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Independent School District No. 192, Farmington v. Minnesota Department of Education: EDUCATION - Department of Education remedial action for Individuals with Disabilities Education Improvement Act deficiencies must be geared to them

STATE OF MINNESOTA
IN COURT OF APPEALS
A06-1905
Independent School District No. 192,
Farmington, Minnesota,
Relator,
vs.
Minnesota Department of Education,
Respondent.
Filed December 24, 2007
Reversed
Hudson, Judge
Department of Education
Complaint File No. 2298
Sara J. Ruff, 1820 Xenium Lane North, Plymouth, Minnesota 55441 (for relator school
district)
Lori Swanson, Attorney General, Martha J. Casserly, Assistant Attorney General, 1200
Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2130 (for respondent
department)
Margaret OSullivan Kane, Kane Education Law, LLC, Suite 200, 1654 Grand Avenue,
St. Paul, Minnesota 55105 (for amicus curiae)
Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge,
Judge.
S Y L L A B U S
When a school districts violations under the Individuals with Disabilities
Education Improvement Act are primarily related to deficiencies in the provision of
behavioral services, remedial action imposed by the Minnesota Department of Education
2
under 34 C.F.R. 300.660(b)(1) (2005-2006) must be designed to correct those
deficiencies.
O P I N I O N
HUDSON, Judge
This is a certiorari appeal from a decision by respondent the Minnesota
Department of Education (MDE) concerning the provision of special-education and
related services under the Individuals with Disabilities Education Improvement Act
(IDEA). Relator school district argues that (a) the MDE erred in awarding partial
reimbursement for private academic tutoring when the findings showed that the student
received appropriate academic instruction from his school; (b) the decision was based on
a flawed investigation; and (c) the decision was arbitrary. Because the MDEs
investigation was inadequate, and because partial reimbursement for the cost of private
tutoring was inappropriate in this case, we reverse.
FACTS
This appeal concerns a young boy (student) who attended school in Independent
School District 192 (school district) in Farmington, Minnesota, from 2004 to 2006.
When student was in kindergarten in 2004, the school district conducted an initial
investigation and found student to be eligible for, and in need of, special-education
services. Students primary disability was in the area of emotional or behavioral
disorders, characterized chiefly by his remarkably aggressive, assaultive behavior.
Accordingly, the school district developed an Individualized Education Plan (IEP) for
student in January 2005.
3
The January 2005 IEP placed student at federal setting I.1 The IEP listed five
goals for student, including to improve his interaction with others; improve his hand and
arm control; reduce the number of physical altercations with his peers; improve his
ability to follow directions and participate in classroom activities; and improve his
academic skills.
In September 2005, another IEP was filed because student had physical
altercations with peers. The IEP included changes for service minutes and a plan for
student to make use of the resource room for verbal and physical altercations.
Although students November 2005 progress report indicated that he made
adequate progress toward his goals, from September 2005 through November 2005,
students special-education teacher sent several e-mails to students father (father)
advising him of students academic difficulties and requesting that father work with
student at home. Two e-mails from the teacher, dated September 21, 2005, and
September 28, 2005, are representative. The September 21, 2005 e-mail stated: I
noticed that [student] has a very hard time with letter sounds and the high frequency
words that the class is working on this week. They are included in his take home folder.
He also had trouble with the math work. Anything you can do at home to help him
would be appreciated. The September 28, 2005 e-mail stated: Today [student] really
1 The federal setting refers to eight federal designations for levels that describe the setting
in which a child is to be educated. Level I includes [l]earners receiving the majority of
their education program in regular class. Includes children and youth with disabilities,
receiving special education and related services OUTSIDE THE REGULAR
CLASSROOM for less than 21 percent of the school day.
4
struggled with words that have a short a and short i sound. If you could go over these
words with [student] it would be helpful.
Following a similar e-mail on November 7, 2005, which discussed students
difficulties with counting money, father replied to the teacher: I dont know if I told you
but I hired a tutor for [student]. That same day, the teacher responded as follows:
Sounds like a good plan to have [student] get more help with academics. Id be happy
to fill [the tutor] in on the kinds of things Ive been working on with [student] as he isnt
doing all the regular first grade curriculum.
In December 2005, student was at a federal setting II.2 Students December 2005
IEP listed three goals for student: (1) to increase his ability to make positive choices in
his behavior and words with peers and adults through all interactions he has during the
school day; (2) to be able to follow directions, complete work, and otherwise attend to
activities and discussions within the classroom in order to be more successful in the
school environment; and (3) to increase his basic reading and math skills from a
kindergarten level to a level that is more at the current grade level.
Students January 2006 progress report showed that he continued to make
adequate progress toward his goals, but it also indicated that from November 7, 2005,
through January 20, 2006, student had ten physical altercations with other students and
one physical altercation with an adult in which he threatened a teaching assistant with a
2 Level II includes [l]earners receiving education programs in resource room. Includes
children and youth with disabilities receiving special education and related services
OUTSIDE THE REGULAR CLASSROOM for 60 percent or less of the school day and
at least 21 percent of the school day.
5
pair of scissors. The report also stated that there were days when he is physically
appropriate throughout the entire school day.
In February 2006, school officials filed a document noting that student has
randomly pushed, poked, pulled, choked, grabbed, thrown ice, kicked, etc. other students
which causes him to need to leave the classroom environment or other general areas and
spend time in the special education resource room or school office. The document also
noted that student threatened a teaching assistant with scissors towards her neck. As a
result of students behavior, the IEP team decided to make some significant changes to
students program:
Beginning February 6, [student] will be changed to the Level
III setting.[3] He will remain in the EBD classroom for the
entire day. He will not attend specialists but will be given the
opportunity to visit the library to check out books, will have
opportunities to use the student computer in the classroom,
and will have opportunities for art activities in the resource
room. He will continue to receive OT services. He will
continue with a separate recess time and will eat lunch in the
cafeteria but will not be with his regular first grade peers. He
will have a teaching assistant with him during the lunch
period.
The portion of the document reserved for Parent Action indicated that father agreed
with the decision to change students IEP and that a team member had [c]onversation
with parents via telephone (1-19, 1-20) and also with [father] in person, 2-6-06
3 Level III includes [l]earners receiving education programs in separate class includes
children and youth with disabilities receiving special education and related services
OUTSIDE THE REGULAR CLASSROOM for more than 60 percent of the school day.
DOES NOT include pupils who received education programs in public or private separate
day or residential facilities.
6
regarding the changes. But father maintained that he was not notified in advance that
these changes would be made and that no one sought his approval.
In March 2006, father approached the principal of students school to express his
concerns that student had not yet been returned to the general-education first-grade
classroom. An April 2006 progress report showed that student made adequate progress
on his three goals, and students April 2006 IEP showed a decrease in students specialeducation-
service minutes and a change from federal setting level III to level I.
Throughout his first-grade year, student was involved in more than 50 behavioral
incidents and was disciplined many times. These incidents included numerous
confrontations where student hit, choked, pushed, kicked, spat at, threatened, yelled at,
and tripped other members of his first-grade class. He was suspended from school on
March 17, 2006, for threatening to kill a student. Student was disciplined for his
behavior in various ways, including being curbed; out-of-school suspensions; in-school
suspensions; and recessing separate from the other students.
On May 15, 2006, father filed a complaint against the school district using the
MDEs complaint process. The complaint alleged that (1) the school district changed
students federal setting placement without providing father with prior written notice;
(2) the school district changed students federal setting placement without including
father in the group of people making the placement determination; (3) the school district
violated standards related to IEP implementation; (4) the school district violated
standards related to reporting progress on students annual IEP goals; and (5) the school
7
district failed to provide student with a free, appropriate public education (FAPE) during
the 2005-06 school year.
The MDE initiated an investigation of fathers allegations; both the school district
and father submitted various documents including students school records, copies of
e-mail communications, and psychological reports. The MDEs investigator also logged
several phone conversations over a period of almost three months, including
conversations with father and voice-mail messages to certain school-district officials.
On August 11, 2006, the MDE filed a detailed report of its findings of fact,
conclusions of law, and decisions on each of the five issues raised by fathers complaint.
The MDE sustained each allegation, finding multiple procedural and substantive
violations of the IDEA and state special-education laws. The MDE imposed corrective
action for each violation. Most of the violations and corresponding corrective actions
focused on: (1) the school districts failure to provide father with prior written notice of
the modification to students February 2006 IEP and the school districts related failure to
include father in the IEP development process; (2) the school districts failure to develop
an IEP for student that included positive behavioral interventions and its failure to
properly report students progress on his IEP goals; and (3) the MDEs determination that
because students IEP did not contain the needed positive behavioral supports, student
was not making progress on his annual IEP goals related to improving his behaviors.
Significantly, the MDE found that students behaviors and concomitant frequent
removals from class improperly segregated student from his peers and interfered with his
academic progress, necessitating father hiring a private tutor. Based in part on this
8
finding, the MDE concluded that student was denied a FAPE and imposed, among other
things, the following corrective action:
Within 21 calendar days of receiving this final decision, the
District will obtain an invoice for the private tutor from
[father] detailing the dates, times, and amounts of money paid
to the private tutor by [father] during the 2005-06 school year
and the summer of 2006. The District will reimburse [father]
50 percent of the total of the bill before the start of the 2006-
07 school year.
The school district petitioned this court for a writ of certiorari. Father and student
participate in this action as amici curiae under Minn. R. Civ. App. P. 129.01-.04.
ISSUES
I. Did the Minnesota Department of Educations investigation satisfy the
requirements of 34 C.F.R. 300.661(a)(1), (3) (2005-2006)?
II. Did the Minnesota Department of Education err by imposing partial
reimbursement of the cost of a private tutor?
ANALYSIS
The school district challenges the MDEs August 2006 administrative decision.
The school district does not challenge the majority of the MDEs findings or the bulk of
the corrective actions imposed, but it argues that: (1) the MDEs investigation was
fundamentally flawed; and (2) because it provided the requisite academic services to
student, the MDE erred in mandating reimbursement for the private tutor.
When reviewing agency decisions, this court adhere[s] to the fundamental
concept that decisions of administrative agencies enjoy a presumption of correctness, and
deference should be shown by courts to the agencies expertise and their special
knowledge in the field of their technical training, education, and experience. In re
9
Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278
(Minn. 2001) (quotation omitted). When an agency performs the quasi-judicial function
of receiving and weighing evidence, making factual findings, and applying a prescribed
standard to reach a conclusion, a reviewing court applies the substantial-evidence test.
Hurrle v. County of Sherburne, 594 N.W.2d 246, 249 (Minn. App. 1999) (quotation
omitted). Substantial evidence is: (1) such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more
than some evidence; (4) more than any evidence; or (5) the evidence considered in its
entirety. Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644
N.W.2d 457, 466 (Minn. 2002). Under the substantial-evidence test, this court evaluates
the evidence relied upon by the agency in view of the entire record as submitted.
Cable Commcns Bd. v. Nor-West Cable Commcns Pship, 356 N.W.2d 658, 668 (Minn.
1984). This court will not reverse the decision of an administrative agency unless the
decision reflects an error of law, the determinations are arbitrary and capricious, or the
findings are unsupported by the evidence. Special Sch. Dist. No. 1 v. E.N., 620 N.W.2d
65, 68 (Minn. App. 2000) (quotation omitted). If an agency engages in reasoned
decision-making, this court will affirm, even though it may have reached a conclusion
different from the agencys. Cable Commcns Bd., 356 N.W.2d at 669.
The purpose of the IDEA is to ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes special education
and related services designed to meet their unique needs. 20 U.S.C. 1400(d)(1)(A)
10
(2000 & Supp. V. 2005). States shall ensure that FAPE is available to all children with
disabilities. 34 C.F.R. 300.300(a)(1) (2005-2006).
If a dispute arises in which the parent of a child with disabilities objects to specialeducation
programming matters, a parent may choose from two procedures in order to
report and seek resolution of the complaint: (1) participating in an impartial due-process
hearing, 20 U.S.C. 1415(f) (2000 & Supp. V. 2005); Minn. Stat. 125A.091, subd. 12
(2004); or (2) filing a complaint with the state educational agency (SEA). See Megan C.
v. Indep. Sch. Dist. No. 625, 57 F. Supp. 2d 776, 780 (D. Minn. 1999) (stating that there
are [t]wo separate, distinct, and independent remedies in disputes with school districts
over the appropriate special-education services of children with disabilities: (1) dueprocess
hearings; and (2) administrative-complaint procedures). In Minnesota, the SEA
is the MDE. Here, father chose the administrative-complaint procedure and filed a
complaint with the MDE on May 15, 2006.
In the administrative-complaint process, the MDE is required to: (1) determine
whether an investigation is necessary, and if so, carry out an independent on-site
investigation; (2) give the complainant an opportunity to submit additional information;
(3) review all relevant information and determine whether the educational agency is
violating the IDEA; and (4) issue a written decision that addresses each allegation in the
complaint. 34 C.F.R. 300.661(a)(1)-(4) (2005-2006).4
4 We note that on August 14, 2006, the U.S. Department of Education issued new IDEA
regulations. See 71 Fed. Reg. 46540 (Aug. 14, 2006). The new regulations went into
effect on October 13, 2006, and consequently do not apply to the present appeal.
11
We look to the statute to ascertain and effectuate the intention of the legislature.
Minn. Stat. 645.16 (2004). If a statutes language is unambiguous, we apply its plain
meaning. Id.; In re Risk Level Determination of C.M., 578 N.W.2d 391, 395 (Minn. App.
1998). This court reviews issues of statutory construction de novo, [b]ut where the
statutory language is technical in nature, and the agencys interpretation is longstanding,
that interpretation is entitled to some deference. E.N., 620 N.W.2d at 68.
I
The school district argues that the MDEs decision was arbitrary and capricious
because its investigation was fundamentally flawed and was not conducted in accordance
with 34 C.F.R. 300.661(a)(1), (3). We agree.
The state complaint procedures under the IDEA are governed by 34 C.F.R.
300.660-.662 (2005-2006). The regulations require an SEA to [r]eview all relevant
information and make an independent determination as to whether the [school district] is
violating a requirement of [the act] and to [c]arry out an independent on-site
investigation, if the SEA determines that an investigation is necessary. 34 C.F.R.
300.661(a)(1), (3).
Here, the MDE submitted a 41-page decision that included a detailed explanation
of its investigation, conclusions, the facts supporting each of its conclusions, and
decision. The record shows that during the investigation, the MDE examined numerous
documents relating to the case, including the relevant IEPs; progress reports; e-mail
messages exchanged between the school district, father, tutor, and classroom teacher;
students report cards; students attendance reports; students diagnostic-assessment
12
summary; the school districts student-discipline policy; reports from Behavioral Health
Services; and students psychological evaluations. The record also shows that the
investigator made four telephone calls to the school districts special-education director
and sent three e-mails. The telephone calls consisted only of voice-mail messages from
the MDE investigator informing the special-education director about the timing and
procedures of the investigation. The record further reflects, and the parties do not
dispute, that the MDE did not undertake an on-site investigation and that the MDE
investigator did not otherwise personally contact any school-district personnel. At no
point did the MDE investigator make substantive inquiries or otherwise discuss fathers
allegations with school-district personnel.
Although the MDE maintains that the investigation only required review of the
relevant paperwork, the MDE nevertheless conducted numerous interviews with father.
The MDE also interviewed students tutor, as well as fathers special-education-rights
advocates. But 34 C.F.R. 300.661(a)(3) requires consideration of all relevant
information. In complex cases such as this one, such consideration should have
included, at a minimum, interviews with relevant school-district personnel. This is
especially true where key credibility determinations play a significant role in sustaining
the complainants principal allegations.
For example, the MDE found that student was denied a FAPE, in part because
students aggressive behaviors interfered with his academic progress, as noted in several
e-mails sent to father in the fall of 2005. According to the MDE, father was thus forced
to hire a private tutor. Although the MDE interviewed father and the tutor, the MDE
13
never spoke with the special-education teacher who actually sent the e-mails, even
though those e-mails were pivotal in the MDEs determination that student was not
keeping up with the first-grade curriculum. Because of its truncated investigation, the
MDE could only conclude that [a]lthough the Student made progress on his academics
during the 2005-06 school year, it cannot be ascertained whether this was due to the
Districts efforts or to the efforts of the Students private tutor. As the school district
aptly notes:
Had the MDE investigator contacted the individuals who
educated the Student at school, she would undoubtedly have
been shown the materials they used to teach the Student,
samples of the Students work, the teachers gradebook, and
could have obtained helpful information to allow the MDE to
make some inferences as to whether the Student obtained
benefit from the Districts efforts or the Students private
tutor.
Although less significant to our decision, we also note that father alleged that
student was transferred to the more restrictive Level III in February 2006 without his
knowledge or consent. The MDE determined, based largely on fathers statements, that
the school district violated the IDEA by denying father an opportunity to participate in
the February 2006 IEP meeting and failing to provide father with prior written notice
before it changed students placement. The school district acknowledges that it violated
the IDEA by not including father in the actual IEP meetings and in not obtaining fathers
written consent to the transfer before implementing it. But fathers knowledge of the
February 2006 change to students IEP was hotly disputed, with the school district
maintaining that it discussed the change to students IEP with father by telephone; father
14
orally agreed to the change; and father received regular e-mails informing him of the time
student spent in the resource room versus his regular first-grade classroom.
Although these efforts by the school district do not excuse its failure to comply
with the IDEAs technical requirements for the development of an IEP, they are, in our
view, relevant factors that warranted substantive investigation by the MDE before it
determined the proper corrective actions. Accordingly, in this case, a review of all
relevant information required not only a document review but interviews with both
partiesnot just the complainant and his witnesses. We hold that the MDEs failure to
interview students principal, special-education teacher, classroom teacher,
paraprofessional, or any other school-district personnel directly involved in the
development of students IEPs and overall education did not satisfy the regulatory
mandate of 34 C.F.R. 300.661(a)(3) to review all relevant information. Moreover,
confidence in the MDEs investigatory process and resulting decisions is severely
undermined when the MDE engages in such one-sided fact-finding.
We also disagree with the MDEs assertion that 34 C.F.R. 300.661(a)(1) did not
require it to conduct an on-site investigation. The regulation requires an SEA to [c]arry
out an independent on-site investigation, if the SEA determines that an investigation is
necessary. 34 C.F.R. 300.661(a)(1). We find no ambiguity in this language, and we
therefore apply its plain meaning. C.M., 578 N.W.2d at 395. In so doing, we conclude
that the plain language of the regulation requires an SEA to complete an on-site
investigation when the SEA determines that an investigation is required. Here, the MDE
clearly concluded that an investigation was necessary; accordingly, the MDE was
15
required to conduct an on-site investigation. But the MDE investigator did not do so, as
evidenced by the fact that the investigator did not visit students school or the school
districts special-education office.5
For all these reasons, we conclude that the MDEs decision was arbitrary and
capricious because it was based upon a flawed investigation that failed to satisfy the
requirements of 34 C.F.R. 300.661(a)(1), (3).
II
The school district also argues that the MDE erred as a matter of law by requiring
partial reimbursement of the cost of a private tutor as a remedy for the school districts
IDEA violations. We agree.
One purpose of the IDEA is to ensure that all children with disabilities have
available to them a [FAPE] that emphasizes special education and related services
designed to meet their unique needs to prepare them for the future. 20 U.S.C.
1400(d)(1)(A). The IDEA defines a FAPE as
special education and related services that
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary or
secondary school education in the State involved; and
5 In its brief and at oral argument, counsel for the MDE observed that in August 2006, the
U.S. Department of Education issued an Analysis of Comments and Changes regarding
the new regulations, and that these comments clarify that on-site investigations are
discretionary with the local SEA. But the 2006 comments do not supplant the 2005-2006
C.F.R. that apply in this case because they were not promulgated at the time of this
appeal. Under the 2005-2006 regulations applicable to this case, it is clear that if the
SEA determines an investigation is necessary, it must conduct an on-site investigation.
16
(D) are provided in conformity with the individualized
education program required under section 1414(d) of this
title.
20 U.S.C. 1401(8) (2000); see 20 U.S.C. 1401(9) (Supp. V. 2005) (defining FAPE).
Under the administrative-complaint procedure, if the MDE finds that the school
district has failed to provide appropriate services, the MDE must address [h]ow to
remediate the denial of those services, including, as appropriate, the awarding of
monetary reimbursement or other corrective action appropriate to the needs of the child.
34 C.F.R. 300.660(b)(1); E.N., 620 N.W.2d at 71.
The MDEs basic position is that because the school district committed multiple
procedural and substantive violations of the IDEA and, as a result, failed to provide
student with a FAPE, the MDE has the authority to implement virtually any corrective
action it deems appropriate. We disagree. Although the MDEs supervisory authority is
broad, it is not limitless. And indeed, those limits are found in the same federal
regulations that confer general supervisory authority to an SEA. Specifically, once the
MDE finds a failure to provide appropriate services, it must address how to remediate
the denial of those services. 34 C.F.R. 300.660(b)(1) (2005-2006) (emphasis added).
Thus, the remedy must be calculated to remediate the services that the school district
failed to provide.
We acknowledgeas we mustthe MDEs unique role in supervising local
school districts compliance with federal and state special-education law and its broad
oversight responsibility to ensure that local school districts provide free appropriate
17
public educations to students with disabilities. This court recently recognized that
authority in Indep. Sch. Dist. No. 709 v. Bonney, 705 N.W.2d 209 (Minn. App. 2005).
Likewise, we acknowledgeas we mustthe MDEs concomitant authority to
remediate the denial of special-education services, including, as appropriate, the
awarding of monetary reimbursement or other corrective action appropriate to the needs
of the child. 34 C.F.R. 300.660(b)(1).
But we reject the MDEs conclusion that it has unlimited discretion to impose any
corrective action whatsoever, regardless of its nexus to the actual IDEA infractions
committed by the school district. Such boundless governmental authority is an anathema
to basic notions of substantive due process. In this regard, the school district contends
that it provided student with the requisite academic services, thereby providing student
with a FAPE. Accordingly, the school district argues, monetary reimbursement for the
tutor was not authorized under the IDEA. The MDE disputes this contention, noting that
student was falling behind academically, primarily because he was frequently removed
from his classes due to behavioral problems, and that the school district failed to include
appropriate behavioral interventions in students IEPs. The MDE contends that these
violations collectively resulted in student not receiving a free appropriate public
education.
We agree with the MDE that the school districts collective violations denied
student a FAPE. And in a case with similar facts, this court upheld monetary
reimbursement for home-based educational services to a child even absent a finding that
the school district failed to provide appropriate educational services, but when the school
18
district violated other provisions of the IDEA. E.N., 620 N.W.2d at 71. Thus, even if we
were to agree with the school district that it provided the requisite academic services, the
school districts other, admitted IDEA violations would still constitute a denial of a
FAPE. That said, we nevertheless conclude that the MDEs reliance on E.N. to support
its order for the monetary reimbursement of the tutor here is unavailing because in E.N.
the monetary reimbursement was directly related to the academic service that was denied.
Thus, when the school district ceased paying for E.N.s home-based educational services
in violation of his IEP, the commissioner ordered the school district to reimburse the
parents of E.N. for expenses incurred in providing home-based educational services to
E.N. E.N., 620 N.W.2d at 68, 71. The MDEs reliance on Bonney is similarly misplaced
because in Bonney, the MDEs order for compensatory education was likewise directly
related to the school districts failure to provide certain educational services. Bonney,
705 N.W.2d at 215. The common thread between E.N. and Bonney is the direct nexus
between the corrective action imposed and the IDEA deficiency to be remedied. Here,
that nexus is equivocal, at best.
Our position is primarily based on the fact that the overwhelming majority of the
school districts IDEA violations related to the school districts failure to adequately
address students ongoing aggressive/assaultive behaviors in the his IEPs. Following a
close second is the school districts failure to include father in the development of the
February 2006 IEP and its related failure to provide father with prior written notice of
students transfer to the more restrictive Level III. Although unquestionably related,
none of the violations listed above had a direct nexus to students academic progress or
19
lack thereof. This is evidenced by the fact that the principal corrective actions imposed
by the MDE for those infractions fully addressed the denial of those services.
Thus, for example, corrective action #1 required revisions to students IEP to
include, among other things, measurable goals and a positive behavioral-support plan.
Corrective action #2 required the school district to include father in the IEP development
process. Corrective action #3 required the school district to provide 25 hours of
compensatory education services to student, but notably, this did not entail compensatory
academic services; rather, the school district was directed to provide social/relational
services to make up for the opportunities the Student missed during the 2005-06 school
year because of inadequate behavioral supports. The MDE specifically noted that this
remedy was based on the amount of time he was placed in a federal setting three and
missed recess, lunch, and other opportunities to be with his peers. Corrective action #4
simply required the school district to correct its records to reflect that student was
suspended from school for a day. Corrective actions #5 and #6 required the school
district to implement training in IEP development and the use of positive behavioral
interventions.
But the MDEs corrective action requiring the school district to reimburse father
for the cost of hiring a private tutor has no direct nexus to the school districts principal
violations of the IDEAi.e., its failure to provide adequate behavioral supports, which,
as noted above, was already addressed in corrective actions #1, #3, and #6. Nor is the
necessity for the tutor supported by the record.
20
The MDE points repeatedly to the school districts multiple procedural and
substantive violations of the IDEA, and in particular the school districts unilateral
decision to change the students IEP in February 2006. But again, the MDE implemented
separate corrective actions that directly addressed this violation. Moreover, fathers
November 2005 decision to hire a private tutor occurred well before the school districts
unilateral February 2006 decision to transfer student to a different educationalprogramming
level. Thus, fathers decision to employ a private tutor for student was far
removed from one of the school districts primary IEP violations, both temporally and
substantively.
Furthermore, the record shows that student did progress academically during the
year. In November 2005, students psychiatrist noted that student was doing reasonably
well academically. Students private tutor reported that student was performing at close
to grade level by the end of his first-grade year, and indeed, student achieved passing
academic grades and was apparently promoted from first grade to second grade. When
student was removed from his regular first-grade class, he was sent to the resource room
where he continued to work on his academic studies with his special-education teacher.
Even the MDEs decision recognizes that the Student made progress on his academics
during the 2005-06 school year. And while the MDE also concluded that it is
reasonable to assume the Student was educationally harmed, it is telling that the MDE
did not order compensatory academic services despite its stated concern with students
academic shortcomings.
21
In support of its position that student was not progressing academically, the MDE
points to the e-mails from students special-education teacher indicating that student
needed academic assistance and suggesting that father work with student at home. But as
the school district notes, these were routine suggestions that might be made to any parent
regarding parental review and reinforcement of certain academic skills at home. Nothing
in those e-mails implied or suggested that student needed a private tutor. Parents
commonly assist their children with their schoolwork, and that assistance should not be
viewed as either indicating a deficiency in classroom teaching or imposing a liability on
the school district. And although father was not legally required to do so, it is troubling
that father did not notify the school district that he was in any way dissatisfied with the
academic services student received or that he planned to hire a tutor.
We recognize the relationship here between students behavioral issues and
academic progress, but when, as in this case, the record plainly demonstrates and the
MDE itself concluded that student made adequate academic progress, there is a
fundamental disconnect between the MDEs finding of broader, procedural IDEA
violations and the remedy of reimbursement for private tutoring expenses. When a
school district violates an IEP, any corrective action must remediate the denial of those
services. 34 C.F.R. 300.660(b)(1). Here, the school districts violations were
primarily related to the school districts failure to provide appropriate behavioral services,
not its denial of academic services. Monetary reimbursement for the tutor was not related
to the denial of those behavioral services and, therefore, was inappropriate.
22
Finally, we note that the MDEs position would at least implicitly authorize any
parent of a child receiving special-education services under the IDEA to be reimbursed
for the cost of a private tutor, even though the parent: (1) never advised the school
district that he/she was dissatisfied with the academic services offered, thus providing the
school district the opportunity to address any deficiencies; (2) never notified the school
district that he/she planned to hire a tutor; and (3) never requested reimbursement for the
tutors services. The policy and financial implications of such a ruling go far beyond
what we believe the IDEA contemplates or authorizes. Accordingly, we conclude that
partial reimbursement for the private tutor was an inappropriate remedy in this case.
Because we reverse on other grounds, we do not address the school districts remaining
arguments.
D E C I S I O N
The corrective action imposed by the Minnesota Department of Education under
34 C.F.R. 300.660(b)(1) (2005-2006)partial reimbursement for the cost of a private
tutorwas not sufficiently related to the school districts failure to provide behavioral
services and, therefore, was inappropriate.
Reversed.
 

 
 
 

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