Subpart
1.
Request to be filed with department.
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. A request for a due
process hearing must be in writing and filed with the department. A school
district administrator receiving a request for a due process hearing must
immediately file the request with the department and in no case more than two
business days following receipt of the request. If the request for a due
process hearing is filed directly with the department, the department must
notify the district of the request immediately and in no case more than two
business days following receipt of the request. The department must not deny a
request for hearing if it is incomplete. When a district is notified of a due
process hearing request it must serve notice on the parent, within two business
days, which includes the federally required procedural safeguards notice and
the information required under subpart
3, item J, if it has not
already done so as part of the pending dispute.
Subp. 2.
Parent request for
hearing.
A parent request for hearing must include:
A. a statement indicating the parents request
a hearing;
B. the name and address
of the child involved;
C. the name,
address, and telephone number, if available, of the parent;
D. the name of the school the child is
attending at the time of the request;
E. the name or number of the school district
of the parent's residence;
F. a
description of the nature of the problem about the provision of special
education services to the student, including facts relating to the problem;
and
G. a proposed resolution of the
problem to the extent known and available to the parents at the time of the
request.
Subp. 3.
District request for hearing.
A district must serve a written notice of hearing on the
parents and file it with the department in order to initiate a hearing. The
notice must include:
A. a statement
that the district requests a hearing;
B. the name and address of the child
involved;
C. the name, address, and
telephone number, if available, of the parent;
D. the name of the school the child is
attending at the time of the request;
E. the name or number of the school district
of the parent's residence;
F. a
description of the proposed initiation or change, including facts relating to
the proposal or change;
G. a
proposed resolution of the problem;
H. a copy of the current or proposed IEP,
evaluation plan, and any relevant progress information;
I. a copy of the prior written notice;
and
J. a statement of the basic
procedures and safeguards for due process hearings that includes the items in
subpart
4.
Subp. 4.
Requirements of basic
procedures and safeguards notice.
The statement of the basic procedures and safeguards in
subpart
3, item J, must
include:
A. the names and telephone
numbers of any free or low-cost legal or other advocacy services available in
the area and a statement that both parties have the right to be assisted by
counsel and by individuals with special knowledge or training with respect to
the problems of children with disabilities;
B. a statement that the hearing will take
place before an impartial hearing officer assigned by the department. If the
department is the provider of services to the child, this statement must
indicate that the department will request the Office of Administrative Hearings
to appoint a qualified hearing officer;
C. a statement that the parent will receive
notice of the time, date, and place of the evidentiary hearing from the hearing
officer at least ten calendar days in advance of the evidentiary hearing. This
statement must also state that, with the exception of an expedited hearing, the
evidentiary hearing must be held within 30 calendar days from the date the
hearing request was filed with the department, at a location within the
district responsible for ensuring a free appropriate public education is
provided to the student;
D. a
statement that both parties have the right to present evidence and confront,
cross-examine, and compel the attendance of witnesses;
E. a statement that the hearing officer will
prohibit, at the request of either party, evidence not disclosed five business
days before the evidentiary hearing, including evaluations completed by that
date and recommendations based on those evaluations;
F. a statement that the burden of proof at a
due process hearing is on the party seeking relief, by a preponderance of the
evidence, that it is complying with the law and offered or provided a free
appropriate public education to the child in the least restrictive environment.
If the district has not offered or provided a free appropriate public education
in the least restrictive environment and the parent wants the district to pay
for a private placement, the burden of proof is on the parent to demonstrate,
by a preponderance of the evidence, that the private placement is appropriate;
G. a statement that, with the
exception of an expedited hearing for which a decision must be rendered within
ten days, the hearing officer will make a written decision based only on
evidence received and introduced into the record at the hearing not more than
45 calendar days from the date the hearing request was filed with the
department and that the proposed action or refusal will be upheld only upon
showing by the school district by a preponderance of the evidence;
H. a statement that the parent or district
may appeal a decision of the hearing officer to the Minnesota Court of Appeals
within 60 calendar days of receipt of the decision or to the United States
District Court for the District of Minnesota;
I. a statement that unless the district and
parents agree otherwise, the pupil shall not be denied initial admission to
school and the pupil's education program shall not be changed;
J. a statement that the parents have the
burden of proving, by a preponderance of the evidence, that services for which
the parents are paying or have paid, and for which the parents are seeking
public funds, are appropriate for the pupil. This statement must also indicate
that in order for parents to prevail, the hearing officer must have found that
the district has failed to provide a free appropriate public education in the
least restrictive environment;
K. a
statement that the parents may choose to have the pupil, who is the subject of
the hearing, present and that they may open the evidentiary hearing to the
public;
L. a statement that the
department will provide the parents with a written verbatim record of the
hearing, at no cost, as well as the findings of fact and decision;
M. a statement that parents prevailing at a
hearing may be entitled to reasonable attorney fees at the discretion of the
court; and
N. a statement that the
hearing officer may apply a statute of limitations that may limit the
complaints that will be heard.
Subp.
5.
Appointment.
The department must appoint a hearing officer within two
business days of the date the hearing request was filed with the
department.
