POLICY LETTER: October 4, 2010 to School Law Center, LLC attorneys Amy Goetz and Atlee Reilly

October 4, 2010Amy Goetz and Atlee ReillyAttorneys at LawSchool Law Center, LLC.452 Selby Avenue, Second Floor EastSaint Paul, Minnesota 55102Dear Ms. Goetz and Mr. Reilly:This is in response to your June 29, 2010 letter to Dr. Perry Williams in the Office of Special Education Programs (OSEP) at the U.S. Department of Education (Department). Your letter poses the following question and asks for an interpretation from the Department:Does a requirement based solely on an interpretation of state law, that a child with a disability must request a due process hearing before enrolling in a new school district or forever lose the right to a hearing for special education violations that may have occurred in that district, conflict with 20 U.S.C. 1415(b)(6) and related provisions of the Individuals with Disabilities Education Act [IDEA]?You cite Minnesota law, which provides in relevant part: 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 [FAPE] is provided according to state and federal law. Minn. Stat. 125A.091. This statute requires that the hearings conducted by the State be held in the local educational agency (LEA) responsible for the provision of FAPE to the child at the time the hearing is conducted. (OSEP understands that Minnesota is a one tier State with regard to due process hearings, meaning that hearings are conducted by the State, not by the child's LEA with an appeal process to the State.) You explain that the Eighth Circuit Court of Appeals has concluded that due to this State statute, if a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved. Thompson v. Board of Special Sch. Dist. No 1, 144 F.3d 574, 579 (8th Cir. 1998). You also point out that the case has been affirmed several times by the Eighth Circuit as recently as 2010. Indeed, in C.N. v. Willmar Public Schools, 591 F. 3d 624 (8th Cir. 2010), the Court found that changes to Minn. Stat. 125A.091 were irrelevant and reaffirmed its opinion in Thompson. You also noted that the Minnesota Department of Education recently amended its Notice of Procedural Safeguards to include the following:Loss of Right to a Due Process Hearing NOTE: If your child changes school districts and you do not request a due process hearing before your child enrolls in a new district you lose the right to have a due process hearing about any special education issues that arose in the previous district. See Thomson v. Bd. of the Special Sch. Dist. No. 1, 144 F.3d.574 (8th Cir. 1998) [sic]. You do still have a right to request a due process hearing about special educational issues that may arise in the new district where your child is attending.Under 34 CFR 300.507(a), which mirrors 20 U.S.C. 1415(b)(6) of the Individuals with Disabilities Education Act (IDEA), 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 di