. Stat. § 13.32. The records of a child with a disability may accessed as frequently as the parent desires. An agency or institution may not charge a fee to search for or to retrieve the educational records. An agency or institution that receives a request for copies of the educational records of a child with a disability may charge a fee that reflects the costs of reproducing the records except when to do so would impair the ability of the child’s parent or guardian, or the child who has reached the age of majority, to exercise their right to inspect and review those records. Minn. Stat. §13.32.