Independent School District No. 281, Robbinsdale, Minnesota, Relator, vs. Minnesota Department of Education, Respondent.Annotate this Case
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALSA06-1617
Independent School District
No. 281, Robbinsdale, Minnesota,
Minnesota Department of Education,
Filed September 25, 2007Affirmed Hudson, Judge
Minnesota Department of Education
Complaint File No. 2257
Stephen M. Knutson, Peter A. Martin, Knutson, Flynn & Deans, P.A., 1155 Centre Pointe Drive, Suite 10, Mendota Heights, Minnesota 55120 (for relator)
Lori Swanson, Attorney General, Martha J. Casserly, Assistant Attorney General, 1200 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2130 (for respondent)
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Relator Independent School District No. 281 (the district) appeals from an order issued by respondent Minnesota Department of Education (the department), concluding that the district violated Minnesota law by (1) failing to provide written notice to parents before cancelling the provision of developmental-adapted-physical-education (DAPE) swimming and before revising the individualized education programs (IEP) of certain students; (2) unilaterally cancelling DAPE swimming without considering the unique special needs of each student, thereby failing to ensure the provision of a free appropriate public education (FAPE); (3) requiring student number 15 to pay for his DAPE swimming during the 2005-06 school year; and (4) failing to make a good-faith effort to assist 31 (of 37) students to achieve the goals and objectives listed in their IEPs related to DAPE swimming. The department's decision required the district to take the following corrective action: (1) provide compensatory swimming instruction to all 31 students for instruction missed during the 2005-06 school year; (2) provide swimming instruction during the 2006-07 school year; and (3) notify parents of the change in their children's IEPs.
The district argues that the department acted arbitrarily and capriciously and erred by (1) concluding that a single complaining parent had authority to seek individual educational relief on behalf of non-complaining parents and their children; (2) failing to accord any weight to the fact that parents met with school officials and consented to the removal of DAPE swimming from their children's IEPs; (3) concluding that the district could not discontinue DAPE swimming without considering individual student needs. The district also argues that the department violated the Individuals with Disabilities Education Act (IDEA) because it did not review all relevant information during its investigation and did not complete its investigation and issue a decision in a timely manner. We affirm.
DAPE Swimming Services
The district provided developmental-adapted-physical-education (DAPE) swimming services to high-school special-education students until the 2005-06 school year. The swimming instruction was provided during the regular school day at various off-campus locations and was provided in addition to a regular weekly schedule of other DAPE services at the students' home schools. During the 2004-05 school year, the district retained a consultant who undertook a study of the DAPE swimming program and prepared a written report. The study found that students participated in DAPE swimming services 12 to 17 times per year in blocks of two to three hours. The report recommended that, because students were removed from "general education classes or necessary special education services" in order to have time for transportation, changing, and instruction, DAPE swimming services at the high-school level should be discontinued for the 2005-06 school year.
Sequence of Relevant Facts
On March 15, 2005, a district special-education administrator met with the middle-school and high-school special-education teachers. The teachers were informed that DAPE swimming would no longer be provided to high-school special-education students and would be provided to middle-school special-education students only as a part of general physical-education swimming.
At a work session for the district's school board, the district gave the board members a document entitled "Adapted AquaticsTalking Points," which was based on the information in the consultant's DAPE Swimming Report. The district's special-education director stated that the document was created so that school-board members would be able to respond to questions from parents of high-school students with disabilities regarding the cancellation of DAPE swimming.
On April 22, 2005, the district sent a letter to the parents of special-education students, informing them that the district was reviewing DAPE and DAPE swimming. The letter indicated that there would be continued meetings with DAPE staff, developmental-cognitive-disability (DCD) staff, and parents, and that "[a]t this time, final decisions have not been made with regard to the future of adapted swimming or other instructional activities provided through DAPE." The letter also stated that the district would examine each student's individual needs:
Based on information gathered during these activities, staff will determine the best and most equitable implementation of DAPE services for students into the future.
Our goal is to look at all of your student's unique needs and to provide programming that balances our resources to effectively address academic, communication, social-emotional, functional and motor needs.
The last DAPE swimming class was held in June 2005.
On September 12, 2005, during a district board meeting, several parents voiced their opposition to the district's proposed cancellation of DAPE swimming services for special-education high-school students. The issue of whether to cancel DAPE swimming was not brought before the school board for a vote; the district administration made the decision to cancel DAPE swimming.
The district sent a second letter to the affected parents on September 19, 2005, signed by the district's director of special education. In relevant part, the letter stated:
We have completed a review of adapted swimming a component of DAPE. A decision has been made about changes that will impact how your child's instructional time will be used in the future. Staff will discuss with you adjustments that can provide a better balance for daily, weekly, and yearly scheduling of instructional time . . . . DAPE service will continue to be available to address motor development and fitness needs for each student if needed.
The methods and time needed for this part of you[r] child's programming need to be reviewed. In order to adequately address required components of the general education program and areas of transition and functional programming it will be necessary to clarify how the instructional day should be used. You will be invited to an IEP team meeting to review evaluation information and needs as well as services and time. Changes to your child's IEP may be proposed based upon this review and discussion.
In its decision, the department found that the district's September 19, 2005 letter did not inform parents of cancellation of DAPE swimming services. Specifically, the department stated that "[i]t is not indicated in this letter that the District had cancelled the DAPE swimming program for its high school special education students at the end of the 2004-05 school year."
The department found that the district cancelled DAPE swimming at the end of the 2004-05 school year without providing a prior written notice to the parents of affected students. The record shows that the first time that affected parents were advised that DAPE swimming services were cancelled for the 2005-06 school year was during the IEP meetings held during the 2005-06 school year.
On February 8, 2006, a parent of a child with a disability (complainant) filed a complaint with the department, contending that the district unilaterally removed DAPE swimming from all high-school students' IEPs. On February 13, 2006, the department wrote to the district, identifying the issues it planned to investigate:
Specifically, the Complainant asserts the Student's IEP, and the IEPs of approximately 70 other District high school students (Students), all contain developmental adapted physical education (DAPE) swimming goals and objectives and DAPE minutes of service. The Complainant alleges the District indicated DAPE swimming would no longer be offered, and then unilaterally cancelled the DAPE swimming for these Students without conducting IEP team meetings and without providing prior written notice to the Students' parents.
The district responded to the complaint on February 27, 2006. On March 16 and 17, 2006, the department conducted an on-site review of the educational records of all 37 students who reportedly received adaptive swimming services during the 2004-05 school year (before its cancellation). Additionally, the department interviewed or had communications with the district's special-education director, assistant special-education director, and with the teacher who evaluated and provided the district's DAPE swimming services.
The original decision deadline was April 9, 2006, but the department extended the deadline several times, citing "exceptional circumstances." The department issued its decision on July 28, 2006, concluding that the district's discontinuation of DAPE swimming services violated the IDEA. The decision required the district to restore DAPE swimming to the IEPs of affected students at the beginning of the 2006-07 school year and to provide affected students with one year of compensatory swimming services.
The district filed this appeal seeking review of the department's decision. This court issued an order granting, in part, the district's motion to supplement the record.
D E C I S I O N
"When reviewing agency decisions we adhere 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 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 ex rel. Bd. of Comm'rs, 594 N.W.2d 246, 249 (Minn. App. 1999) (quotation omitted). Substantial evidence is defined as: "(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, the reviewing court evaluates "the evidence relied upon by the agency in view of the entire record as submitted." Cable Commc'ns Bd. v. Nor-West Cable Commc'ns P'ship, 356 N.W.2d 658, 668 (Minn. 1984). If an agency engages in reasoned decision-making, the reviewing court will affirm, even though it may have reached a conclusion different from the agency's. Id. at 669. "The decision of an administrative agency will not be reversed unless it 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).
The district argues that, based on the complaint from one child's parent, the department did not have the authority to review the district's provision of special-education services for all students with disabilities in the district. The district frames the issue as one of standing: whether "a single complaining parent had authority to seek individual educational relief on behalf of non-complaining parents and their children," and asserts the answer is "no." The department, on the other hand, contends that the concept of standing "simply has no application in the administrative enforcement context where the Department has the role and obligation to oversee local school districts' compliance with the IDEA." We agree with the department.
The purpose of the Individuals with Disabilities Education Act (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) (2000). If a dispute arises in which the parent of a child with disabilities objects to special-education programming matters, a parent may choose from two procedures to seek resolution of his or her complaint: (1) participating in an impartial due process hearing, 20 U.S.C. § 1415(f) (2000); Minn. Stat. § 125 A. 091, subd. 12 (2006); or (2) filing a complaint with the state educational agency (SEA). In Minnesota, the SEA is the Minnesota Department of Education. 34 C.F.R. §§ 300.660-300.662 (2006). 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) due-process hearings and (2) administrative-complaint procedures) (quotation omitted). In this case, the complaining parent opted for the administrative complaint procedure, filing a complaint with the department on February 8, 2006.
In the administrative complaint process, within 60 days the SEA (the department) 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). If the SEA finds that the district has failed to provide appropriate services, the SEA is required to address:
(1) How 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; and
(2) Appropriate future provision of services for all children with disabilities.
34 C.F.R. § 300.660(b)(1), (2).
We look to the statute "to ascertain and effectuate the intention of the legislature." Minn. Stat. § 645.16 (2006). If a statute's 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). Of particular note for this appeal is the fact that in the quasi-judicial setting of due-process hearings, only parents or school districts have standing to assert a claim; the same restriction does not apply to the administrative-complaint procedures. 20 U.S.C. § 1415(f)(1); Minn. Stat. § 125 A. 091, subd. 12.
Significantly, in the administrative-complaint process, any organization or individual may file a signed written complaint with the SEA (the department), alleging that an educational agency has violated state or federal special-education law. 34 C.F.R. § 300.662(a), (b)(1). Furthermore, if violations are found, it is the SEA's (the department's) obligation to address "[a]ppropriate future provisions of services for all children with disabilities." 34 C.F.R. § 300.660(b)(2) (emphasis added). See Indep. Sch. Dist. No. 709, Duluth v. Bonney, 705 N.W.2d 209 (Minn. App. 2005) (reviewing and affirming a department's enforcement remedies in a decision regarding a special-education complaint filed by an advocate on behalf of a number of preschool children who attended a daycare program in Duluth, without authorization of the parents to file the complaint with the department).
The district cites an unpublished federal district court case, Larson v. Indep. Sch. Dist. No. 316, 2003 WL 21402594 (D. Minn. 2003), for the proposition that parents may file administrative complaints only on behalf of their own children. But Larson is distinguishable because the parents in Larson requested a due-process hearing, which was still pending when they initiated the administrative-complaint procedure under 34 C.F.R. § 300.660.662(a). In the administrative complaint, the parents requested an investigation of their claim that at least five other children enrolled in the school district had been similarly affected. Because a due-process hearing was pending on the same issue involving the parents' child, and the parents did not provide the requested information as to the allegations involving the other children, the department (then known as the Minnesota Department of Children, Families, and Learning) declined to investigate and moved to dismiss based on the parents' failure to state a claim on which relief can be granted. Larson, 2003 WL 21402594 at *3. The department also moved to dismiss the parents' claim for lack of standing. Id. On the motion to dismiss for failure to state a claim, the court found that the parents did not provide the department with sufficient information to pursue their administrative claim and granted the department's motion to dismiss. Id. at *6. The court also held that the parents did not have standing to bring these IDEA claims in federal court, stating that "In order to bring a federal claim, a plaintiff must assert its own legal rights and interests, and cannot rest its claim upon the legal rights or interests of third parties." Id. We conclude that the court's "standing" holding applied to the parents' right to bring their IDEA claims in federal court and had no bearing on whether the parents had "standing" to file a complaint on behalf of the other children with the administrative agency. See In re Complaint against Sandy Pappas Senate Comm., 488 N.W.2d 795, 798 (Minn. 1992) (recognizing that individuals may have statutory standing to file complaints with administrative agencies, yet not have standing to invoke judicial review).
We find no error of law in the department's actions and conclude that the department had the authority and the responsibility to consider the systemic deletion of the DAPE swimming program in relation to all the students to which it applied.
2. Prior Written Notice
The IDEA seeks to achieve its substantive ends largely through procedural means. Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 3050 (1982) (stating that the IDEA "demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP").
Accordingly, the IDEA requires prior written notice when the district or educational agency proposes or refuses to initiate or change the identification, evaluation, or educational placement of a child or the provision of a FAPE to a child. 34 C.F.R. § 300.503(a)(1)(i) (2006); Minn. R. 3525.3600 (2005). The district argues that "although technical paperwork deficiencies existed concerning the Notice," the department acted arbitrarily and capriciously by granting relief to the parents on this issue because the parents had actual notice of the district's actions.
State and federal laws require that each notice include: (1) a description of the action that the district proposes or refuses; (2) an explanation of why the district proposes or refuses to take that action; (3) a description of any other options that the district considered and the reason that it rejected the options; (4) a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action; (5) a description of any other factors relevant to that proposal or refusal; (6) a statement that the child's parents are protected under procedural safeguards and, if the notice is not an initial referral for evaluation, the means by which a copy of those safeguards can be obtained; and (7) sources for parents to contact for help in understanding the law. 34 C.F.R. § 300.503(b) (2006); Minn. Stat. § 125 A. 091, subd. 3 (2006); Bonney, 705 N.W.2d at 217.
Here, the department found that the notices provided to parents by the district were deficient. Specifically, the department determined that "[m]ost Notice Forms have nothing written in that section. Many of the Notice Forms do not contain a name and phone number of a District employee for the parent to contact with questions." The district admits that the notices were defective but claims that the omissions constituted mere "technical paperwork deficiencies" and that the parents "were actually aware of the School District's intentions" to discontinue DAPE swimming services. The district asserts that the required information was provided through other sources. For example, the district argues that the parents were notified of the cancellation of DAPE swimming services in the April 2005 and September 2005 letters; that the parents were informed at IEP meetings; and that the parents actually or impliedly consented to revised IEPs that did not provide for DAPE swimming. But the record does not support the district's position. As the department correctly found: "The District did not state in either letter that it cancelled DAPE swimming program for these Students" and the "letters are not individualized for each student." Furthermore, the department correctly determined that "[t]he letters do not contain the required elements as noted in Minn. R. 3525.3600 and Minn. Stat. § 125 A. 091, subds. 3 and 4 ."
Moreover, as the department correctly notes, "[t]he fact that the IEPs or some other notices might contain the required information does not comply with Minnesota law." Minn. R. 3525.3600 provides that "[w]hen a district proposes or refuses to initiate or change the identification, evaluation, or educational placement of a pupil, or the provision of FAPE to the pupil, the district must serve prior written notice on the parent." See 34 C.F.R. § 300.503(a)(1)(i). The department found that "[t]he District used the Notice Form as a cover letter and a method by which parents could consent to or object to the attached proposed IEP, rather than as a method by which to provide a prior written notice with the required legal components to the parents."
In Bonney, a recent special-education case, the Duluth school district argued that all of the necessary information was provided in the attached IEPs and that the parents had acquiesced to the IEPs. 705 N.W.2d at 217. This court held that if the student's evaluation raises an issue, the notice itself must elaborate on the reasoning behind the decision to decline provision of the services. Id. This court concluded that, because substantial evidence supported the department's conclusion that the district failed to provide complete prior written notices, we must affirm. Id. The same reasoning applies here.
Substantial evidence in the record reflects, and the district admits, that the district failed to follow the notice requirements of 34 C.F.R. § 300.503(a)(1)(i) and Minn. R. 3525.3600. Because the notices were insufficient as a matter of law, the department's determination that the district failed to comply with the notice provisions of the IDEA is neither arbitrary nor capricious.
3. Parental Consent
The district next argues that even if the prior written notices were deficient, the parents (except the complainant) consented to the deletion of the DAPE swimming services by approving revised IEPs that did not include DAPE swimming. The department argues that proper notice is essential to meaningful parental consent and that it has broad authority and responsibility to ensure that local school districts comply with the IDEA, notwithstanding parental consent.
As stated earlier, the IDEA seeks to achieve its substantive ends largely through procedural means. Bd. of Educ. v. Rowley, 458 U.S. at 20506, 102 S. Ct. at 3050. The Fourth Circuit Court of Appeals has held that adequate notice is critical to ensuring parents' participation in the process, stating that "[u]nless school systems apprise parents of their procedural protections . . . parental participation will rarely amount to anything more than parental acquiescence, because parents will assume they have no real say, and the participatory function envisioned by Rowley will go unfulfilled." Hall by Hall v. Vance County Bd. of Educ., 774 F.2d 629, 634 (4th Cir. 1985).
Here, the record indicates that parents did not receive proper notice. Without such notice, parents could not knowingly and intelligently consent to the deletion of DAPE swimming services in their children's IEPs. Because substantial evidence in the record establishes that the procedural requirements of prior written notice were disregarded by the district, there is nothing arbitrary or capricious in the department's decision.
4. Free and Appropriate Public Education (FAPE)
The district also argues that the department erred "by concluding that the discontinuation of swimming violated the students' IEPs and resulted in a denial of a FAPE."
The IDEA regulations require that "[i]f specifically designed physical education is prescribed in a child's IEP, the public agency responsible for the education of that child shall provide the services directly or make arrangements for those services to be provided through other public or private programs." 34 C.F.R. § 300.307(c) (2006); see Myles S. by S. S. v. Montgomery County Bd. of Educ., 824 F. Supp. 1549, 1555 (M.D. Ala. 1993). After an IEP is developed and finalized, it must be implemented as it was written. Manalansan v. Bd. of Educ. of Baltimore City, 2001 WL 939699 at *13 (D. Md. 2001). A school district "does not have the discretion to decline to implement the services listed in the IEP or decide unilaterally, without initiating an IEP meeting to institute a change, that a service listed in the IEP need not be provided." Id.
Accordingly, the district was required to comply with the provisions in the students' IEPs, 31 of which required DAPE swimming. But the district failed to comply with the students' IEPs because it cancelled DAPE swimming altogether. The department found that the district's failure to provide the adaptive swimming services mandated in the students' IEPs denied those students a free appropriate public education (FAPE):
The District violated 34 C.F.R. § 300.350(a)(1) when it failed to implement the DAPE swimming portion of 31 Students' IEPs . . . during the 2005-06 school year.
. . . .
The District violated 34 C.F.R. §§ 300.220(a) and 300.300(a)(3)(i) and (ii), when it adopted its policy to unilaterally cancel DAPE swimming without consideration to the unique special education needs of each Student, resulting in a denial of FAPE.
A. Educational Harm
Despite canceling DAPE swimming, the district argues that because there was no finding of "educational harm," the department acted arbitrarily by ordering compensatory DAPE swimming. But if a district fails to implement the IEP, it is irrelevant whether the student made educational progress despite the district's failure to comply with the IDEA. Manalansan, 2001 WL 939699 at *13. Furthermore, we note that educational harm must be demonstrated in the context of an impartial due-process hearing, but that such a showing is not required in the administrative-complaint proceeding. See Minn. Stat. § 125 A. 091, subd. 21 (2006); 34 C.F.R. § 300.660(b)(1). When the SEA determines that a local school district failed to provide appropriate services to a child with a disability, the SEA has the authority to order compensatory education. 34 C.F.R. § 300.660(b)(1); see also Manalansan, 2001 WL 939699 at *910 (state education agency must decide the merits of the complaint and if it finds a violation, order remedial action, or it may be liable for the local school district's failure to provide a FAPE). And this court has previously upheld the department's compensatory-education order when a district failed to provide services as required by the students' IEPs. Bonney, 705 N.W.2d at 215. In Bonney, the court stated that "[o]nce respondent found that relator failed to provide services to children, respondent had the authority to order relator to develop compensatory education plans." 705 N.W.2d at 215 (citing 34 C.F.R. § 300.660(b)(1)).
B. De minimis
The district asserts that DAPE swimming was de minimis in comparison to the overall services provided because DAPE swimming was only provided 12-17 times per year. This argument also lacks merit because the district cites no authority for a de minimis limitation to the department's enforcement authority under the IDEA. Again, the district cites inapplicable due-process-hearing decisions for such a proposition, rather than administrative-complaint decisions.
Finally, the district also contends that ordering compensatory services for an entire school year is arbitrary and unreasonable because during the 2005-06 school year, the district and the parents agreed to revised IEPs that deleted DAPE swimming. But because the district failed both to comply with the IEPs and to properly revise the IEPs by providing the required prior written notice to the parents, this argument fails.
We see no error of law in the district's determination that a finding of educational harm was not required; nor is there any authority for the application of a "de minimis" standard in the administrative-complaint procedure. Accordingly, the department did not err by finding a denial of a FAPE due to the district's cancellation of DAPE swimming, or by ordering compensatory education.
5. Educational Methodology
The district next argues that its cancellation of DAPE swimming "merely constituted a change in educational methodologies," which does not trigger the IDEA requirement of prior written notice.
Under the IDEA, in order to provide a "free appropriate public education" ("FAPE"), a school must formulate an individualized education plan ("IEP") tailored to a disabled child's unique needs. 20 U.S.C. § 1412 (2000). A school meets its obligation if the disabled student's IEP is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S. Ct. at 3051. As long as the student is making educational progress from his schooling, the educators may determine the appropriate methodology. See Rowley, 458 U.S. at 208, 102 S. Ct. at 3052; see also Lackman v. Ill. State Bd. of Educ., 852 F.2d 290, 297 (7th Cir. 1988) (stating that the IDEA does not give parents the right "to compel a school district to provide a specific program or to employ a specific methodology in providing education for their [disabled] child").
Neither the IDEA nor the Minnesota rules and statutes define "methodology." The federal regulations state that "specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction . . . ." 34 C.F.R. § 300.26(b)(3) (2006) (emphasis omitted). A relevant attachment to the federal regulations states that, regarding methodological decisions,
specific day-to-day adjustments in instructional methods and approaches are not normally the sort of change that would require action by an IEP team. Requiring an IEP to include such a level of detail would be overly prescriptive, impose considerable unnecessary administrative burden, and quite possibly be seen as encouraging disputes and litigation about rather small and unimportant changes in instruction. There is, however, a reasonable distinction to be drawn between a mode of instruction, such as cued speech, which . . . should be reflected in that student's IEP, and a day-to-day teaching approach, i.e., a lesson plan, which would not be intended to be included in a student's IEP.
Attachment to IDEA Regulations, 64 Fed. Reg. 12406, at 12552 (Mar. 12, 1999). Under Minnesota law, the definition of DAPE special education provides that DAPE "may include development of physical fitness, motor fitness, fundamental motor skills and patterns, skills in aquatics, dance, individual group games, and sports." Minn. R. 3525.1352, subp. 1 (2005).
Here, the department concluded that "DAPE swimming, or aquatics . . . is a unique type, or mode, of DAPE: special education service, not a methodology, or day-to-day teaching approach, as argued by the District." The department reasoned that "[o]nce an IEP team determines the mode or type of DAPE services a particular student needs to receive a FAPE, there could be different methodologies used to provide that instruction. For example, there is an American Red Cross methodology for providing DAPE: special education swimming." The department's reasoning is not illogical, and we defer to the department's expertise and special knowledge in this field. Thus, the district could have changed how it offered DAPE swimming (the methodology: Red Cross versus some other program, for example), without prior written notice, but it could not completely delete DAPE swimming from the students' IEPs. As the department notes in its brief, "[a]daptive swimming is not a type of instructional plan decided by the teachers on a day-to-day basis." Accordingly, substantial evidence in the record supports the department's determination that the provision of DAPE swimming services in the students' IEPs was not a mere methodology that the district could change at its whim. We see nothing arbitrary or capricious in the department so holding.
6. The Investigation and Decision
The district next argues that the department violated the IDEA by (a) conducting an inadequate investigation; and (b) by extending the 60-day decision deadline without identifying any "exceptional circumstances."
The district argues that the department's investigation was legally insufficient because the department failed to review all relevant information as required by the IDEA.
"The decision of an administrative agency will not be reversed unless it reflects an error of law, the determinations are arbitrary and capricious, or the findings are unsupported by the evidence." E.N., 620 N.W.2d at 68 (quotation omitted). The process due to school districts is entirely statutory because school districts in Minnesota have no constitutional right to due process. "The right of due process, as effectuated by the concomitant right to a hearing in certain circumstances, was never intended to operate for the benefit of legislatively created bodies." State ex rel. Indep. Sch. Dist. No. 276, Minnetonka, v. Dep't of Educ., 256 N.W.2d 619, 625 (Minn. 1977). When investigating a matter, the law requires the department to "[r]eview all relevant information and make an independent determination as to whether the [school district] is violating a requirement of [the act or regulations]." 34 C.F.R. § 300.661(a)(3).
The district argues that the department failed to review all of the relevant information, asserting that it made only partial copies of documents for the agency record. But there is substantial evidence in the record that the department reviewed the relevant information. The department conducted a two-day, on-site review of 37 students' educational records and made notes regarding their contents for the record. The department incorporated these notes into a 44-page "detailed written decision," involving findings on each student under review. We conclude that the department reviewed the relevant information; but we remind the department of its obligation under the appellate rules and applicable case law to maintain a complete record of the evidence reviewed. See Minn. R. Civ. App. P. 110.01 (stating that record on appeal consists of papers filed in lower court, exhibits, and transcripts); Minn. R. Civ. App. P. 115.04 (applying provisions of rule 110 to record on certiorari review). "Development of a complete record in the agency is preferable to an attempt to develop the record for the first time on appeal." In re Dakota County Mixed Mun. Solid Waste Incinerator, 483 N.W.2d 105, 107 (Minn. App. 1992).
The district also complains that the department did not interview enough teachers or parents during its investigation. But as the department aptly observes in its brief: "[b]ecause the District's violations stem from the District's blanket policy to cancel adaptive swimming services without individualized determination, there was no need for the department to interview other teachers on whether the policy was a good idea." The parents' consent or acquiescence to the improper, blanket change in policy would not have changed the fact that the district violated the IDEA.
B. 60-Day Decision Deadline
The district argues that the department violated the IDEA by failing to comply with the 60-day decision deadline. The department is required to issue its final decision within 60 days after a complaint is filed unless "exceptional circumstances exist." 34 C.F.R. §§ 300.661(a), (b)(1).
Here, the original deadline for the final decision was April 9, 2006. The department provided notice to the parties on April 7, 2006; May 17, 2006; May 31, 2006; and June 20, 2006; each time informing them that it was extending the deadline for issuing its final decision due to "exceptional circumstances." None of the notices identified the exact nature of the "exceptional circumstances," and the final decision was not issued until July 28, 2006. The district argues that the department violated the IDEA by failing to identify the exceptional circumstances.
As it must, the department acknowledged the significant delay and that it had not given specific notice of the reasons for extending the deadline. On appeal, however, the department notes that "[t]his was a complex investigation, involving the review of 37 students' educational needs, services and documents. There are over 300 documents in the record for this proceeding." And we note that the complexity of the investigation is further evidenced in the department's 44-page decision. That said, implicit in the regulation is a requirement that the department actually identify the "exceptional circumstances" when it extends the date for its final decision. Although we cannot conclude that the department's actions were arbitrary and capricious or that they violated the law, we expect the department to comply with both the letter and the spirit of the regulation in the future by identifying the specific nature of any "exceptional circumstances" requiring an extension of the 60-day decision deadline.
Despite the department's delay in releasing its decision, we see no merit in the district's assertion that it was harmed by the delay. The district contends that had the decision been issued within 60 days (April 2006), it could have provided the entire year's DAPE swimming services by the end of the 2005-06 school year. It appears, however, that the department is correct in concluding that providing 12 to 17 DAPE swimming sessions in the span of two months was "unrealistic and unreasonable."
7. Clerical Errors
Finally, the district argues that there are errors in the department's decision regarding individual students' rights to compensatory services. For example, the district argues that the department ordered the district to provide DAPE swimming to student number 29, even though his IEP had never prescribed DAPE swimming. The department assured this court in its appellate brief and at oral argument that minor factual or clerical errors in its decision will be addressed in the corrective-action enforcement process. The district's point is a valid one, but after careful consideration and review of the record, we conclude that any factual or clerical errors can and should be addressed by the department during the corrective-action enforcement process.
We note that there is a provision in the decision that clearly identifies the students entitled to compensatory DAPE swimming. Specifically, the decision orders the district to
develop a plan for compensating Students # 1 through # 37 (exclusive of Students # 4, 7, 10, 27, 34, and 35) for improperly canceling their DAPE swimming for the entire 2005-06 school year. These Students are entitled to receive the amount of DAPE swimming that was included on their IEPs before the District canceled DAPE swimming prior to the start of the 2005-06 school year.
(Emphasis added.) Thus, if a student's IEP for the 2005-06 school year did not include DAPE swimming, there is no indication that the department intended to require the district to provide such compensatory services. We encourage the district and the department to work cooperatively to identify any clerical errors and to make any necessary changes in the corrective-action process.
 But the order also stated that "[d]ocuments not contained in the files reviewed during the site visit, including notices, educational plans, messages, and affidavits created after the dates of the site visit, will not be considered on appeal."
 On August 14, 2006, the U.S. Department of Education issued new regulations to implement provisions of the IDEA as amended by Congress in 2004. The new regulations went into effect on October 13, 2006 and consequently do not apply to the present appeal. 71 Fed. Reg. 46540 (Aug. 14, 2006).
 Subject to an extension for exceptional circumstances. 34 C.F.R. § 300.661(b)(1) (2006).