This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of Chisago Lakes School
District, Independent School District
No. 2144, and J.D.
Filed May 24, 2005
Department of Education
File Nos. OAH #3-1300-15732-9 & MDE 582
Margaret O’Sullivan Kane, Amy Jane Goetz, Center for Education Law, Ltd., 1654 Grand Avenue, Suite 200, Saint Paul, MN 55105 (for relators J.D., N.D. and D.D.)
Paul C. Ratwik, Isaac Kaufman, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent Chisago Lakes School District)
Considered and decided by Willis, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellants J.D. and his parents, N.D. and D.D., challenge the decision of the administrative law judge (ALJ) allowing respondent Independent School District No. 2144 to terminate special-education services for J.D. They also challenge the ALJ’s determination that the school district provided J.D. with a free appropriate public education (FAPE) when J.D.’s individualized education plan (IEP) had not been updated since May 2001. Because substantial evidence supports the ALJ’s decision, we affirm.
J.D. was born in June 1989 and is currently in the tenth grade at Chisago Lakes High School. J.D. was diagnosed with a number of disabilities and disorders, and he began receiving special-education instruction and related services in 1996 for emotional/behavioral disorder (EBD). In May 2000, J.D. was determined to be eligible for special-education services for specific learning disability (SLD), and in October 2000, J.D. was determined to be eligible for receiving special-education services for autism spectrum disorder (ASD).
In May 2001, the school district and J.D.’s parents agreed to implement an IEP addressing J.D.’s needs for special education resulting from SLD and ASD. This was the last time that the school district and J.D.’s parents reached an agreement regarding J.D.’s IEP, and, consequently, his IEP has not been rewritten since that time. The school district proposed revised IEPs in November 2001, May 2002, October 2002, and November 2002. Because J.D.’s parents did not agree with these proposals, they were not implemented.
In the summer of 2001, J.D.’s parents had him evaluated by psychologist Richard Ziegler at the University of Minnesota. Ziegler administered a number of tests to J.D., including a general-intelligence test, on which J.D.’s score reflected an above-average full-scale IQ. J.D. received average scores on achievement tests for reading and mathematics, but Ziegler concluded that J.D.’s written language score was below average. Ziegler also concluded that J.D. met the discrepancy standards for SLD programming in the areas of single-word reading and written language. The school district disagreed with Ziegler’s conclusions because Ziegler did not conduct sufficient subtests to generate a broad score, as required by the Minnesota Department of Education, and because another psychologist who conducted an independent evaluation of J.D. at the school district’s expense concluded that J.D. did not need special-education services in these areas.
In May 2003, the school district conducted a federally mandated three-year reevaluation of J.D., using a number of evaluation tools and procedures. J.D. received an average general-intelligence score, and he received average scores on achievement tests and on curriculum-based measures for reading, mathematics, and written language.
J.D. was also evaluated with the autistic-diagnostic-observation system. J.D.’s score was below the score for autism and ASD, indicating that he did not meet the criteria for either autism or ASD. J.D. was also evaluated with the Asperger-syndrome-diagnostic scale. Utilizing this scale, his parents rated J.D. as being “very likely” to have Asperger syndrome, and the school psychologist rated J.D. as being “very unlikely” to have Asperger syndrome. Although J.D. exhibited certain behaviors that were indicative of ASD or Asperger syndrome, the evaluators concluded that his behaviors were not major concerns because, according to these evaluations, he did not meet the threshold criteria for autism, ASD, or Asperger syndrome.
J.D. was observed in a number of classrooms, and his teachers and parents also provided feedback regarding J.D.’s behavior. After observing J.D. in the classroom, one evaluator concluded that J.D. displayed no behaviors that would set him apart as having ASD. Another observer evaluated J.D. during three of J.D.’s classes and saw “no instances of behavior that were discrepant from the school and classroom expectations.” None of J.D.’s teachers reported significant concerns regarding J.D.’s academic or social behavior, and they agreed that J.D.’s behavior during the observation was consistent with his regular classroom behavior. When they evaluated J.D.’s behavior and social skills utilizing the behavior-assessment system for children and the social-skills rating system, J.D.’s parents noted significant concerns, but J.D.’s teachers reported that J.D. demonstrated average social skills and the same or fewer behavior problems overall than his peers.
At the conclusion of the reevaluation, the school district concluded that J.D. no longer met the criteria established by the Minnesota Rules for EBD, SLD, or ASD. The school district concluded that J.D. did not have any educational needs requiring special-education services. J.D.’s parents disagree and believe that J.D. still needs an IEP for SLD and ASD.
The school district continued to implement J.D.’s IEP, with certain modifications, during his ninth-grade year in 2003-2004. In November 2003, the school district concluded that J.D. had met five of his six IEP goals and had made progress toward the sixth goal. Near the end of his ninth-grade school year, J.D.’s grades dropped significantly, and he consistently turned in homework late. J.D. also had some referrals for behavioral incidents in April and May 2004.
The school district requested a due-process hearing in February 2004, and in March 2004, J.D. filed a complaint and a request for a hearing. An administrative hearing was held in April and May 2004. The ALJ determined that the school district had demonstrated by a preponderance of the evidence that J.D. no longer meets the eligibility criteria for special education in any area of disability and that the school district should be permitted to terminate special-education services for J.D. This appeal follows.
D E C I S I O N
The Minnesota statute governing due-process hearings for special-education determinations provides that “[t]he parent or district may seek review of the hearing officer’s decision in the Minnesota Court of Appeals or in the federal district court, consistent with federal law. A party must appeal to the Minnesota Court of Appeals within 60 days of receiving the hearing officer’s decision.” Minn. Stat. § 125A.091, subd. 24 (2004). The predecessor Minnesota statute governing due-process hearings for special-education determinations provided that state judicial review must be in accordance with the Minnesota statute that establishes the standard of judicial review for administrative-agency decisions. Minn. Stat. § 125A.09, subd. 10 (2002). This statute was repealed in 2003, and the current statute is silent on the applicable standard of review.
In a recent opinion involving these same parties, this court determined that review of future cases arising under Minn. Stat. § 125A.091, subd. 24, “shall be in accordance with Minn. Stat. §§ 14.63-.69, except that, as prescribed by Minn. Stat. § 125A.091, subd. 24, the appeal period shall expire within 60 days after the party appealing receives the hearing officer’s decision.” In re Chisago Lakes Sch. Dist., 690 N.W.2d 407, 409-10 (Minn. App. 2005). Under section 14.69, “the court may . . . reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are” among other things, an error of law, unsupported by substantial evidence, or arbitrary and capricious. Minn. Stat. § 14.69(a)-(f) (2004); see Glazier v. Indep. Sch. Dist. No. 876, 558 N.W.2d 763, 766 (Minn. App. 1997) (applying this standard of review to due-process hearings for special education).
J.D. argues that the applicable standard of review is provided in the Individuals with Disabilities Education Act (IDEA) and requires a court reviewing the hearing officer’s decision to “receive the records of the administrative proceedings,” to “hear additional evidence at the request of a party,” and to base “its decision on the preponderance of the evidence, [granting] such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(B)(i)-(iii) (2000).
But it is beyond the province of this court to find facts, and we therefore, do not hear or consider additional evidence at a party’s request. In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990). Because application of the standard of review in the IDEA would expand the role of this court, we will apply the standard by which we review administrative-agency decisions, and we will, therefore, uphold the hearing officer’s decision unless it is unsupported by substantial evidence or is arbitrary and capricious. Minn. Stat. § 14.69(e). Substantial evidence is “(1) [s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) [m]ore than a scintilla of evidence; (3) [m]ore than some evidence; (4) [m]ore than any evidence; and (5) [e]vidence considered in its entirety.” AAA Striping Serv. Co. v. Minn. Dep’t of Transp., 681 N.W.2d 706, 718 (Minn. App. 2004).
J.D. argues that the ALJ erred by determining that J.D. is ineligible for special-education services for either ASD or SLD. First, J.D. argues that the state criteria for determining a student’s continued eligibility for special-education services differ substantially from the state’s criteria for initial eligibility and that the ALJ erred by applying the initial eligibility criteria. Second, J.D. argues that he remains eligible to receive and continues to need special-education services. Finally, J.D. argues that the ALJ erred by permitting the school district to terminate special-education services for J.D.
At least once every three years, a school district must reevaluate a child who is receiving special-education services. Minn. R. 3525.2710, subp. 2 (2003). In such a reevaluation, the school district’s IEP team must determine whether the child continues to have a disability and whether the child continues to need special-education instruction and related services. See 20 U.S.C. § 1414(c)(1)(B) (2000) (noting that the IEP team must determine what additional data are needed to make this determination); Minn. R. 3525.2710, subp. 4(A)(2).
The statutory definition of a “child with a disability” is a legal definition that includes more than a medical diagnosis. See Minn. Stat. § 125A.02, subd. 1 (2004) (noting that a child with a disability has a specified impairment and needs special instruction and services). The Minnesota Rules define each of the impairments listed in section 125A.02, subd. 1, and describe the eligibility criteria necessary to qualify a child to receive special-education services. See Minn. R. 3525.1325-3525.1348 (2003).
Criteria for Reevaluation
Relying on a letter and a manual from the Minnesota Department of Education, J.D. argues that a student diagnosed with ASD need not demonstrate the level of severity upon reevaluation that is required to establish initial eligibility for receiving special-education services.
When an agency’s interpretation tends to make the federal and state statutes more specific, it is an interpretive rule and it must be promulgated according to the Minnesota Administrative Procedures Act (MAPA). Dullard v. Minn. Dept. Human Res., 529 N.W.2d 438, 445 (Minn. App. 1995). An agency interpretation that has not been promulgated as a rule under the MAPA is not binding on this court, although the interpretation may be persuasive. Id. at 446. Here, the agency’s interpretation of the reevaluation criteria is more specific than the criteria in the statute and rules. Therefore, the agency interpretation provided in the September 2004 letter and in the ASD manual is, at best, persuasive.
Here, the ALJ identified the statutory requirement that the school district reevaluate J.D. to determine whether he continues to have a disability qualifying him for special-education services. The ALJ then reviewed the criteria for ASD in the Minnesota Rules. Because the policy described in the letter and the manual are merely persuasive and because there is little guidance regarding specific criteria applicable upon reevaluation, we conclude that the ALJ did not err as a matter of law by applying the criteria for ASD provided in the Minnesota Rules.
J.D. also argues that the ALJ erred by applying initial eligibility criteria to J.D. when it determined that he is no longer eligible for SLD special-education services. A student is eligible for SLD special-education services when the student demonstrates a severe discrepancy between intellectual ability and achievement or demonstrates severe underachievement. Minn. R. 3525.1341, subp. 2(A), (B). The rule refers specifically to measuring a student’s severe discrepancy by referring to the “standard deviation” from the mean of the scores of the general population at the student’s age level “[f]or initial placement.” Id. subp. 2(B) (emphasis added). This suggests that another standard deviation may be appropriate for continued eligibility. But the rule does not provide that the discrepancy at reevaluation need not be severe.
Here, the ALJ concluded that “[t]he district has demonstrated by a preponderance of the evidence that the student is not eligible for special education services in the category of SLD.” The ALJ noted that “[t]he student does not demonstrate severe underachievement, a severe discrepancy between intellectual ability and achievement, or an information processing disorder the effects of which occur in a variety of settings.” We conclude that the ALJ did not err as a matter of law by applying this standard.
Standard for Reevaluation and Supporting Evidence – ASD
J.D. next argues that the ALJ erred by determining that J.D. is ineligible for special-education services for ASD. ASD includes a number of developmental disorders that are “characterized by an uneven developmental profile and a pattern of qualitative impairments in several areas of development, including social interaction, communication, or the presence of restricted, repetitive, and stereotyped patterns of behavior, interests, and activities.” Minn. R. 3525.1325, subp. 1. Asperger syndrome is included in ASD. Id. According to the Minnesota Rules, a student is eligible for special-education services for ASD, when: (A) the pupil demonstrates patterns of behavior indicating (1) a qualitative impairment in social interaction, as documented by two or more behavioral indicators, and either (2) a qualitative impairment in communication, as documented by one or more behavioral indicators, or (3) restricted, repetitive, or stereotyped patterns of behavior, interest, and activities, as documented by one or more behavioral indicators; and (B) ASD adversely affects the pupil’s performance so that the pupil needs special-education and related services. Id. subp. 3.
Here, the ALJ found that the preponderance of the evidence showed that J.D. “is not eligible for special education services in the category of ASD because he does not demonstrate patterns of behavior across settings indicating qualitative impairments in social interaction, communication, or restricted, repetitive, or stereotyped patterns of behavior, interest, and activities.”
During J.D.’s reevaluation, a school-psychologist evaluator noted that J.D. demonstrated difficulties with understanding social cues. This is a behavioral indicator described in rule 3525.1325, subp. 3(A)(1). An evaluation by another school psychologist also noted that J.D. demonstrated a limited understanding and use of gestures, which is a behavioral indicator described in rule 3525.1325, subp. 3(A)(2). But the other concerns mentioned by the evaluators are not described in the rule.
The rule requires that a student demonstrate the presence of at least two behavioral indicators from subp. 3(A)(1) and a pattern of behavior from either subp. 3(A)(2) or 3(A)(3) to be eligible for ASD special-education services. Here, only one behavioral indicator from subp. 3(A)(1) was even mentioned by an evaluator. Further, J.D. did not meet the established criteria for autism or ASD when he was evaluated with the autism-diagnostic-observation system. And according to the school’s psychologist, J.D.’s score for the Asperger-syndrome-diagnostic scale indicated that J.D. was very unlikely to have Asperger syndrome. Therefore, the evaluators’ concerns regarding some of J.D.’s behaviors do not indicate that J.D. meets the criteria for ASD.
The finding that J.D. no longer meets the criteria for ASD is also supported by other evaluations and observations of J.D. For example, evaluators noted that J.D.’s behaviors did not set him apart as having ASD and that J.D.’s classroom behavior met classroom expectations and was socially appropriate. J.D.’s teachers reported no significant academic or social concerns for J.D. They also reported that J.D. showed the same or fewer problems overall than his peers and that J.D. had average social skills and academic competence.
Although J.D.’s parents noted significant concerns, substantial evidence supports the ALJ’s determination that J.D. no longer meets the criteria for ASD and is ineligible for special-education services for ASD. The ALJ’s determination was not arbitrary or capricious.
Standard for Reevaluation and Supporting Evidence – SLD
J.D. also argues that the ALJ erred by determining that J.D. is no longer eligible for special-education services for SLD. The Minnesota Rules define SLD as “a condition within the pupil affecting learning, relative to potential,” that interferes with the student’s ability to acquire, organize, store, retrieve, or express information and is “demonstrated by a significant discrepancy between a pupil’s general intellectual ability and academic achievement.” Minn. R. 3525.1341, subp. 1(A), (B). The condition must be “demonstrated primarily in academic functioning.” Id. subp. 1(C). To establish eligibility for SLD:
A. The pupil must demonstrate severe underachievement in response to usual classroom instruction. . . .
B. The pupil must demonstrate a severe discrepancy between general intellectual ability and achievement in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematical calculation, or mathematical reasoning. . . . For initial placement, the severe discrepancy must be equal to or greater that 1.75 standard deviations below the mean of the distribution of difference scores for the general population of individuals at the pupil’s chronological age level. [And]
C. The team must agree that it has sufficient evaluation data that verify the following conclusions:
(1) the pupil has an information processing condition . . . ;
(2) the disabling effects of the pupil’s information processing condition occur in a variety of settings; and
(3) the pupil’s underachievement is not primarily the result of: visual, hearing, or motor impairment; developmental cognitive disabilities; emotional or behavioral disorders; environmental, cultural, or economic influences; or a history of inconsistent educational programming.
Id. subp. 2.
J.D. argues that the evidence shows that there is a severe discrepancy between his ability and his achievement in the category of written expression. But J.D. does not argue that he shows a severe underachievement in response to usual classroom instruction, as required in subpart 2(A), nor does J.D. argue that he has an information-processing condition occurring in a variety of settings, as required by subpart 2(C)(1). The rule provides that a student has an SLD and needs special-education services only if he “meets the criteria in items A, B, and C.” Id. Further, J.D. had an average IQ score, average scores on the achievement tests and curriculum-based measures, and he made average progress through regular education, although he did not perform according to his abilities during the last half of his ninth-grade year.
J.D. argues that the 2001 evaluation by University of Minnesota psychologist Ziegler demonstrates that J.D. meets the criteria for SLD and is eligible to receive special-education services in the area of written language. But the school district provided evidence through testimony from J.D.’s teachers and another psychologist’s report that J.D. did not meet the criteria for SLD in the area of written language.
J.D. argues that the ALJ did not consider the testimony and concerns of J.D.’s parents, Ziegler, and J.D.’s aunt, who is his personal-care attendant. But the concerns of J.D.’s parents, Ziegler, and J.D.’s aunt are reflected in the ALJ’s decision. J.D. essentially challenges the ALJ’s credibility determinations, and this court may not make credibility determinations. Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996). We conclude that substantial evidence supports the ALJ’s determination that J.D. does not meet the criteria for SLD.
The ALJ did not err by determining that J.D. is not eligible for special-education services for ASD or SLD or by allowing the school district to terminate such services for J.D. Because we affirm the ALJ’s decision to allow the school district to terminate special-education services for J.D. under the IDEA, we do not address J.D.’s argument that the school district cannot choose to provide services under another statute rather than services under the IDEA.
J.D. also argues that the ALJ erred by concluding that J.D.’s special-education services could be terminated on the ground that he completed goals in the May 2001 stay-put IEP and by concluding that the school district provided J.D. with a FAPE. The ALJ determined that the school district had provided J.D. with a FAPE from the implementation of the May 2001 IEP through the time of the administrative hearing.
“[A] state satisfies the requirement of providing a handicapped child with a FAPE ‘by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.’” Glazier, 558 N.W.2d at 767 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 203, 102 S. Ct. 3034, 3049 (1982)). There is a two-step inquiry for determining whether a child has been provided with a FAPE: “First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?” Rowley, 458 U.S. at 206-07, 102 S. Ct. at 3051 (footnote omitted).
We first determine whether the ALJ erred by concluding that the school district complied with the procedural requirements of the IDEA. An IEP should be reviewed on a yearly basis, at least, and should be revised as appropriate. 20 U.S.C. § 1414(d)(4)(A)(i) (2000). J.D. argues that his IEP has not been revised or reviewed since May 2001. But the record shows that the IEP was reviewed in November 2001 and three times during 2002 and that revised drafts were presented to the parents. The record also shows that the school district altered the implementation of the IEP to meet J.D.’s changing needs. Substantial evidence supports the ALJ’s determination that the school district complied with the IDEA procedures for reviewing and revising J.D.’s IEP.
Next, we consider whether the IEP was reasonably calculated to provide J.D. with educational benefit. J.D. argues that the school district failed to provide J.D. with meaningful educational benefit because adequate goals were not developed for J.D. in the areas of organizational skills, work completion, social skills, and written expression and because the IEP was not updated for the past two years. “An ‘appropriate’ public education does not mean the absolutely best or potential-maximizing education for the individual child.” Glazier, 558 N.W.2d at 768.
The ALJ found that J.D. had made significant progress from May 2001 to the time of the due-process hearing. The IEP contained annual goals, short-term instructional objectives, and a number of adaptation services to be provided to J.D. When the school district and the parents were unable to agree on revised goals, the school district adapted its implementation of the stay-put IEP to meet J.D.’s current needs. J.D. argues that his poor academic performance in the last half of his ninth-grade year demonstrates that the IEP has not provided him with meaningful educational benefits. The ALJ concluded that J.D.’s performance during the latter half of ninth grade reflected J.D.’s lack of personal motivation, not the inadequacy of the services provided through the IEP. Substantial evidence supports the ALJ’s conclusion that the school district provided J.D. with a FAPE.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 J.D. scored 66 on the written language curriculum-based measure; the target score for a student in the spring of his eighth-grade year is 72. But the district concluded that J.D.’s performance was not significantly below grade-level expectations.
 J.D.’s 1999 IQ score was above average. But the school psychologist provided a number of explanations for the discrepancy in J.D.’s IQ scores, including the fact that different tests were used and that when different tests are used, the chances of scoring differently increase. The school psychologist also noted that Ziegler used a test that was normed in 1990, that the test used during the reevaluation was normed about ten years later, and that average scores change over time.