In re Complaint Brought on Behalf of Student 1 and All Students in the Functional Skills Program at Halverson Elementary School, Independent School District No. 241

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0085

In re Complaint Brought on Behalf of Student 1 and
All Students in the Functional Skills Program at
Halverson Elementary School,
Independent School District No. 241

Filed October 2, 2017
Affirmed
Rodenberg, Judge

Minnesota Department of Education

Elizabeth J. Vieira, Michael J. Waldspur ger, Rupp, Anderson, Squires & Wadspurger,
P.A., Minneapolis, Minnesota (for relator Independent School District No. 241, Albert Lea)

Lori Swanson, Attorney General, Martha J. Casserly, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Education)

Considered and decided by Rodenberg, Presiding Judge; Kirk, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Relator Independent School District No. 241 (district) appeals by certiorari, arguing
that the Minnesota Department of Education (d epartment) legally erred in the course of
determining eligibility of studen ts for extended schoo l year (ESY) servic es. The district
argues that the department’s complaint-review procedure was deficient, resulting in two
erroneous conclusions of law. Because we conclude that the department’s central

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conclusion is supported by substantial evidence and the district was not prejudiced despite
the several procedural errors by the department, we affirm.
FACTS
The Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482 (2012 &
Supp. 2015), requires each state to ensure a “free appropriate public education” to all
children between the ages of 3 and 21. 20 U.S.C. §1400(d )(1)(A) (2012); 34 C.F.R.
§ 300.101(a) (2016). The mech anism for ensuring that stude nts with disabilities receive
appropriate educational services is the individualized education program (IEP), “a written
statement for each child with a disability” that must incl ude, among other things, a
statement of present levels of achievement and functioning, a statement of measurable
goals, a description of how the goals will be measured, and a statement of the services that
will be provided to the student. 34 C.F.R. § 300.320(a) (2016). The parents of a disabled
student must be afforded the opportunity to participate in IEP team meetings, at which the
team discusses which services the student requires and identifies and evaluates the
educational placement of the student. 34 C.F.R. §§ 300.321(a), .501(b) (2016).
If an IEP team determines that a child requires ESY services as a part of the child’s
free and appropriate education, those services must be made availabl e to the child. 34
C.F.R. § 300.106(a)(1)(2) (20 16). ESY services are “sp ecial education and related
services” that are provided to a disabled ch ild outside of the normal school year, and in
accordance with the child’s IEP at no cost to the child’s parents. 34 C.F.R. § 300.106(b)
(2016). To determine whether a child is eligible for ESY serv ices, the IEP team assesses
whether one of the following is true:

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A. there will be significant regression of a skill or acquired
knowledge from the pupil’s level of performance on an annual
goal that requires more than the length of the break in
instruction to recoup unless the IEP team determines a shorter
time for recoupment is more appropriate;
B. services are necessary for the pupil to attain and
maintain self-sufficiency because of the critical nature of the
skill addressed by an annual goal, the pupil’s age and level of
development, and the timeliness for teaching the skill; or
C. the IEP team otherwise determines, given the pupil’s
unique needs, that ESY services are necessary to ensure the
pupil receives a free appropriate public education.

Minn. R. 3525.0755, su bp. 3 (2015) (emphasis added). The IEP team must consider
information including prior observation of regression, observati on of the student’s
tendency to regress, and experi ence with similar students. Id., subp. 4 (2015). Schools
may not limit ESY services to “particular categories of disability”; nor may they
“unilaterally limit the type, amount, or duration” of ESY services. 34 C.F.R.
§ 300.106(a)(3) (2016).
At Halverson Elementary School (Halve rson), operated by the district, seven
particular students were eligible for ESY services during the summer of 2015; four of the
students qualified based on “self-sufficiency ,” and the other three qualified based on an
“IEP team decision.” Six students utilized ESY services during the summer of 2015, and
one student’s parents waived th e service. In the summer of 2016, only two of the seven
students qualified for ESY services. Both qualified based on “self-sufficiency.”

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On August 8, 2016, a parent of a nonqualifying student (student 11) filed a complaint
with the department alleging that the district failed to follow the law in determining the
Halverson students’ needs for ESY services during the summer of 2016. Specifically, the
parent alleged:
The district did not offer ESY to students with special needs
for the summer of 2016 unle ss they showed academic
regression throughout the year. [The district] told parents that
even if the student would have qualified in the past based on
“self-sufficiency,” this year (2016) the students MUST show
academic regression or they [were not] qualified for ESY. The
district also cut all [physical th erapy] for the students that did
qualify for ESY based on academic regression. My son has a
long list of disabilities, including physical, and while he did not
show academic regression, he qualifies based on “self-
sufficiency.” ESY was not offered to him for 2016.

(Emphasis in original.) In the district’s response to the complaint, it stated that it had not
adopted a new policy. But it agreed that it had provided new training to its staff concerning
the requirements for a student to be eligible for ESY services.
Early in its investigation, the department requested records from the district and
notified the district that it would “need to talk with” seven members of the district’s staff,
specifically naming each staff member and me ntioning that the de partment would be
“asking each individual about multiple students. ” The district supplied the IEPs for the
seven students. It also provided the depart ment with a copy of its ESY training slides,
presented to staff as part of a presentation entitled “ESY October 2015.” One training slide

1 Because this case involves sensitive educati onal and other information, we will identify
the students by numbers 1 through 7, conforming to the identification method used by the
parties.

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states that ESY eligibility should be based on “1) Regression/Recoupment . . . AND/OR[;]
2) Self-sufficiency . . . AND [;] 3) Unique Ne ed.” (Emphasis in original.) The slide also
specifically states: “Student [s] should NOT be qualifying for Unique Need alone.”
(Emphasis in original.) The school informed the department that this training was provided
to staff at the district’s schools in October 2015.
The department proposed to interview seven employees of the district. It conducted
a phone interview with one of the seven id entified interviewees, who was the school’s
special education director, and subsequently requested onsite interviews with the
remaining interviewees. On the date of th e scheduled onsite interviews, a department
investigator emailed another employee of the department indicating that the investigator
“had an issue” with the distri ct’s superintendent, who “wante d to tape the interviews for
the special education complaint and was very antagonistic.” The investigator reported that
the interviews had been cancelled because the investigator felt “unsafe” and had
“significant concerns about a district taping our interviews with staff.” The employee
responded that the superintendent had “calle d the commissioner” and “was OK with our
proposal of doing the interviews on paper.” The department di d not interview the
remaining members of staff, either in person or “on paper.”
Accordingly, in acting on the special education complaint, the department gathered
and relied on the following evidence: reco rds provided by the complainants and the
district, including the October 2015 training materials and IEPs for the involved students;
the interview with the special education director; an interview with a former staff member
of the school; and phone interviews and ema il communications with the parents of the

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students. The documentation of all intervie ws is in the form of notes taken by the
investigator.
Based on this evidence, the department decided that the district had committed four
violations: (1) it “failed to determine if al l students were in need of ESY services” in a
manner consistent with Minn. R. 3525.0755; (2) it failed to ensure that each student’s IEP
team decided whether ESY services were ne cessary; (3) it failed to provide notice to
parents of students 3 and 7 that there had been a change in the provision of ESY services;
and (4) it unilaterally limited th e types of services availabl e to students receiving ESY
services in the summer of 2016.
The department also prescribed three corrective actions. First, within 14 days of the
decision, the district was required to demons trate to the department that it had “made
reasonable attempts” to send a copy of the department’s decision to all students who were
either determined to be ineligible for ESY services during the summer of 2016 or who were
eligible for ESY services but did not receiv e occupational therapy or physical therapy
services.
Second, within 15 days, the district was required to submit to the department both a
“revised ESY eligibility process” consiste nt with Minn. R. 35 25.0755 and a written
assurance that future ESY elig ibility determinations will be made in accordance with the
department’s determination. Within 30 days, and as part of this second corrective action,
the district was required to provide training to its special education staff regarding the new
ESY eligibility process and to submit its training plan and materials to the department.

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Finally, within 30 days of the decision, the district was required to hold IEP team
meetings for students 1, 6, and 7 to determ ine, under Minn. R. 35 25.0755, whether each
student had been eligible to receive ESY services during the summer of 2016. The district
was also required to hold IEP team meetings for students 2 and 4, who were eligible for
ESY services during the summer of 2016, “to consider the student’s [occupational therapy],
[physical therapy], and/or [developmental adaptive physical education] needs with regard
to ESY services during the summer of 2016.” To the extent that the IEP team determined
that a student was eligible fo r ESY services or related serv ices that the student did not
receive during summer 2016, the department inst ructed the IEP team to consider whether
compensatory education was required.2 Documentation of the IEP team meetings had to
be sent to the department.
The district filed a petition for a writ of cert iorari. At oral argument, the district
represented that all of the required corrective actions have been completed.
D E C I S I O N
The district argues that the department erre d in finding two of the four violations
and used an improper procedure in addressing the complaint. The district does not dispute
that it failed to provide notice of a change in the provision of ESY services or that it limited
the types of services available to ESY-elig ible students during the summer of 2016 in a
manner contrary to federal law. It acknowl edges that its training to staff provided the

2 If the IEP team could not reach agreement regarding co mpensatory education, the
department instructed the parents and the district to submit a plan to the department, which
would then “determine the appropriate corrective action.”

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wrong standard for ESY eligibility. Concerning the merits of the department’s decision,
the district contends (1) that the department erred when it relied in part on the timing of
IEP team meetings to conclude that the prop er ESY eligibility standard was not used and
(2) that the record does not support the department’s conclusion that the district made ESY
eligibility determinations unilaterally.
“The relator has the burden of proof when challenging an agency decision in an
appeal.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 660 N.W.2d
427, 433 (Minn. App. 2003). This court accords “substantial deference” to an agency’s
decision due to the agency’s “expertise” and “special knowledge in the field.” Citizens
Advocating Responsible Dev. v. Kandiyohi Cty. Bd. of Comm’rs , 713 N.W.2d 817, 832
(Minn. 2006); Indep. Sch. Dist. No. 709 v. Bonney , 705 N.W.2d 209, 213 (Minn. App.
2005). We will reverse only where “the substantial rights of the petitioners may have been
prejudiced” because the agency’s findings, inferences, conclusions, or decisions violate the
constitution, exceed statutory authority, were made upon unlawful procedure, were
affected by error of law, were unsupported by substantial evidence, or were arbitrary or
capricious. Minn. Stat. § 14.69 (2016).
“When an agency performs the quasi-judici al function of receiving and weighing
evidence, making factual findi ngs, and applying a prescrib ed 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). When applying
the substantial-evidence test, we review “the evidence relied upon by the agency in view
of the entire record as submitted.” Bonney, 705 N.W.2d at 213 (q uotation omitted). An

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agency’s determination is suffi ciently supported where, cons idering the evidence in its
entirety, there is relevant ev idence that a reasonable person would accept as adequate to
support a conclusion; the substa ntial-evidence standard requires more than ‘a scintilla of
evidence’ and more than ‘some’ or ‘any’ evidence.” In re Expulsion of A.D., 883 N.W.2d
251, 259 (Minn. 2016) (quoting Cable Commc’ns Bd. v. Nor-West Cable Commc’ns
P’ship, 356 N.W.2d 658, 668 (Minn. 1984)). If we conclude that the agency engaged in
“reasoned decision-making” we will affirm even if we would have reached a different
conclusion. Bonney, 705 N.W.2d at 213.
The record amply supports the department’s conclusion that the district trained its
staff to apply an incorrect standard to dete rmine whether a student was eligible for ESY
services. The district concedes that its October 2015 training materials explicitly state that
a student could not be eligible for ESY services on the basis of a “unique need alone.” This
is the wrong standard. The la w provides that a student is entitled to ESY services if the
services are required to prevent “significant regression of a skill”; if the “services are
necessary for the pupil to attain and maintain self-sufficiency”; or if “the IEP team
otherwise determines, given the pupil’s unique needs, that ESY services are necessary.”
Minn. R. 3525.0755, subp. 3.
The district acknowledges that its training material should have separated the second
and third factors with “and/or” rather than “a nd,” an error the district characterizes as
“typographical” in nature. 3 The district informed the de partment that its staff members

3 The district’s contention that this was a typographical error is suspect to say the least. In
addition to substituting “and” in place of “and/ or,” the training materials explicitly state
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were directed to follow the October 2015 training m
aterials and that the staff “followed the
training they received.” These facts alone ar e enough to support the conclusion that the
district made its summer 2016 ESY eligibility determinations improperly.
The district’s additional c ontention that the department erroneously relied on the
timing of the IEP meetings 4 does not affect our conclusion. The department noted that
“ESY determinations for several students we re made in the fall of the school year,
preventing observation of their tendency to regress over extended breaks,” but this
comment was not the basis for the department’s determination that the district improperly
determined ESY eligibility. Instead, the department based its finding of a violation on its
that “unique need alone” is “NOT” enough to qualify a child for ESY services. But
regardless of the source and particular reason for the district having identified and used the
wrong legal standard for dete rmining ESY eligibility, it used the wrong standard. The
motive or intent of the district is not the issue.
4 The district argues that an ESY determination need not “be made at any particular time
during the school year.” The district cites to several nonprecedential authorities to support
its argument. See Reinholdson ex. rel. Simon v. Sc h. Bd. of Indep. Sch. Dist. No. 11, 187
F. App’x 672, 673 (8th Cir. 2006) (rejecting an argument that a district must make ESY
determinations at least 105 days before the end of the school year); Pachl ex. rel. Pachl v.
Sch. Bd. of Indep. Sch. Dist. No. 11, No. Civ02-4065, 20 05 WL 428587, at *8 (D. Minn.
Feb. 23, 2005) (“There is no need to specify a timelin e for determining whether a child
should receive ESY services.” (quotation omitted)); Minn. Dept. of Educ., Complain t
file 12-006C (Nov. 29, 2011) (order, http ://education.state.mn.us/140/
Complaints/12006C.pdf (“[T]he [s]tudent’s IEP team was required to make an annual
ESY determination . . . prior to the end of the [preceding] school year.”); see also
Johnson ex rel. Johnson Indep. Sch . Dist. No. 4, 92 1 F.2d 1022, 1028 (10th Cir. 1990)
(holding that a district determining ESY eligibility should apply both retrosp ective data
about the student’s experiences with past breaks and predictive data about how the
student will likely fare over the up coming summer). Because the department did not
find any violation based on the timin g o f the IEP meetings, we need no t address this
question.

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conclusion that the district utilized the wrong ESY eligibility standard, a conclusion that is
amply supported by the record.
The corrective actions ordered by the depa rtment flow naturally and necessarily
from this central violation. Because the district utilized the wrong standard when making
ESY determinations, it was ordered to modify its training and hold an IEP team meeting
for each student to determine whether the student was entitle d to ESY services in the
summer of 2016. The department’s accompanyi ng conclusion that the district also used
the wrong process to apply the incorrect standard is inconsequential.
We nevertheless briefly address the distri ct’s argument that the department erred
when it concluded that the district denied pa rents of students 1, 6, and 7 a meaningful
opportunity to participate in ESY determinations. The district argues that the record is not
sufficient to substantially support this conclu sion because the record (1) does not include
interviews with relevant district personnel and (2) does not include transcripts of interviews
conducted by the department.
Concerning the district’s contention that the department abdicated its duty to
conduct interviews with all se ven of the staff members it identified as having relevant
information, the department is required to consider “all relevant information” in the course
of its investigation, and, in some circumst ances, interviews with staff are considered
relevant information. See 34 C.F.R. § 300.152(a)(4) (2 016). We have reversed a
department determination based on flaws in the investigation where the department did not
make “substantive inquiries” of any school-district personne l or conduct an onsite

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investigation. Indep. Sch. Dist. No. 192 v. Minn. Dept. of Educ., 742 N.W.2d 713, 720-21
(Minn. App. 2007), review denied (Minn. Mar. 18, 2008).
The investigation here is not of the sort we found wanting in Indep. Sch. Dist. No.
192. In this case, the department interviewed both the current case facilitator and a former
district staff member; it did not rely only on th e statements of advocates for the students.
It did have significant additional information on which it relied. The department represents
on appeal that it concluded that interviews with the remaining six interviewees were
unnecessary. This contention is not supporte d by the record. The only evidence in the
record referencing the department’s decision not to continue inte rviews involves an
unspecified, and seemingly unwarranted, sa fety concern expressed by the assigned
investigator. The department agreed to conduct additional interviews on paper. No such
interviews were ever conducted. Moreover, the department’s explanation is not credible—
when seeking to determine what happene d at an unrecorded closed-door meeting
concerning a student’s eligibility for ESY services, it would be prudent to seek information
from people who were at the meeting.
The department’s handling of the intervie w process was also flawed. The briefs
suggest that the reason the interv iews did not take place is be cause the district wanted to
record the interviews and the department did not want the interviews to be recorded. The
department’s attempts to justify its position on appeal rely wholly on information outside
the record. The record does not contain ad equate documentation of the decision to not
record the interviews, the discussion with the district, or the subsequent decision to not
interview district employees “on paper.” The department summarized this disagreement

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in its decision by stating simply “The district declined to participate in interviews in
accordance with [the department’s] process. As such, onsite interviews did not take place.”
We agree with the district that this finding is unsupported. The record identifies no formal
department policy pr ohibiting recording. 5 And nothing in the re cord suggests that the
district refused to comply with intervie ws on paper, which was an alternate method
suggested by the department and to which the district agreed. The fact of the matter is that
the district did not “decline” to do the interviews. The department decided, for reasons not
disclosed in the record, to abandon the “paper” interview process.
Ultimately, however, we see no reversible error in the department’s failure to
interview additional staff members. The department’s unsupported finding that the district
“declined to participate in interviews” is unrelated to the corrective action ordered by the
department, as discussed above.
Finally, we address the district’s argument that the department failed to maintain an
adequate record by failing to in clude in the record on appeal transcripts of the interviews
it conducted. “Governmental bodies must take seriously their responsibility to develop and
preserve a record that allows for meaningful review by appellate courts.” In re Livingood,
594 N.W.2d 889, 895 (Minn. 19 99). The district suggests that an accurate verbatim
transcript of interviews is required. It no tes that the only record of the department’s
interviews are typed, undate d notes that apparently para phrase the statements made by

5 Because we conclude that such a policy does not exist, we do not address the district’s
argument that the adoption of such a polic y was in violation of the Administrative
Procedure Act, Minn. Stat. §§ 14.001-14.69 (2016).

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interviewees. These notes do not indicate whic h questions correspond to each statement.
But this is an informal comp laint process, distinct from the more formal due process
hearing. See Bonney, 705 N.W.2d at 219 (describing the administrative complaint process
as “informal and less adversarial when comp ared to due process hearings” (quotation
omitted)). Accordingly, we dec line to hold the department responsible for maintaining a
verbatim transcript of every conversation it has during the course of an investigation. There
is no authority to support such a holding in the present procedural posture of this case, and
such a holding would be beyond our proper role. See In re Am. Iron & Supply Co.’s
Proposed Metal Shredding Facility, 604 N.W.2d 140, 144-45 (Minn. App. 2000) (“[W]hen
an agency reasonably interprets a statute, it is the role of the legislature or the supreme
court, and not the role of this cour t, to overrule that interpretation.”); Tereault v. Palmer,
413 N.W.2d 283, 286 (Minn. App. 1987) (“[T]he task of extending existing law falls to the
supreme court or the legislature, but it does not fall to this court.”), review denied (Minn.
Dec. 18, 1987).
We may reverse or modify the decision of an agency only “if the substantial rights
of the petitioner[]” were prejudiced by an agency error. Minn. Stat. § 14.69. Because the
corrective action ordered by the department was warranted by the department’s supported
conclusion that the district applied the wrong ESY eligibility standard to seven students,
the district’s substantial rights were not prejudiced, and we therefore affirm the
department’s decision.
Affirmed.