1997 Regular Session
By: Senator(s) Nunnelee
Senate Bill 2882
AN ACT TO PROVIDE DUE PROCESS PROCEDURES AND SPECIFIC CRITERIA FOR IMPARTIAL HEARING OFFICERS APPOINTED BY THE STATE DEPARTMENT OF EDUCATION FOR HOLDING DUE PROCESS HEARINGS UNDER THE FEDERAL INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA); AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The State Department of Education shall follow the due process procedures for parents and children requesting hearings under the federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. et seq., and regulations promulgated thereunder, as are specified in this act.
SECTION 2. The State Department of Education shall establish an impartial due process hearing system which shall at a minimum be consistent with all applicable federal laws and regulations and shall promulgate rules and procedures for due process hearings consistent with this section and shall establish the qualifications of due process hearing officers.
SECTION 3. The State Department of Education shall recruit applicants for due process hearing officers who shall meet the criteria set forth in this act.
SECTION 4. Each applicant shall provide a comprehensive disclosure of his or her professional background and work experience. Applicants must hold at least a masters level degree and have relevant experience. Current employees of the State Department of Education, local school districts or special education cooperatives, part-time contractual school personnel who serve in a consulting capacity or private providers of special education facilities or programs shall be disqualified from serving as due process hearing officers.
SECTION 5. The State Department of Education shall select qualified persons or organizations to establish and conduct training programs for hearing officers, completion of which shall be a prerequisite to service as a hearing officer. Such training shall be conducted in an unbiased manner by education and legal experts, including persons from outside of the public education system. Persons or organizations receiving any type of compensation from the State Department of Education or a local school district shall be prohibited from providing training except for training related to state education regulations and laws or orders from any court applicable to the public schools of this state.
SECTION 6. Training for due process hearing officers shall include, at a minimum, instruction in federal and state laws, rules, regulations, regulatory interpretations and court decisions relating to special education, relevant general education issues, evidence, diagnostic procedures, information about disabilities and techniques and procedures for conducting effective and impartial hearings.
SECTION 7. Hearing officers appointed by the State Department of Education shall serve for an initial term of four (4) years and any reappointments following expiration of the four-year term shall be for a period of two (2) years.
SECTION 8. Impartial due process hearing officers shall receive reasonable compensation for each hearing at a rate established by the school district for which the hearing is being conducted which shall be within any guidelines adopted from time to time by the State Department of Education.
SECTION 9. The State Department of Education shall provide all hearing officers access to relevant court decisions, impartial hearing officer decisions (with identifying information deleted) and updates on revisions to applicable laws and regulations.
SECTION 10. The State Department of Education shall maintain a reporting system of all decisions rendered as a result of due process hearings and shall make such decisions available for review by the public after deleting all identifying information and shall provide the State Advisory Committee on the Education of Children with Disabilities a copy of all such decisions on an annual basis.
SECTION 11. An impartial due process hearing officer shall be terminated by the State Department of Education for just cause if, after written notice is provided, appropriate timely corrective action is not taken. For purposes of this subsection, just cause shall be (a) failure to accept assigned cases without good cause; (b) failure or refusal to fulfill duties as a hearing officer in a timely manner; (c) consistent disregard for applicable laws and regulations in the conduct of hearings; (d) consistent failure to conduct himself or herself in a patient, dignified and courteous manner to parties, witnesses, counsel and other participants in hearings; (e) failure to accord parties or their representatives a full and fair opportunity to be hear in matters coming before him or her; (f) violating applicable laws regarding privacy and confidentiality of records of information; (g) manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, disability or national origin; (h) failure to recuse himself or herself from a hearing in which he or she has a personal, professional or financial conflict of interest which he or she knew or should have known existed at any time prior to or during the hearing; (i) conviction in any jurisdiction of any felony or of a misdemeanor involving moral turpitude or dishonesty; (j) falsification of a material fact on his or her application to serve as a due process hearing officer; or (k) other malfeasance. In addition, an impartial hearing officer who, as a result of events occurring after appointment, no longer meets the minimum requirements set forth in this section, shall be disqualified to complete the balance of his or her term.
SECTION 12. The State Department of Education shall prepare an annual written report no later than July 1 of each year, beginning in 1998, on due process hearings concluded in this state during the preceding year. This report shall be submitted to the members of the State Board of Education, the State Advisory Committee on the Education of Children with Disabilities and shall be made available to the public. This report shall include a listing of all current hearing officers; their qualifications; the number of hearings conducted by each officer, and the outcome of each hearing.
SECTION 13. The State Department of Education shall appoint due process hearing officers using a rotating appointment system and shall notify the hearing officer of his or her appointment. A hearing officer having a personal or professional interest that would conflict with his or her objectivity in the hearing shall so notify the State Superintendent of Education and shall be replaced by the next scheduled impartial due process hearing officer under the rotation system. If a party withdraws its request for a due process hearing after a hearing officer has been appointed, that hearing officer shall retain jurisdiction over a subsequent hearing that involves the same parties and is requested within one (1) year from the date of withdrawal of the previous request, unless that hearing officer is unavailable.
SECTION 14. A former employee or current resident of the school district, special education cooperative or other public entity involved in the due process hearing shall recuse himself or herself.
SECTION 15. A hearing officer shall disclose any actual or potential conflicts of interest to the parties upon learning of those conflicts. Any party may raise facts that constitute a conflict of interest for the hearing officer at any time before or during the hearing and may move for recusal.
SECTION 16. Impartial due process hearings shall be conducted pursuant to this act and rules and regulations promulgated by the State Department of Education consistent with this act and other governing laws and regulations.
SECTION 17. Once appointed, the impartial due process hearing officer shall not communicate with the State Department of Education or its employees concerning the hearing, except that where circumstances require, communications for administrative purposes that do not deal with substantive or procedural matters or issues on the merits are authorized, provided that the hearing officer promptly notifies all parties or their representatives of the substance of the communication as a matter of record.
SECTION 18. Parents and school districts may participate in special education mediation to resolve disputes regarding the provision of a free appropriate public education to an eligible child or a child suspected of being eligible. Mediation shall be voluntary and must be mutually agreed upon by the parents and the school district. Mediation may be requested by the parents or school district when (a) a conflict regarding the educational program of an eligible child or a child suspected of being eligible cannot be resolved without third party assistance; or (b) a due process hearing is being requested by any party. When the parents and the school district agree to mediate a conflict, a "Request for Mediation" form shall be completed and signed by all parties and forwarded to the State Department of Education. The state shall bear the cost for the mediator. The mediation session(s) shall occur at a mutually agreed upon time and date but may not delay or deny any party's right to a due process hearing or extend prescribed deadlines if such hearing has been requested.
SECTION 19. Mediation sessions shall be conducted by neutral third-party mediators assigned by the State Department of Education. All mediators shall receive training in the following areas:
(a) State and federal special education laws and regulations;
(b) Procedures for conducting mediation sessions in an orderly and controlled manner;
(c) Group process skills essential to achieving consensus agreement;
(d) Phases of mediation;
(e) Procedures for writing a consensus agreement;
(f) Procedures for debriefing the parties; and
(g) Any other topics deemed necessary by the State Department of Education.
SECTION 20. Records, notes or summaries of mediation proceedings may not be entered into evidence in any due process hearing. A mediator may not be called as a witness in any due process hearing for a child for whom he or she was the mediator. The school district shall be responsible for providing appropriate meeting space and shall bear the cost of the mediation with exception of the services of the mediator. Any federal laws relating to mediation of special education disputes which are enacted after the effective date of this section shall supersede this section.
SECTION 21. The hearing officer shall convene a pre-hearing conference not less than fourteen (14) days before the scheduled date for the due process hearing for the general purpose of aiding in the fair, orderly and expeditious conduct of the hearing. The hearing officer shall provide the parties with written notice of the pre-hearing conference at least ten (10) days in advance of the conference. The written notice shall require the parties to notify the hearing officer by a date certain whether they intend to participate in the pre-hearing conference. The hearing officer may conduct the pre-hearing conference in person or by telephone. Each party shall disclose at the pre-hearing conference (a) whether it is represented by legal counsel or intends to retain legal counsel; (b) the matters it believes to be in dispute in the case and the specific relief being sought; (c) whether there are any additional evaluations for the student that it intends to introduce into the hearing record that have not been previously disclosed to the other parties; (d) a list of all documents it intends to introduce into the hearing record, including a brief description of each document; and (e) the names of all witnesses it intends to call to testify at the hearing. The requirements to disclose documents and witnesses shall not preclude the introduction of additional documents or the calling of additional witnesses not anticipated at the time of the pre-hearing conference, provided documents are produced in accordance with federal regulations. The hearing officer shall specify the order of presentation to be followed at the hearing. If the pre-hearing conference is held by telephone, the parties shall transmit the information required in this paragraph in such a manner that it is available to all parties at the time of the pre-hearing conference. The State Department of Education shall, by rule, establish additional procedures for the conduct of pre-hearing conferences. The impartial due process hearing officer shall not initiate or participate in any ex parte communications with the parties, except to arrange the date, time and location of the pre-hearing conference and due process hearing and to receive confirmation of whether a party intends to participate in the pre-hearing conference.
SECTION 22. The parties to a due process hearing shall have all rights, duties and privileges provided by applicable federal law and regulations and shall in addition to such rights, duties and privileges be provided a typed transcript of the due process hearing.
SECTION 23. If at issue, the school district shall present evidence that it has properly identified and evaluated the nature and severity of the student's suspected or identified disability and that, if the student has been or should have been determined eligible for special education and related services, that it is providing or has offered a free appropriate public education to the student in the least restrictive environment, consistent with procedural safeguards and in accordance with an individualized educational program. At any time prior to the conclusion of the hearing, the impartial due process hearing officer shall have the authority to require additional information and order independent evaluations for the student at the expense of the school district.
SECTION 24. Any party may request that the due process hearing officer issue a subpoena to compel the testimony of witnesses or the production of documents relevant to the resolution to the hearing. Whenever a person refuses to comply with any subpoena issued under this section, the circuit court of the county in which that hearing is pending, on application of the impartial hearing officer or the party requesting the issuance of the subpoena, may compel compliance through the contempt powers of the court in the same manner as if the requirements of a subpoena issued by the court has been disobeyed. The due process hearing officer may administer oaths to witnesses.
SECTION 25. The impartial hearing officer and only the impartial hearing officer shall issue a written decision, including findings of fact and conclusions of law, within ten (10) days after the conclusion of the hearing and mail a copy of the decision to the parents, guardian, or student (if the student requests the hearing), the school district, the director of special education, legal representatives of the parties and the State Department of Education. Unless the hearing officer has granted specific extensions of time at the request of a party, a final decision shall be reached and mailed to the parties named above not later than forty-five (45) days after the request for a due process hearing. The decision shall specify the educational and related services that shall be provided to the student in accordance with the student's needs.
SECTION 26. The hearing officer shall retain jurisdiction for the sole purpose of considering a request for clarification of the final decision submitted in writing by a party to the impartial hearing officer within ten (10) days after the date of the decision. A copy of the request for clarification shall specify the portions of the decision for which clarification is sought and shall be mailed to all parties of record and to the State Department of Education. The request shall operate to stay implementation of those portions of the decision for which clarification is sought, pending action on the request by the hearing officer, unless the parties otherwise agree. The hearing officer shall issue a clarification of the specified portion of the decision or issue a partial or full denial of the request in writing within ten (10) days of receipt of the request and mail copies to all parties to whom the decision was mailed. This subsection does not permit a party to request or authorize a hearing officer to entertain reconsideration of the decision itself. The period for seeking review of the decision shall be tolled from the date the request is submitted until the date the hearing officer acts upon the request. The hearing officer's decision shall be binding upon the school district and the parents or guardian unless a civil action is commenced.
SECTION 27. Any party to an impartial due process hearing aggrieved by the final written decision of the impartial due process hearing officer shall have the right to commence a civil action with respect to the issues presented in the impartial due process hearing. Such civil action may be brought in any court of competent jurisdiction within one (1) year from the date of the decision of the impartial due process hearing officer. The civil action authorized by this subsection shall not be exclusive of any rights or causes of action otherwise available. The commencement of a civil action under this subsection shall operate as a supersedeas. In any action brought under this subsection, the court shall receive the record of the impartial due process hearing, shall hear additional evidence at the request of a party and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
SECTION 28. During the pendency of any administrative or judicial proceeding conducted pursuant to this act, unless the school district and the parents or guardian of the student otherwise agree or unless pursuant to other applicable provisions of law, the student would be expelled or suspended, the student shall remain in his or her present educational placement and continue in his or her present eligibility status and continue to receive special education and related services, if any being received. If the hearing officer orders a change in the eligibility status, educational placement, or special education and related services provided to the student, that change shall not be implemented until thirty (30) days have elapsed following the date the hearing officer's decision is mailed to the parties in order to allow any party aggrieved by the decision to commence a civil action to stay implementation of the decision. If applying for initial admission to the school district, the student shall, with the consent of the parents or guardian, be placed in the school district program until all such proceedings have been completed. The costs for any special education and related services or placement incurred following forty-five (45) days after the initial request for evaluation shall be borne by the school district if the services or placement is in accordance with the final determination as to the special education and related services or placement that must be provided to the child, provided that during such forty-five (45) day period there have been no delays caused by the child's parent or guardian.
SECTION 29. At all stages of the hearing, the hearing officer shall require that appropriate accommodations be made available by the school district for persons with disabilities or for persons whose normally spoken language is other than English.
SECTION 30. If any provision of this act or its application to any person or circumstance is held invalid, the invalidity of that provision or application shall not affect other provisions or applications of the act that can be given effect without the invalid application or provision and to this end, the provisions of this act are severable, unless otherwise provided by this act.
SECTION 31. This act shall take effect and be in force from and after July 1, 1997.