MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Education

By: Senator(s) Thames, Nunnelee

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) The Mississippi Legislature hereby declares that the policy of the state is to ensure every child a fair and full opportunity to reach his/her full potential and that no child as defined in this section shall be excluded from service or education for any reason whatsoever. This policy shall be the practice of the state for children from birth through age twenty-one (21) and the state requires compliance by all public and private agencies providing publicly funded educational programs and services to children with special needs.

(2) The policy of the state is to provide a free appropriate publicly supported education to every child with special needs. The purpose of the act is to:

(a) Provide for a system of special educational opportunities for all children requiring special education, hereinafter called children with special needs;

(b) Provide a system for identifying and evaluating the educational needs of all children with special needs;

(c) Require evaluation of the needs of such children and the adequacy of special education programs before placing children in the programs;

(d) Require periodic evaluation of the benefits of the programs to the children and of the nature of the children's needs after placement;

(e) Require that children with special needs are educated in the least restrictive environment;

(f) Assure the provision of related services;

(g) Assure that the rights of children with special needs and their parents or guardians are protected;

(h) Require local education agencies to establish a policy regarding the programs and services provided to students below the age of three (3) and above the age of twenty-one (21);

(i) Require each local school district to provide information regarding services available through other state, county and local agencies to parents of children with special needs below the age of three (3);

(j) Require special education programs and related services to be administered, supervised and provided by appropriately certified professional staff members;

(k) Require special education programs be located in facilities that are accessible to the disabled;

(l) Require local education agencies to assure that the hearing aids worn by children who are deaf or hearing impaired are functioning properly;

(m) Assure provisions for day schools for the deaf and blind of an age under six (6) years, where early training is in accordance with the most advanced and best approved scientific methods of instruction, always taking into consideration the best interests of the child and his improvement at a time which he/she is most susceptible of improvement;

(n) Prevent denials of equal educational opportunity on the basis of physical, emotional or mental disability;

(o) Ensure that there be no inadequacies, inequities and discrimination with respect to children with special needs; and

(p) Bring state law, regulations and practice into conformity with relevant federal law.

SECTION 2. Words and terms, unless otherwise defined below, when used in this act, shall be defined in the same manner as those words and terms used in the federal Individuals with Disabilities Education Act (IDEA):

(a) "Adaptive behavior" means the ability to demonstrate personal independence and social responsibility according to age and socio-cultural group expectations.

(b) "Adult student" means an emancipated minor or a person age eighteen (18) through twenty-one (21) who is or was enrolled in the public school and who is not under legal guardianship.

(c) "Assistive technology device" means any item, piece of equipment or product system, whether acquired commercially off the shelf, modified or customized, that is used to increase, maintain or improve the functional capabilities of children with disabilities.

(d) "Assistive technology service" means any service that directly assists a student with a disability in the selection, acquisition or use of an assistive technology device. The term includes:

(i) The evaluation of the needs of a student with a disability, including a functional evaluation of the student in his or her customary environment;

(ii) Purchasing, leasing or otherwise providing for the acquisition of assistive technology devices by students with disabilities;

(iii) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing or replacing assistive devices;

(iv) Coordinating and using other therapies, interventions or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(v) Training or technical assistance for a student with a disability or, if appropriate, that student's family; and

(vi) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers or other individuals who may provide services to, employ, or are otherwise substantially involved in the major life functions of students with disabilities.

(e) "Consent" means agreement in writing which is required by this act. Consent shall be obtained from the parent having legal responsibility for educational decision making or the adult student. The district board of education shall ensure that the parent or adult student:

(i) Has been fully informed of all information relevant to the activity for which consent is being sought, in his or her native language or other mode of communication;

(ii) Understands and agrees in writing to the implementation of the activity; and

(iii) Understands that the granting of consent is voluntary and may be revoked at any time.

(f) "Department" means the State Department of Education.

(g) "District board of education" means the local school board of the school district of residence, the board of trustees of a charter school, the state agency or other public education agency which acts as the district of residence for the location, identification, evaluation, determination of eligibility, development of an individualized education program and the provision of a free appropriate, public education to students with disabilities except as defined otherwise.

(h) "Individualized education program" or "IEP" means a written plan developed at a meeting which sets forth present levels of performance, measurable annual goals and short-term objectives or benchmarks and describes an integrated, sequential program of individually designed instructional activities and related services necessary to achieve the stated goals and objectives. This plan shall establish the rationale for the student's educational placement, serve as the basis for program implementation and comply with the mandates set forth in this act.

(i) "IEP team" means the group of individuals who are responsible for the development, review and revision of the student's individualized educational program.

(j) "Native language" means the language or mode of communication normally used by a person with a limited ability to speak or understand the English language.

(k) "Parent" means the natural parent, the legal guardian, foster parent, surrogate parent, person acting in the place of a parent such as the person with whom the student legally resides and/or a person legally responsible for the student's welfare. Unless parental rights have been terminated by a court of appropriate jurisdiction, the natural parent retains all rights under this act.

(l) "Recreation" for students with disabilities means instruction to enable the student to participate in appropriate leisure activities, including involvement in recreation programs offered by the district board of education and the facilitation of a student's involvement in appropriate community recreation programs.

(m) "Referral" means the written request for an initial evaluation to determine whether a student is eligible for services.

(n) "Related services" means transportation and such developmental, corrective and other supportive services as are required to assist a student with a disability to benefit from special education as specified in the student's IEP, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school nursing services, social work services in schools and parent counseling and training that is related to the education of the student.

(o) "Special education" means specially designed instruction to meet the educational needs of students with disabilities including, but not limited to, subject matter instruction, physical education and vocational training.

(p) "Speech-language specialist" means a speech correctionist or speech-language specialist.

(q) "Student" means a person age three (3) through twenty-one (21) who is entitled to receive educational programs and services in accordance with federal or state law or regulation.

(r) "Student age" means the school age of a student as defined by the following:

(i) "Age three (3)" means the attainment of the third birthday. Children attaining age three (3) shall have a free, appropriate public education available to them provided by the district board of education.

(ii) "Age five (5)" means the attainment of age five (5) by the month and day established as the kindergarten entrance cutoff date by the district board of education. Students with disabilities attaining age five (5) after the kindergarten entrance cutoff date shall continue to be provided preschool services for the balance of that school year.

(iii) "Age twenty-one (21)" means the attainment of the 21st birthday by June 30 of that school year. Students with disabilities attaining age twenty-one (21) during the school year shall continue to be provided services for the balance of that school year.

(s) "Student with a disability" means a student who has been determined to be eligible for special education and related services according to the federal Individuals with Disabilities Education Act (IDEA).

(t) "Transition services" means a coordinated set of activities for a student, designed within an outcome-oriented process, that promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living or community participation.

SECTION 3. (1) For the purposes of this section, each district board of education and state agency program that acts as a district of residence is eligible for assistance under IDEA Part B for a fiscal year by having a special education plan in effect that is approved by the State Department of Education. The plan shall consist of policies, procedures, assurances; a comprehensive system of personnel development; data collection and an application that describes the use of the Part B funds. Such components of the plan shall be consistent with the approved State Plan for Special Education and this act.

(2) Each district board of education shall have policies, procedures and programs in effect to ensure the following:

(a) A free appropriate public education is available to all students with disabilities between the ages of three (3) and twenty-one (21), including students with disabilities that have been suspended or expelled from school;

(b) Full educational opportunity to all students with disabilities is provided;

(c) All students with disabilities, who are in need of special education and related services, including students with disabilities attending nonpublic schools, regardless of the severity of their disabilities, are located, identified and evaluated.

(d) An individualized education program is developed, reviewed and as appropriate, revised.

(e) To the maximum extent appropriate students with disabilities are educated in the least restrictive environment;

(f) Students with disabilities are afforded the procedural safeguards required by IDEA;

(g) Students with disabilities are evaluated according to IDEA;

(h) The compilation, maintenance, access to and confidentiality of student records are in accordance with IDEA;

(i) Children with disabilities participating in early intervention programs assisted under IDEA Part C who will participate in preschool programs under this act experience a smooth transition and that by the student's third birthday an individualized education program has been developed and is being implemented;

(j) Students with disabilities who are placed in private schools by the district board of education are provided special education and related services at no cost to their parent;

(k) All personnel serving students with disabilities are appropriately certified and licensed, where a license is required;

(l) The in-service training needs for parents of students with disabilities and professional and paraprofessional staff who provide special education, general education or related services are identified and that appropriate in-service training is provided; and

(m) Students with disabilities are included in statewide and district-wide assessment programs, with appropriate accommodations, where necessary.

(3) Each district board of education shall provide written assurance of its compliance with the above requirements.

(4) Annually, each district board of education shall hold a special meeting to describe how it will use the funds under Part B of the IDEA during the next school year. Announcement of the special meeting will be sent home to every parent who has a child in the district's special education program.

(5) Annually, each district board of education shall submit:

(a) A report of the numbers of students with disabilities according to their federal disability category, age, racial-ethnic background and placement;

(b) A report or the staff, including contracted personnel, providing services to identify, evaluate, determine eligibility, develop individualized education programs, provide related services and/or instruction to students with disabilities and the full-time equivalence of their assignments and relevant information on current and anticipated personnel vacancies and shortages; and

(c) Any additional reports as required by the IDEA (20 U.S.C. Section 1400 et seq.) including, but not limited to, the number of students with disabilities who are:

(i) Exiting education;

(ii) Subject to suspensions and expulsions;

(iii) Removed to interim alternative education settings; and

(iv) Participating in statewide assessments.

Upon request, additional reports shall be submitted to the State Department of Education including, but not limited to, the number of students with disabilities by racial-ethnic group identified as potentially disabled, evaluated and newly classified.

(6) The local school district shall make available to parents of students with disabilities and to the general public all documents relating to the eligibility of the local school district under Part B of the IDEA.

(7) Amendments to the special education plan shall be made according to the following:

(a) The approved special education plan submitted by the district board of education shall remain in effect until the State Department of Education approves such amendments as the district board of education deems necessary; or

(b) If the provisions of the IDEA Amendments of 1997, or its regulations are amended, or there is a new legally binding interpretation of the IDEA by federal or state courts, or there is an official finding of noncompliance with federal or state law or regulations, the State Department of Education shall require the local school district to modify its special education plan only to the extent necessary to ensure compliance with federal and/or state requirements.

SECTION 4. (1) Consent shall be obtained:

(a) Prior to initial evaluation;

(b) Prior to implementation of the initial IEP resulting from initial evaluation;

(c) Prior to reevaluation, except that such consent is not required, if the district board of education can demonstrate that it had taken reasonable measures to obtain such consent and the parent or adult student failed to respond; and

(d) Prior to the release of student records.

(2) If a parent or adult student refuses to provide consent and the district and the parent have not agreed to other action, the district shall request a due process hearing to obtain consent.

(3) Upon receipt of consent, the district board of education shall implement without delay the action for which consent was granted.

(4) Written notice which meets the requirements of this section shall be provided to the parent when a district board of education:

(a) Proposes to initiate or change the identification, classification, evaluation, educational placement of the student or the provision of a free, appropriate public education to the student; or

(b) Declines to initiate or change the identification, classification, evaluation, educational placement of the student or the provision of a free, appropriate public education to the student.

(5) Written notice shall be in language understandable to the general public, and shall be provided in the native language of the parents, unless it clearly is not feasible to do so.

Written notice shall include:

(a) A description of the action proposed or denied by the district board of education including:

(i) An explanation of why it is taking such action;

(ii) A description of any options the district board of education considered and the reasons why those options were rejected;

(iii) A description of the procedures, tests, records or reports and factors used by the district board of education in determining whether to propose or deny an action;

(iv) A description of any other factors that are relevant to the proposal or refusal by the district board of education; and

(v) A statement that the parents of a student with a disability have protection under the procedural safeguards of this act, the means by which a copy of a description of the procedural safeguards can be obtained and sources for parents to contact to obtain assistance in understanding the provisions of this act.

(b) In addition, a copy of the procedural safeguards statement published by the State Department of Education which contains a full explanation of the procedural of safeguards available to parents and/or adult students shall be provided:

(i) Upon referral for an initial evaluation;

(ii) Upon each notification of an IEP meeting;

(iii) Upon reevaluation; and

(iv) When a request for a due process hearing is submitted to the State Department of Education.

(c) The written notice shall be provided to the parent at least ten (10) calendar days prior to the implementation of a proposed action so that the parent and/or adult student may consider the proposal.

(6) A district board of education shall take steps to ensure that the parent is given the opportunity to participate in any school meeting regarding the delivery of special education and related services to their child such as, but not limited to:

(a) The identification and evaluation of the student by providing relevant information to the evaluation team;

(b) The determination of the student's eligibility for special education and related services;

(c) The development of an IEP;

(d) The placement of the student with a disability; and

(e) The annual review of the IEP.

(7) Meetings shall be conducted to determine eligibility and to develop, review and revise the student's IEP. Meetings to determine eligibility and develop an IEP may be combined as long as the requirements for notice of a meeting are met.

(8) Written notice shall be provided to the parent at least ten (10) calendar days prior to the implementation of a proposed action so that the parent and/or adult student may consider the proposal.

(9) Meeting shall be scheduled at a mutually agreed upon time and place.

(10) Notice of meetings shall indicate the purpose, time, location and the names and positions of participants.

(11) If the parent cannot attend the meeting(s), the district board of education or designee shall attempt to ensure parental participation. Parental participation may include the use of electronic conference equipment. Documentation shall be maintained of all attempts to secure the parental participation.

(12) A meeting may be conducted without the parent in attendance if the district board of education can document that it is unable to secure the participation of the parent.

(13) Participants at the IEP meeting shall be allowed to use an audio-tape or video recorder during the meeting.

(14) In conducting the evaluation, each district board of education shall:

(a) Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information:

(i) Provided by the parent that may assist in determining whether a child is a student with a disability and in determining the content of the student's IEP; and

(ii) Related to enabling the student to be involved in and progress in the general education curriculum or, for preschool children with disabilities to participate in appropriate activities;

(b) Not use any single procedure as the sole criterion for determining whether a student is a student with a disability or determining an appropriate education program for the student; and

(c) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(15) Each district board of education shall ensure:

(a) That evaluation procedures including, but not limited to, tests and other evaluation materials, are:

(i) Selected and administered so as not to be racially or culturally discriminatory; and

(ii) Provided and administered in the student's native language or other mode of communication unless it is clearly not feasible to do so;

(b) Any standardized tests that are administered:

(i) Have been validated for the purpose(s) for which they are administered; and

(ii) Are administered by certified personnel trained in conformance with the instructions provided by their producer;

(c) The student is assessed in all areas of suspected disability;

(d) Assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the student are provided;

(e) Tests are selected, administered and interpreted so that when a student has sensory, manual or communication impairments, the results accurately reflect the ability which that procedure purports to measure, rather than the impairment unless that is the intended purpose of the testing; and

(f) The evaluation is conducted by the student's parents and a multi-disciplinary team of professionals consisting of at least two (2) members of the child study team and where appropriate, other specialists. At least one (1) evaluator shall be knowledgeable in the area of the suspected disability.

(16) A parent may request an independent evaluation if there is disagreement with the evaluation provided by a district board of education:

(a) Such independent evaluation(s) shall be provided at no cost to the parent unless the district board of education initiates a due process hearing to show that its evaluation is appropriate and a final determination to that effect is made following the hearing.

(b) Upon receipt of a parental request, each district board of education shall provide information about where an independent evaluation may be obtained.

(c) Any independent evaluation submitted to the district shall be considered in making decisions regarding special education and related services.

SECTION 5. (1) Mediation is a voluntary process which is available to resolve disputes arising under this act. Mediation shall be available for students age three (3) through twenty-one (21) years when there is a disagreement regarding identification, evaluation, classification, educational placement or the provision of a free, appropriate public education. A request for mediation shall not be used to deny or delay the right to request a due process hearing.

(2) The State Department of Education may establish procedures that require a parent, who chooses not to use the mediation process, to meet with a representative from a parent training center or community parent resource center to discuss the benefits of mediation.

(3) Either party may be accompanied and advised at mediation by legal counsel or other person(s) with special knowledge or training with respect to the needs of students with disabilities.

(4) Mediation is available from the State Department of Education at the state level through the Office of Special Education Programs. Mediation shall be provided as follows:

(a) To initiate mediation through the Office of Special Education Programs, a written request shall be submitted to the State Director of the Office of Special Education Programs;

(b) The party initiating the request for mediation shall send a copy of the written request to the other party. The written request shall note that a copy has been sent to the other party. The mediation request shall specify the issue(s) in dispute and the relief sought;

(c) A mediation conference shall be conducted within twenty (20) calendar days after receipt of a written request. At the mediation conference, issues shall be identified and options for resolution shall be explored;

(d) The role of the mediator is to:

(i) Facilitate communication between the parties in an impartial manner;

(ii) Chair the meeting;

(iii) Assist the parties in reaching an agreement;

(iv) Assure that the agreement complies with federal and state law and regulation;

(v) Adjourn the mediation at the request of the parties to obtain additional information or explore options; and

(vi) Terminate mediation if in the mediator's judgment the parties are not making progress toward resolving the issue(s) in dispute;

(e) An individual who serves as a mediator: (i) may not be an employee of any public agency; (ii) may not have a personal or professional conflict of interest which impacts his/her objectivity in the mediation; and (iii) must be qualified and impartial and trained in effective mediation techniques;

(f) The State Department of Education will maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services;

(g) The State Department of Education will bear the cost of the mediator, including travel costs and a standard fee for services based on State Department of Education policies;

(h) The mediation conference shall be held at a time and place that is convenient to the parties in the dispute;

(i) If the mediation results in agreement, the conclusions shall be incorporated into a written agreement and signed by each party. If the mediation does not result in agreement, the mediator shall document the date and the participants at the meeting. No other record of the mediation shall be made;

(j) Discussions that occur during the mediation process shall be confidential and shall not be used as evidence in any subsequent due process hearings or civil proceedings;

(k) The mediator shall not be called as a witness in any subsequent proceeding to testify regarding any information gained during the course of mediation; and

(l) Pending the outcome of mediation, no change shall be made to the student's classification, program or placement, unless both parties agree, or emergency relief as part of a request for a due process hearing is granted by the hearing officer.

SECTION 6. (1) For students age three (3) years through twenty-one (21) years, a due process hearing may be requested by any interested party when there is a disagreement regarding identification, evaluation, reevaluation, classification, educational placement or the provision of a free, appropriate public education.

(2) In addition to the issues specified in (1) above, the district board of education or other public agency responsible for the development of the student's IEP may request a due process hearing when it is unable to obtain required consent to conduct an initial evaluation, reevaluation, to implement an initial IEP or to release student records. The district board of education shall request a due process hearing when it denies a written parental request for an independent evaluation.

(3) A request for a due process hearing shall be made in writing to the State Director of the Office of Special Education Programs. The party initiating the due process hearing shall send a copy of the request to the other party. The written request shall note that a copy has been sent to the other party. The written request shall include the student's name, student's address, parent's name, name of the school the student is attending, the name of the school district and shall state the specific issues in dispute, relevant facts and the relief sought.

(4) When the Office of Special Education Programs receives a request for a due process hearing the following shall occur:

(a) The Office of Special Education Programs shall acknowledge receipt of the request and provide information to the parent regarding free and low cost legal services and the availability of mediation;

(b) Within five (5) calendar days of the written request, the Office of Special Education Programs shall appoint a hearing officer and notify both parties in writing;

(c) The appointment of the due process hearing officer will be based on a rotating appointment system. The list of hearing officers will be made available to the public. A hearing officer having a personal or professional interest that would conflict with his/her objectivity in the hearing shall notify the State Director of Special Education and shall be replaced by the next scheduled impartial due process hearing officer under the rotating system.

(5) 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 impartial due process hearing officers.

(6) The State Department of Education shall select qualified persons or organizations to establish and conduct mandatory training programs for impartial due process hearing officers. The training shall be conducted in an unbiased manner by education and legal experts, including individuals from outside the public education system. Persons, corporations 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 in the case of training related to state education regulations and laws and any federal or state orders or consent decrees applicable to the State of Mississippi. This training shall be presented by State Department of Education personnel.

(7) The training for impartial hearing officers shall include, at a minimum, instruction in federal and state law, rules and regulations, federal regulatory interpretations and court decisions regarding special education and relevant general education issues, diagnostic procedure, information about disabilities and techniques for conducting effective and impartial hearings.

(8) Any party to the hearing shall have the right to request the exclusion of witnesses from the hearing until they are called to testify; provided this provision may not be invoked to exclude any party or its designated representative.

(9) The State Department of Education shall provide impartial due process hearing officers with access to relevant court decisions, impartial hearing officer decisions with child-specific identifying information deleted, statutory and regulatory changes, and federal regulatory interpretations and any applicable consent decree(s).

(10) All impartial due process hearing officers appointed shall serve initial terms of three (3) years; then all reappointments shall be for a term of two (2) years.

(11) Once appointed, the impartial due process hearing officer shall not communicate with the State Department of Education or its employees concerning the hearing, except 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.

(12) The hearing officer shall convene a prehearing conference within ten (10) days of his/her appointment. The purpose of the prehearing conference is:

(a) To schedule a date for the due process hearing, which shall be convenient for all parties;

(b) To determine the location of the due process hearing, which shall be convenient for all parties;

(c) To determine representation by legal counsel;

(d) To determine if the hearing will be open or closed to the public;

(e) To determine all issues claimed to be in dispute and the relief sought;

(f) To determine format of record to be provided to parent(s) or guardian(s);

(g) To determine date for exchange of evidence and list of witnesses;

(h) To determine the need for subpoenas;

(i) To determine and resolve any disputes regarding documents needed by any party;

(j) To determine length of time estimated necessary to complete the hearing;

(k) Any other relevant matters requested by any party.

(13) 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. All subpoenas for documents shall be in compliance with Rule 45 of the Mississippi Rules of Civil Procedure.

(14) Whenever a person refuses to comply with any subpoena issued under this section, the circuit court of the county in which the 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.

(15) The due process hearing officer may administer oaths to witnesses.

(16) A hearing officer shall disclose any actual or potential conflicts of interests 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.

(17) An impartial due process hearing officer shall be terminated by the State Board of Education for just cause if, after written notice is provided, appropriate timely corrective action is not taken.

(18) 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 heard in matters coming before him or her.

(f) Violating applicable laws regarding privacy and confidentiality of records or 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

(j) Falsification of a material fact on his or her application to serve as a due process hearing officer.

(k) 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.

(19) 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 shall mail a copy of the decision to the parent or guardian, the school district, the director of special education and legal representatives of the parties, unless the hearing officer has been granted a specific extension of time agreed to by the parties.

(20) 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.

(21) The period of time 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. Upon the filing of a civil action, the hearing officer shall no longer exercise jurisdiction over the case. The hearing officer's decision shall be binding upon the school district and the parents or guardian unless a civil action is commenced.

(22) 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 thirty (30) days 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.

(23) During the pendency of any administrative or judicial proceeding conducted pursuant to this section, unless the school district and the parents or guardian of the student otherwise agree, 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.

(24) 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 cost 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 and/or placement are 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 45-day period there have been no delays caused by the child's parent or guardian.

(25) At all stages of the hearing, the hearing officer shall require that appropriate accommodations be made available by the local school district for persons with disabilities or for persons whose normally spoken language is other than English.

(26) By April 1 of each year, the State Department of Education shall provide the State Advisory Committee on Children with Disabilities with a copy of all hearing officers' decisions for the previous year. All child-specific identifying information will be deleted.

(27) By April 1 of each year, the State Department of Education shall prepare an annual report including:

(a) A list of current hearing officers and their qualifications;

(b) The number of hearings conducted by each officer;

(c) The outcome of the hearing including the prevailing party; and

(d) The name of the local school districts involved in each hearing.

SECTION 7. (1) An organization or individual may file a signed written complaint with the State Department of Education. The complaint must include a statement that a school district or private school providing special education services has violated a requirement of part B of the Individuals with Disabilities Education Act or state regulations regarding children with disabilities and the facts on which the statement is based. Formal complaints may be addressed to:

State Department of Education

Office of Special Education

Attention: Parent Consultant

Post Office Box 771

359 North West Street - Suite 338

Jackson, MS 39205-0771

Written complaints may be in a letter or on a form provided upon request by the State Department of Education. If assistance is needed in filing the complaint, the complainant may call the State Department of Education, Office of Special Education.

(2) The complainant is contacted to gather additional information that may be needed or offered by the complainant. Information is documented on the Parent/District Contact Form and maintained on file.

(3) If a written complaint received by the State Department of Education contains an issue that is a part of a due process hearing under IDEA, Part B, the State Department of Education will notify the complainant that the procedures of the due process must be followed and the complaint procedures cannot be utilized. Written notification will be provided by the State Department of Education to the complainant within seven (7) days of receipt of the complaint.

(4) If an issue is raised in a written complaint that has previously been decided in a due process hearing involving the same parties, the complainant will be notified that the decision of the hearing officer is binding unless civil action is taken. Written notification will be provided by the State Department of Education to the complainant within ten (10) days of receipt of the complaint.

(5) The filing date of the formal complaint is documented, and the State Department of Education, Office of Special Education notifies the local school district or private school by phone that a complaint has been filed that indicates a violation with Part B regulations and that the Child Action Form and notification letter will be sent.

(6) The Child Action Form and the initial notification letter are completed and mailed to the Superintendent or the District Board of Education and a copy sent to the Supervisor of Special Education Programs within seven (7) days of receipt of the complaint. A copy of the Child Action Form is sent to the appropriate Office of Special Education staff and to the complainant. If the Office of Special Education staff are scheduled to conduct a site visit or follow-up visit with the school district or private school, the student's file and/or program are reviewed to assist school district personnel in determining actions needed to correct the problem.

(7) A written response is to be received by the State Department of Education and the complainant from school district or private school personnel within seven (7) days of the date the initial notification letter is received in the school district. If no response is received, the State Department of Education will call the Supervisor of Special Education to determine the status of resolving the complaint and will mail a reminder letter to the Superintendent. Dates of the call and reminder notice are documented and maintained on file.

(8) Upon receipt of the written response from school district or private school personnel, State Department of Education reviews the data and determines whether the complaint has been resolved. If data indicates the complaint has been resolved, a closing letter is sent to the superintendent/director with copies to the Supervisor of Special Education staff. A letter is also sent to the complainant that addresses each allegation in the complaint and contains (a) findings of fact and conclusions, (b) the reasons for State Department of Education's final decision, and (c) a copy of procedural safeguards.

(9) If the school district's response indicates the complaint has not been resolved, a decision is made as to the need for an on-site visit to the school district or private school to assist them in resolving the problem. If a site visit is necessary, Office of Special Education staff appropriate to address the problem will visit the school district or private school, review the problem, and determine the options available to resolve the problem. School district and private school personnel are then asked to explore the options with parents and determine the appropriate corrective actions. If specific corrective actions are necessary due to non-compliance issues being confirmed during the site visit, the State Department of Education will issue a letter to the school district or private school specifying the problem noted, as well as solutions and timelines for correction.

(10) If, after the receipt of the response from the school district or private school personnel, the complaint is not resolved, a letter is sent to the school district requesting bi-monthly reports until the complaint is resolved in accordance with timelines. The State Department of Education will provide any additional technical assistance needed to achieve compliance.

(11) The school district has sixty (60) days from the date the complaint was filed to resolve a complaint unless exceptional circumstances warrant an extension. An extension that outlines specific exceptional circumstances must be requested in writing by the school district or private school. Exact timeline extensions are set by the State Department of Education personnel. Examples of exceptional circumstances that might warrant an extension are:

(a) If the appointment and results of follow-up testing (i.e., hearing, vision or emotion) will delay the completion of a comprehensive assessment;

(b) If a school district will need time to contact surrounding agencies, residential school or private schools to arrange appropriate placement for a child; and

(c) If a school district will have to order and wait for the delivery of specific materials/equipment to implement the appropriate program for a student.

(12) When documentation received by the State Department of Education indicates a complaint has been resolved, a letter is sent to the superintendent/director of the school district with copies to the Supervisor of Special Education and appropriate State Department of Education, Office of Special Education staff. A letter is sent to the complainant that addresses each allegation and contains (a) findings of fact and conclusions, (b) the reasons for the State Department of Education's final decision, and (c) a copy of procedural safeguards. Letters to the complainant and the public school district or private school also notify them of their right to request the Secretary of Education to review the State Department of Education's final decision.

(13) If, after sixty (60) days, the complaint is not resolved due to disagreement between the parties and an extension has not been granted, letters will be sent to the school district or private school, as well as the complainant, informing them that their only option is for either party to request in writing a due process hearing. Procedural safeguards will be forwarded with each letter, along with notification of the right to request the Secretary of Education to review the State Department of Education's final decision.

(14) In the event that within sixty (60) days of the State Department of Education's receipt of a complaint the school district or the private school is clearly not implementing the solutions and timelines required in the compliance report, the State Department of Education shall notify the superintendent of the school district or private school that IDEA, Part B, and preschool funding will be withheld until such time as compliance is achieved. The hearing procedures will be followed prior to the actual withholding of funds.

SECTION 8. Whenever the State Board of Education, in its discretion, determines that a school district fails to establish and maintain programs of free and appropriate public education which comply with regulations established by the board, the board may withhold all special education monies from the school district and may use the payments which would have been available to such school district to provide special education, directly or by contract, to eligible children with disabilities in such manner as the board considers appropriate.

SECTION 9. (1) The State of Mississippi recognizes that parent and family involvement is essential to educating our state's children to meet high academic expectations. Schools and families must partner together to develop strong programs and policies that meet the needs of each community. Educators must take the initiative in developing these vital collaboratives.

(2) The State Board of Education, in cooperation with the State Department of Education, shall develop and implement policies to support and assist schools and school districts in developing, implementing, and evaluating policies and programs that involve all parents and families. Successful programs will:

(a) Create welcoming atmospheres for parents and families;

(b) Support parents and families as advocates for lifelong learning and as decision-makers in school issues and programs;

(c) promote clear, two-way communications between schools and families about school programs and students' progress;

(d) Assist parents, families and guardians in acquiring techniques to support their children's learning;

(e) Involve parents and family members, wherever appropriate, in a variety of instructional and support roles both within and without the school;

(f) Provide access to and coordinate community and support services for children and families;

(g) Identify and reduce barriers to parent/family involvement;

(h) Provide professional development for teachers, administrators and staff on ways to effectively work with parents and families; and

(i) Provide a written copy of the policy for each parent and/or family and post the policy in the school.

These forms of parent and family involvement require coordinated school-wide efforts and the support of parents, teachers, students and administrators at each school site. Effective parent and family involvement is fundamental to a healthy system of public education that expects all students to achieve at high levels.

(3) There shall be an Advisory Committee for the Education of Students with Disabilities which shall advise and consult with the Governor, the State Superintendent of Education, the State Board of Education and the Director of the Office of Special Education, and which shall engage in such activities as are hereinafter set forth. The advisory committee shall be composed of at least thirty-one (31) members, including:

(a) Parents of children with disabilities;

(i) One (1) parent representing children from birth to two (2) years of age;

(ii) Two (2) parents representing preschool age children;

(iii) Four (4) parents representing elementary age children;

(iv) Three (3) parents representing middle school age children;

(v) Three (3) parents representing high school age children; and

(vi) One (1) parent with a child between the ages of 21 and 25;

(b) Two (2) individuals with disabilities;

(c) One (1) special and one (1) regular education teacher;

(d) One (1) representative of institutions of higher learning;

(e) One (1) principal and one (1) superintendent;

(f) One (1) administrator of special education programs for children with disabilities;

(g) One (1) representative each from the following state agencies:

(i) The Mississippi Department of Mental Health;

(ii) The Mississippi Department of Rehabilitation Services; and

(iii) The Mississippi Department of Health, Early Intervention Program.

(h) One (1) representative of private and public charter schools (if any);

(i) One (1) representative of a vocational, community or business organization concerned with the provision of transition services to children with disabilities;

(j) One (1) representative each from the state juvenile and adult corrections agencies; and

(k) Two (2) members of the State Legislature (one (1) appointed by the Speaker from the House of Representatives Education Committee and one (1) appointed by the Lieutenant Governor from the Senate Education Committee).

(l) The Governor shall appoint the parents of children with disabilities; individuals with disabilities; representatives of other state agencies, representatives if institutions of higher education that prepare special education and related services personnel; representatives from the state juvenile and adult corrections agencies and two (2) members of the State Legislature (one (1) form the House of Representatives Education Committee and one (1) from the Senate Education Committee).

(m) The State Board of Education shall appoint the special and regular education teachers, state and local education officials; administrators of programs for children with disabilities, representatives of private and public charter schools, at least one (1) representative of a vocational, community or business organization concerned with the provision of transition services to children with disabilities.

(4) The advisory committee shall:

(a) Assume all responsibilities required of the state panel by federal law;

(b) Review periodically the regulations, standards and guidelines pertaining to special education and recommend to the State Board of Education any changes which it finds necessary;

(c) Review all information collected, maintained or used by the State Department of Education regarding special education on a yearly basis;

(d) Comment on any new or revised regulations, standards and guidelines proposed for issuance;

(e) Advise the State Board of Education in the development of any state plan provision of special education;

(f) Advise the State Board of Education of any provision of special education relating to legislative issues;

(g) Annually elect its own co-chairs (one (1) a parent of a child with a disability and one (1) a professional);

(h) Establish and implement guidelines and bylaws for the committee to follow;

(i) Annually review committee bylaws and amend as needed; and

(j) Make an annual report to the Governor and State Board of Education regarding the unmet needs of children with disabilities in the state. The annual report will be presented to the State Board of Education during the August meeting.

(5) The State Superintendent of Education should keep members of the State Advisory Committee advised of any and all educational issues presented to the legislators.

SECTION 10. Section 37-16-9, Mississippi Code of 1972, is amended as follows:

37-16-9. (1) The state board shall, after a public hearing and consideration, make provision for appropriate modification of testing instruments and procedures for students with identified handicaps or disabilities in order to ensure that the results of the testing represent the student's achievement, rather than reflecting the student's impaired sensory, manual, speaking or psychological process skills, except when such skills are the factors the test purports to measure.

(2) The public hearing and consideration required hereunder shall not be construed to amend or nullify the requirements of security relating to the contents of examinations or assessment instruments and related materials or data.

(3) The same accommodations or modifications used by the student in regular coursework and shown on the student's IEP (Individualized Education Program) will be permitted in taking the Functional Literacy Examination.

(4) The State Department of Education is hereby directed to conduct a study to determine the number of students with disabilities statewide who have passed all coursework for a diploma but who were prevented from receiving a diploma due to failure of the FLE and the number of students failing particular sections of the FLE. Such a study shall cover the previous three (3) school years.

SECTION 11. Section 37-23-1, Mississippi Code of 1972, is amended as follows:

37-23-1. Except as otherwise provided in Senate Bill No. 2506, 1999 Regular Session, the purpose of Sections 37-23-1 through 37-23-159 is to mandate competent educational services and equipment for exceptional children in the age range three (3) through twenty (20) for whom the regular school programs are not adequate and to provide, on a permissive basis, a free appropriate public education, as a part of the state's early intervention system in accordance with regulations developed in collaboration with the agency designated as "lead agency" under Part H of the Individuals with Disabilities Education Act. The portion of the regulations developed in collaboration with the lead agency which are necessary to implement the programs under the authority of the State Board of Education shall be presented to the State Board of Education for adoption. The mandate for three- and four-year-old exceptional children is in effect only in those years where federal funds under P.L. 99-457 are equal to or greater than Six Hundred Dollars ($600.00) per child. This specifically includes, but shall not be limited to, provision for day schools for the deaf and blind of an age under six (6) years, where early training is in accordance with the most advanced and best approved scientific methods of instruction, always taking into consideration the best interests of the child and his improvement at a time during which he is most susceptible of improvement. Educational programs to exceptional children under the age of three (3) years shall be eligible for minimum program funds as defined in Sections 37-23-3 and 37-19-5.

The educational programs and services provided for exceptional children in Sections 37-23-1 through 37-23-15, 37-23-31 through 37-23-35, 37-23-61 through 37-23-75 and 37-23-77 shall be designed to provide individualized appropriate special education and related services that enable a child to reach his or her appropriate and uniquely designed goals for success. The State Board of Education shall establish an accountability system for special education programs and students with disabilities. The system shall establish accountability standards for services provided to improve the educational skills designed to prepare children for life after their years in school. These standards shall be a part of the accreditation system and shall be implemented before July 1, 1996.

SECTION 12. Section 37-23-3, Mississippi Code of 1972, is amended as follows:

37-23-3. (1) Except as otherwise provided in Senate Bill No. 2506, 1999 Regular Session, an exceptional child shall be defined as any child as herein defined, in the age range birth through twenty (20) years of age for whose particular needs institutional care and training are not available in this state or who cannot or should not pursue regular classwork because of defective hearing, vision, speech, or because of mental retardation or other mental, emotional or physical handicaps. Such children shall be determined by competent professional persons in such disciplines as medicine, psychology, special education, speech pathology and social work and shall be considered exceptional children for the purposes of Sections 37-23-1 through 37-23-159. Such professional persons shall be approved by the State Department of Education. The mandate for the provision of educational programs to exceptional children shall only apply to the children in the age range three (3) through twenty (20). Children who are potentially in need of educational and related services must be considered for the services on an individual basis.

(2) During Fiscal Year 1995 and Fiscal Year 1996, the State Department of Education shall conduct a pilot project in one or more school districts which shall test the method of providing language services described in this subsection. For purposes of this pilot project, a child with a disability as defined in the Individuals with Disabilities Education Act (IDEA) may not be denied language services because his measured cognitive functioning is equivalent to or lower than his measured functioning level in the language area. In order for language services to be provided for a child, the measured functioning level of the child in the language area must indicate a delay relative to the child's chronological age. Individual determination of a child's needs must take into consideration the need for development in the language area, the need for support for basic adaptive skills in language development and the extent to which the child's lack of ability in the language area may have interfered with academic achievement or development milestones. In the area of language development, a child's need for alternative or augmentative communication modes and the need for language development must be considered fundamental in making their determination of need for services.

(3) The State Department of Education shall report to the Education Committees of the House of Representatives and the Senate by December 1, 1995, and December 1, 1996, on the results of the pilot project described in subsection (2) of this section. Such reports shall include, but not be limited to, the following information: the school district or districts included in the pilot project; the number and ages of the children who applied for participation and who did participate in the pilot project; an evaluation of the benefits obtained by the children who participated in the pilot project; an estimate of the number of children who would likely utilize similar services if provided on a statewide basis; and an estimate of the cost of providing such services on a statewide basis.

(4) The State Board of Education shall promulgate regulations which ensure services are provided to children as such services are defined in this chapter.

SECTION 13. Section 37-23-5, Mississippi Code of 1972, is amended as follows:

37-23-5. Except as otherwise provided in Senate Bill No. 2506, 1999 Regular Session, the State Department of Education is empowered to foster, inspect, approve and administer a program of education for exceptional children. The State Department of Education shall make the necessary rules and regulations in keeping with the provisions of Sections 37-23-1 through 37-23-9 and applicable federal laws and regulations which are not in conflict with Mississippi law for its proper administration and shall employ such personnel as may be necessary to administer such program.

The department shall require that the program of education for exceptional children be designed to provide individualized appropriate special education and related services that enable a child to reach his or her appropriate and uniquely designed goals for success.

SECTION 14. Section 37-23-9, Mississippi Code of 1972, is amended as follows:

37-23-9. Except as otherwise provided in Senate Bill No. 2506, 1999 Regular Session, courses of study, teacher-pupil ratio, adequacy of methods of instruction, in-service training qualifications of teachers and technicians, and necessary equipment for special education must comply with the requirements established by the state department of education. Boards of trustees of the districts wherein a special class or classes are established are to employ teachers as provided by law for the purpose of teaching the established special classes.

SECTION 15. Section 37-23-11, Mississippi Code of 1972, is amended as follows:

37-23-11. (1) Except as otherwise provided in Senate Bill No. 2506, 1999 Regular Session, when any public agency directly responsible for the education of exceptional children, with the exception of those children possessing an exceptionally high degree of intellect, ability or creative talent, shall: (1) initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child, or (2) refuse to initiate or change the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child, and a hearing be initiated, either before the public agency directly responsible for the education of the child or the State Department of Education, the hearing officer and the State Department of Education shall have the power to compel the attendance of witnesses.

(2) Any party aggrieved by the findings and decision of a hearing officer made in an impartial due process hearing pursuant to the Individuals With Disabilities Education Act may bring a civil action in any state court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. The action shall be filed no later than thirty (30) days after the date of the hearing officer's decision.

SECTION 16. This act shall take effect and be in force from and after July 1, 1999.