The legal framework surrounding special education services to students is mostly federal, but Minnesota state laws and regulations also govern the way special education is offered and funded. The most significant federal law governing special education is the Individuals with Disabilities Act (IDEA), which requires states to provide a Free Appropriate Public Education (FAPE) to all students in the Least Restrictive Environment. If a child is eligible for special education services, they must have an Individualized Education Plan or an IEP.
The Lento Law Firm is a Nationwide IEP Firm
The Lento Law Firm is a nationwide firm of experienced education attorneys. The Lento Law Firm Student Defense Team represents parents fighting for Individualized Education Plans (IEPs) that adequately address the needs of their child. You can contact us by describing your case online and we will contact you or call us at 888-535-3686.
News Coverage of Special Education Funding
Throughout the spring of 2023, the Minnesota State Legislature debated and eventually passed a landmark education funding bill providing $2.2 billion in additional funding and addressing shortfalls in the funding of special education in Minnesota. The term “cross-subsidy” was used throughout negotiation by state leaders.
A cross-subsidy is the difference between what a school district pays for special education services and what the district receives in funding from federal and state sources for special education. The 2023 Education Bill sought to provide funding to cover the cross-subsidy shortfall experienced by many Minnesota school districts. There does appear to be a great deal of energy calling for the complete elimination of cross-subsidies in Minnesota, with several major newspapers advocating for complete funding at the state level. In short, special education is receiving more funding and more attention in Minnesota than at any time since the passage of IDEA in the 1970s.
A Report Card for MN Special Education
The US Department of Education rates the implementation of IDEA, parts B and C, by each state. Minnesota was one of few states to receive a “Meets Expectations” rating in both areas. This is certainly a sign that special education services can be done very well in Minnesota. This does not mean that all school districts and administrators will do well with all students. But it does mean that the standards are good. If you are having difficulties in securing the type of services that you know your child needs, get help and seek review.
Minnesota School Choice and Special Education
Students with disabilities have yet to benefit from the promises of Open Enrollment in Minnesota. The school district in which a student resides is responsible for the cost of special education even if the student attends a school in another district, including a private or charter school. The enrolling district (the school the student attends) will plan and provide special education services, but the resident school district is responsible for the cost. The resident school district may have a representative on the IEP team, but they will not control funding issues. Even in an Open Enrollment state like Minnesota, where you live matters when you seek special education services for your child.
Homeschoolers and Special Education
Parents who homeschool their children may become concerned about special education needs and services. Under Minnesota Statute 125A.18, homeschoolers are eligible for the same special education services as students who attend district schools.
IEPs in Minnesota
The IEP process in Minnesota involves an evaluation to determine if a child has a disability and needs special education. If the evaluation reveals a disability, the next step is an IEP Team Meeting, which will begin the drafting of the IEP. If the parent and school district cannot agree, they may continue to engage in voluntary efforts to compromise, or the issues may be heard in a Due Process Hearing. Parents have appeal rights to the Minnesota Department of Education and (eventually, if necessary) to court,
What is a Disability?
There are currently 13 disability categories recognized by federal and Minnesota state law:
- Autism Spectrum Disorders (ASD)
- Deaf and Blind (D/B)
- Deaf or Hard of Hearing (D/HH)
- Developmental Cognitive Disabilities (DCD)
- Developmentally Delayed (D/D)
- Emotional or Behavioral Disorders (EBD)
- Other Health Disabilities (OHD)
- Physically Impaired (PI)
- Severely Multiple Impaired (SMI)
- Specific Learning Disabilities (SLD)
- Speech or Language Impairments (S/LI)
- Traumatic brain injury (TBI)
- Visually Impaired (VI)
A student may have multiple disabilities and may be diagnosed with more than one of these listed disabilities.
Assessment of Disability
The process of securing special education services in Minnesota begins with an Evaluation and Assessment of the student's abilities.
The assessment shows where the student is at the time (baseline) and sets goals for the future. Every IEP should include a method of assessment to measure progress toward goals.
In Minnesota, the evaluation of whether a child is disabled must include the parent or guardian.
Under Minn. R. 3525.2710(3)(D), a qualified professional must make a determination of disability in consultation with a parent or guardian. The parent or guardian will be able to provide information on how the child's disability has affected all aspects of school performance. Critically, the parent or guardian must give informed consent for the evaluation.
In Minnesota, a parent has an absolute right to refuse testing.
Under Minn. Stat. 125A.091(2022), a school district may not override the written refusal of a parent to consent to an evaluation of a child.
Testing Conditions
Testing must be done in the child's native language (but remember that a failure to speak or understand English is not a disability). Testing must be done in such a way that the child's true aptitude is measured.
Contents of Evaluation under MN Regulations
Minn. R. 3525.2710(6) requires that an Evaluation Report must contain a summary of test results, the present level of performance, a determination if special education is required, and a description of special needs arising from the disability.
IEP Meeting
If a student is found to have a disability, the next step in the process is an IEP Meeting, which is a meeting of people involved in a student's education.
The IEP Meeting must include the following people:
- The parent or parents or guardian of the student.
- The special education teacher.
- The regular classroom teacher.
- A representative from the school district.
- Available expert on the student's disability – might be a speech therapist, psychologist, or other treating therapist.
The special education or regular teacher cannot come to the IEP Meeting with a plan, as the meeting is collaborative. The teacher should be listening to the parent and thinking creatively—not trying to control and force any agenda.
Contents/Sections of IEP in Minnesota
An IEP in Minnesota must contain the following content:
- Present level of educational performance (PLEP). This aspect should describe how a particular disability affects education. This should involve testing results and observation.
- Annual goals and shorter-term objectives. Goals should be measurable. Shorter-term objectives should describe small steps to the larger goal. Minnesota law requires that the team review the IEP annually (at least), and Minn. R. 3525.2810(3) provides that the team revise an IEP as appropriate to address a lack of progress.
- Adaptations. This should describe how the classroom expectations may need to change, considering the disability.
- Related Services. This portion will describe the services the student needs to be successful. The student must get a service if it is necessary for the FAPE. This portion should describe what help the student needs and the length and timing of these services.
- Transition plan. If a student is over the age of 14, the IEP should include plans for after the student turns 18.
Adaptations and Related Services
The purpose of an IEP is to plan Adaptations and Related Services and describe the scope of what the school district must provide to a student. An Adaptation is a change in the expectations of the child in the classroom. A Related Service is offered beyond the classroom for a child to receive a FAPE.
According to the Minnesota Department of Education, “related services in schools” may include but are not limited to the following:
- Audiology
- Counseling services
- Early identification and assessment of disabilities in children
- Interpreting services
- Medical services (for diagnostic or evaluation purposes)
- Occupational therapy
- Orientation and mobility services
- Parent counseling and training
- Physical therapy
- Psychological services
- Recreation, including therapeutic recreation.
- Rehabilitation counseling
- School health services and school nurse services
- Social work services in schools
- Speech-language pathology services
- Transportation
If the parties disagree, that disagreement is most likely to occur around Related Services.
School District's First IEP
Following the IEP Meeting or Meetings, the school district will move to write up an IEP. The school district must send a copy of the IEP to the parents.
After receipt of the IEP, parents have the following rights:
- Parents have a right to object to any action of the school district:
- In writing.
- Within 14 days of receipt.
- Model Form to Object or Consent.
- After receipt of objections, the school district will ask the parent to attend a conciliation conference, which may lead to mediation. Under Minn. Stat. 125A.091 (subd 6), dispute resolution must be provided at no cost to the parents.
- If they cannot agree, the matter will proceed to a Due Process Hearing.
Conciliation Conference or Mediation
If the parents do not agree, the process moves to conciliation, which is an attempt to bring the parties to agreement. This may involve mediation, which is a non-binding effort by a neutral observer to help the parties settle on a compromise. Sometimes, this process works if the parties have some agreement in some areas. But if the parties are at odds over the basics, this step may not be successful. If the parties cannot arrive at an agreement, the hearing officer will decide all disputed issues at a Due Process Hearing.
Due Process Hearing
Under Minn. Stat. 125A.091 (subd.14), the parent can request a hearing by providing a description of the problem and a proposed solution, with supporting documentation. This objection is adequate unless the school district objects within 15 days. A hearing officer will decide the issues set forth by the parent under 125A.091.
The hearing officer can order the school district to provide services if they find the district has failed to provide the child with a FAPE. This may mean “direct or indirect special education” or “related services.”
Minnesota Department of Education Complaint
Parents have the option of pursuing a Complaint with the Minnesota Department of Education if a school district has failed to implement an IEP, has failed to follow Minnesota state or federal law, or is discriminating against the student. The MDE will investigate and will issue a decision, sometimes within 60 days. The Complaint may go to the identification of disability, the educational placement decisions, the evaluation, or the IEP itself.
The Complaint must be signed and must involve an allegation that has occurred in the last year. Any parent filing an MDE Complaint must send or give a copy to the school district.
If a Due Process Hearing is scheduled, the Department of Education will hold the Complaint until the hearing has ended.
Compensatory Educational Services
If your child has been underserved for some time, the school district's failure may have significantly damaged your child's learning status. This may result in your child falling behind, with a need for more enriched services to “catch up” and make up for a lack of appropriate special education despite your efforts. The Hearing Officer can order these services if your child has lost an educational benefit due to the school district's failure to provide a FAPE.
When an Attorney is Necessary
Parents often ask if hiring an attorney is necessary in an IEP matter. The answer is that it depends on the situation, but parents will usually need assistance in advocating for services. The greater the needs of the student, the more resistance the parent will face. In many instances, the school district and the parents simply cannot agree despite months of meetings and best efforts. The effort of the parent to secure these services may have resulted in bruised feelings on the team, and the parent may even begin to suspect retaliation against the student or siblings. If a stalemate has set in or the situation is deteriorating, it is unlikely to improve without the intervention of counsel. If you are asking yourself if it is time to hire an experienced education attorney, the answer is probably “yes, it's time.”
The Great Equalizer
An IEP meeting or hearing is full of professionals—teachers, administrators, medical or treating staff, and a representative or attorney from the school district. An attorney on your side of the table is a great equalizer in this situation. The power dynamics of a hearing shift are decidedly in your favor when you have an experienced and tough advocate.
As a parent or guardian, you are your child's best protector and cheerleader. But you may not be the best advocate in an IEP dispute. Advocacy is more than speaking up—it requires organization, evidence, and the ability to present evidence in a persuasive way. The school district will likely have defense counsel at the hearing, and this counsel may have represented the school district many times in the past. The Hearing Officer may be familiar with the defense counsel and will likely not be familiar with the parent. The opinions of parents are often discounted because of emotional involvement in issues. An attorney and expert testimony will counterbalance this effect.
Cost of Special Education Services
Minnesota uses a student-based model of special education funding. The school district may seek to argue that the cost of special services creates a hardship for the school district, but funding is based on a formula and assumes significant costs for some disabilities.
Funding for Special Education in Minnesota in 2022 depends on the level of disability:
At level one, the cost is $9,870 per student.
At level two, the cost is $16,582 per student.
At level three, the cost is $23,472 per student.
At level four, the cost is $32,604 per student.
If a student is evaluated as having a particular disability or having aggregate disabilities, the cost increases. As stated earlier, the Minnesota Legislature has moved to cover budget shortfalls (cross-subsidies) for school districts.
IEP Disputes Can Become a War Over Resources
Special education can be a war over resources. The school district may want to spend less. But the parent wants services that their child desperately needs. The legal secret is that the school should not limit student services based on money. Period. The 2023 Education Bill is a clear indication that special education will be funded in Minnesota and that this funding is a priority for lawmakers.
Attorney's Fees
IDEA contains a fee-shifting provision that provides that parties that prevail in a Due Process proceeding will receive payment of their attorney's fees. While no attorney will promise to win your case and secure attorney's fees, an experienced education lawyer can advise you of the strengths and weaknesses of your case and assess your chances of recovering fees.
What Your Special Education Attorney Can Do
- Get your child's files – all of them.
- Assess the strengths and weaknesses of your case.
- Prepare for and attend the IEP meeting.
- Review the IEP or other paperwork before you sign it.
- Prepare for and attend the Due Process Hearing.
- Prepare an appeal, if necessary.
Recommendation for Improvements in MN Special Ed
The Education Policy Innovation Center (EPIC) offers the following recommendations for improving special education in Minnesota Schools.
- Advocate for full federal funding of IDEA. When Congress passed IDEA in the 70s, it promised to fund 40% of the cost for states. Last year, the federal government provided roughly 18% of the cost of special education. States like Minnesota are left to pick up the shortfall.
- Limit paperwork requirements that go beyond federal requirements. Paperwork is important but filling out redundant paperwork burdens teachers and other professionals unnecessarily.
- Implement the 2013 OLA Report on Special Education. This Report contained a variety of policy recommendations, many of which are now being considered in Minnesota.
- Fund a statewide online IEP system. The state of Minnesota should have an online IEP system such that all parties have access to documents for better decision-making and review.
- Hire and train more ESPs (education support professionals) for special education classrooms. As staffing shortages become more critical in schools, ESPs play an increasingly vital role.
- Targeted Policy Initiatives EPIC advocates for several reforms and improvements in special education in Minnesota.
Five Things to Remember About a Minnesota IEP
- An IEP is a legally binding document. If the school district fails to follow it, you can file a formal complaint based on noncompliance.
- Any modification to the IEP must be reduced to writing and agreed to by the parties.
- If any person necessary to the EIP meeting is not available, the parent must consent, or the meeting must be rescheduled.
- A parent should ask for data collection in the IEP so that progress can be monitored. This data must be provided periodically and in a timely way to the parent.
- Parents must receive prior written notice of a change in the IEP, and the process begins again.
Lento Law Firm Team Represents Minnesota Parents or Guardians
As a nationwide law firm, the Lento Law Firm Team can represent Minnesota parents or guardians in the Twin Cities, farming communities, small towns, or suburbs. We understand that the culture of a community will be reflected in schools and the educational decisions of local administrators. Wherever you live in Minnesota, your child has a right to receive special education services necessary for their education. We will vigorously fight for those services while showing balanced respect. If the fight for an IEP is wearing you down, call the Lento Law Firm Team. You can contact us by describing your case online or call at 888-535-3686.
