SB2506 (As Sent to Governor) - 1999 Regular Session

HTML> 37-23-1

MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Education

By: Senator(s) Thames, Nunnelee

Senate Bill 2506

(As Sent to Governor)

AN ACT RELATING TO THE EDUCATION OF EXCEPTIONAL CHILDREN; TO PROVIDE DEFINITIONS; TO PROVIDE ELIGIBILITY STANDARDS; TO PROVIDE FOR PARENTAL CONSENT; NOTICE; PARTICIPATION AND MEETINGS WITH SCHOOL OFFICIALS; TO PRESCRIBE EVALUATION PROCEDURES; TO PROVIDE COMPLAINT PROCEDURES; TO PROVIDE FOR MEDIATION; TO PROVIDE FOR DUE PROCESS HEARINGS; TO ESTABLISH AND EMPOWER AN ADVISORY COMMITTEE FOR SPECIAL EDUCATION; TO ESTABLISH STATE PERFORMANCE GOALS FOR CHILDREN WITH DISABILITIES; TO CREATE A SPECIAL FUND DESIGNATED AS "SPECIAL EDUCATION, SPECIAL SERVICES FUND"; TO AMEND SECTION 37-16-9, MISSISSIPPI CODE OF 1972, TO DIRECT STATEWIDE AND DISTRICT-WIDE ASSESSMENT PROGRAMS FOR DISABLED STUDENTS; TO AMEND SECTIONS 37-23-1 THROUGH 37-23-11, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.

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

SECTION 1. Words and terms, unless otherwise defined below, when used in Sections 37-23-1 through 37-23-159 shall be defined in the same manner as those words and terms used in the Individuals with Disabilities Education Act 1997 Amendments (IDEA), applicable federal regulations and relevant court cases:

(a) "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.

(b) "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.

(c) "Consent" means agreement in writing from the parent of a child with a disability pertaining to the activities as required under IDEA and the Family Rights and Privacy Act. Local educational agencies shall ensure that the parent:

(i) Has been fully informed of all information relevant to the activity for which consent is required;

(ii) Understands the activity for which consent is requested; and

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

(d) "Free appropriate public education" means special education and related services provided by local educational agencies that:

(i) Have been provided at public expense, under public supervision and direction, and without charge;

(ii) Meet the standards of the State Department of Education;

(iii) Include an appropriate preschool, elementary, or secondary school education; and

(iv) Are provided in conformity with the individualized education program required under IDEA, applicable federal and state regulations and relevant court cases.

(e) "Individualized education program" or "IEP" means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with the requirements under IDEA, applicable federal and state regulations and relevant court cases.

(f) "Least restrictive environment" means to the maximum extent appropriate, children with disabilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

(g) "Parent" means a person who is legally responsible for a child's welfare or acting for the child in the absence of the legally responsible person. Parent may also mean a natural parent, a guardian, or a surrogate parent.

(h) "Related services" means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

(i) "Special education" means specially designed instruction provided by local educational agencies, at no cost to parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings. This term also includes instruction in physical education.

(j) "Supplementary aids and services" means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with the least restrictive environment requirements under IDEA, applicable federal regulations and relevant court cases.

(k) "Transition services" means a coordinated set of activities for a student with a disability that:

(i) Is designed within an outcome-oriented process, which 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;

(ii) Is based upon the individual student's needs, taking into account the student's preferences and interests;

(iii) Includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

SECTION 2. (1) For the purposes of this section, each local educational agency is eligible for assistance under IDEA Part B for a fiscal year if, in providing for the education of children with disabilities within its jurisdiction, policies, procedures and programs are in effect that are consistent with the regulations established by the State Department of Education.

(2) The local educational agency shall have in effect policies and procedures, and programs that are consistent with the State Department of Education's policies and procedures to ensure:

(a) A free appropriate public education is available to all children with disabilities residing in the state between the ages of three (3) and twenty (20), inclusive. Educational services for children with disabilities who have been suspended or expelled from school shall be provided based on the requirements of IDEA, applicable federal regulations and state regulations;

(b) The full educational opportunity goal established by the state is implemented;

(c) All children with disabilities, who are in need of special education and related services, including children with disabilities attending private school, regardless of the severity of their disabilities, are identified, located, and evaluated;

(d) An individualized education program is developed, reviewed and revised for each child with a disability;

(e) Children with disabilities are provided services within their least restrictive environment;

(f) Children with disabilities and their parents are afforded the procedural safeguards required under IDEA;

(g) Children with disabilities are evaluated as required under IDEA;

(h) The State Department of Education and local education agencies will assure the protection of the confidentiality of any personally identifiable data, information and records collected or maintained as required under IDEA and the Family Rights and Privacy Act.

(i) Children with disabilities participating in early intervention programs assisted under IDEA Part C who will participate in preschool programs assisted under IDEA Part B shall experience a smooth transition. An individualized educational program shall be developed and implemented by the child's third birthday;

(j) Children with disabilities enrolled in private schools by their parents shall be provided special education and related services to the extent required under IDEA;

(k) Children with disabilities who are placed in private schools or facilities by the local educational agency shall be provided special education and related services, in accordance with an individualized education program, at no cost to their parents;

(l) A comprehensive system of personnel development has been developed to ensure appropriately qualified personnel are available and personnel are trained in accordance with the requirements of the State Department of Education and IDEA;

(m) Personnel providing educational services to children with disabilities meet the personnel standards of the State Department of Education;

(n) The performance goals and indicators shall be implemented as established by the State Board of Education; and

(o) Children with disabilities are included in statewide and district-wide assessment programs, with appropriate accommodations, in accordance with regulations established by the State Board of Education.

(3) The local educational agency shall make available to parents of children with disabilities and to the general public all documents relating to the agency's eligibility under IDEA.

(4) If the State Department of Education determines that a local educational agency is not eligible to receive federal funds due to compliance violations not being resolved within a specified timeline, the local educational agency shall be notified of that determination and shall be provided with reasonable notice and an opportunity for a hearing. The local educational agency in receipt of such notice, shall, by means of public notice, take such measures as may be necessary to bring the pendency of an action to withhold funds to the attention of the public within the jurisdiction of such agency.

(5) The State Department of Education, after reasonable notice and an opportunity for a hearing, shall reduce or shall not provide any further payments to the local educational agency until the department is satisfied that the violations have been corrected.

SECTION 3. (1) Consent shall be obtained:

(a) Prior to initial evaluation;

(b) Prior to implementation of the initial individualized educational program for a child with a disability;

(c) Prior to reevaluation, except that such consent is not required, if the local educational agency can demonstrate that it had taken reasonable measures to obtain such consent and the parent failed to respond; and

(d) Prior to the release of educational records as required under the Family Rights and Privacy Act and IDEA.

(2) If the parent of a child with a disability refuses consent for the evaluation, the local educational agency may continue to pursue an evaluation by utilizing the due process hearing procedures under IDEA, except to the extent these are not in conflict with Mississippi law relating to parental consent.

(3) Written prior notice shall be provided to the parents of the child whenever a local educational agency proposes to initiate or change or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to that child.

(4) Written prior notice shall be provided in the native language of the parents, unless it clearly is not feasible to do so.

(5) Written prior notice shall include:

(a) A description of the action proposed or refused by the local educational agency;

(b) An explanation of why the local educational agency proposes or refuses to take the action;

(c) A description of any other options that the local educational agency considered and the reasons why those options were rejected;

(d) A description of any other factors that are relevant to the local educational agency's proposal or refusal;

(e) A description of each evaluation procedure, test, record, or report the local educational agency used as a basis for the proposed or refused action;

(f) A description of any factors that are relevant to the local educational agency's proposal or refusal;

(g) A statement that the parents of a child with a disability have protection under the procedural safeguards under IDEA and, if the notice is not an initial referral for evaluation, notification of an individualized educational program meeting or notice for reevaluation, the means by which a copy of a description of procedural safeguards can be obtained; and

(h) Sources for parents to contact to obtain assistance in understanding the provisions under IDEA.

(6) A copy of the procedural safeguards established by the State Department of Education shall be given to the parents upon:

(a) Initial referral for evaluation;

(b) Each notification of an individualized education program meeting;

(d) Registration of a complaint under IDEA to the State Department of Education.

(7) The State Department of Education and each local educational agency shall establish procedures to ensure parents of children with disabilities have the opportunity to participate in meetings with respect to the identification, evaluation, and education placement of the child, and the provision of a free appropriate public education of such child. Local educational agencies shall provide parents of children with disabilities an opportunity to provide input in the development of the agencies' application for funding, as required under IDEA.

(8) In conducting the evaluation, the local educational agency shall:

(a) Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program including information related to enabling the child to be involved in and progress in the general curriculum or, for preschool children, to participate in appropriate activities;

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

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

(9) Each local educational agency shall ensure that:

(a) Tests and other evaluation materials used to assess a child are:

(i) Selected and administered so as not to be discriminatory on a racial or cultural basis; and

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

(b) Any standardized tests that are given to the child:

(i) Have been validated for the specific purpose for which they are used;

(ii) Are administered by trained and knowledgeable personnel; and

(iii) Are administered in accordance with any instructions provided by the producer of such tests;

(d) Assessment tools and strategies that provide relevant information that directly assist persons in determining the educational needs of the child are provided.

(10) Upon completion of administration of tests and other evaluation materials:

(a) The determination of whether the child is a child with a disability as defined under IDEA and state regulations established by the State Board of Education shall be made by a team of qualified professionals and the parent of the child and certified by a Screening Team as defined by the State Board of Education;

(b) In making such a determination of eligibility, a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency; and

(11) Parents shall have an opportunity to obtain an independent educational evaluation of their child in accordance with the requirements under IDEA.

SECTION 4. (1) The State Department of Education shall establish the necessary rules and regulations in accordance with IDEA to provide for an organization or individual to file a signed written complaint with respect to a violation of federal or state regulations by a local educational agency relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.

(2) Procedures that require the parent of a child with a disability, or the attorney representing the child, to provide notice to the State Department of Education shall include:

(a) The name of the child, the address of the residence of the child, and the name of the school the child is attending;

(b) A description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and

(3) The State Department of Education shall develop a model form to assist parents in filing a complaint in accordance with the requirements under IDEA.

(4) All complaints shall remain protected by the confidentiality requirements under IDEA.

SECTION 5. (1) The State Department of Education shall promulgate the necessary rules and regulations to establish a mediation system which, at a minimum, shall be available whenever a due process hearing under IDEA is requested. The mediation system shall allow parties the opportunity to resolve such disputes involving any matter relating to the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to such child.

(2) The State Department of Education shall ensure that the mediation process is:

(a) Voluntary on the part of the parties;

(b) Not used to deny or delay a parent's right to a due process hearing under IDEA or to deny any other rights afforded under IDEA; and

(3) The State Department of Education may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with a parent training and information center or community parent resource center in the state established under IDEA, or an appropriate alternative dispute resolution entity. The purpose of the meeting is to encourage the use, and explain the benefits, of the mediation process to the parents.

(4) The State Department of Education shall 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.

(5) The state shall bear the cost of the mediation process, including the costs of all meetings described in this section.

(6) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties in dispute.

(7) An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.

(8) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process.

SECTION 6. (1) When any public agency directly responsible for the education of children with disabilities initiates or refuses 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, the parent of a child with a disability or the agency shall have the opportunity to request a state-level impartial due process hearing.

(2) The State Department of Education shall promulgate rules and regulations consistent with the requirements under IDEA to establish a system for the provision of state-level impartial due process hearings. Such provisions shall include:

(a) At least five (5) business days prior to a hearing being conducted, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing. A hearing officer may bar any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

(b) A hearing may not be conducted by an employee of the State Department of Education or the local educational agency involved in the education or care of the child.

(c) The right of either party to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.

(d) The right of either party to present evidence and confront and cross-examine witnesses.

(e) The right, at the option of parents, to a written, or, electronic verbatim record of such hearing.

(f) The right, at the option of parents, to electronic findings of fact and decisions.

(g) Findings and facts shall be made available to the public and transmitted to the advisory panel consistent with the requirements under IDEA.

(3) The decision made by the hearing officer shall be final, except that any party aggrieved by the findings and decision made by the hearing officer shall have the right to bring a civil action with respect to the issues of the 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.

(4) Except as provided under IDEA, during the pendency of any proceedings conducted pursuant to this section, unless the local educational agency and the parents otherwise agree, the child will remain in the then-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed. This requirement does not limit the local educational agency from obtaining a temporary restraining order from any court of competent jurisdiction, as deemed necessary by the agency.

SECTION 7. (1) The State Board of Education shall establish and maintain an advisory panel for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State.

(2) The advisory panel shall consist of members appointed by the State Superintendent of Education who are representative of the state's population and who are composed of individuals involved in, or concerned with, the education of children with disabilities, including:

(a) Parents of children with disabilities;

(b) Individuals with disabilities;

(d) Representatives of institutions of higher education that prepare special education and related services personnel;

(e) State and local education officials;

(f) Administrators of programs for children with disabilities;

(g) Representatives of other state agencies involved in the financing or delivery of related services to children with disabilities;

(h) Representatives of private schools and public charter schools;

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

(j) Representatives from the State juvenile and adult correction agencies.

(3) A majority of the members of the panel shall be individuals with disabilities or parents of children with disabilities.

(4) The duties of the advisory panel shall include:

(a) Advise the State Department of Education of unmet needs within the State in the education of children with disabilities;

(b) Comment publicly on any rules or regulations proposed by the State Department of Education regarding the education of children with disabilities;

(c) Advise the State Department of Education in developing evaluations and reporting on data to the secretary in accordance with the requirements under IDEA;

(d) Advise the State Department of Education in developing and implementing policies relating to the coordination of services for children with disabilities; and

(e) Advise the State Department of Education in developing corrective action plans to address findings identified in federal monitoring reports under IDEA.

(5) The advisory panel shall be provided the opportunity to provide comments to the State Board of Education on rules or regulations proposed by the State Department of Education relating to the implementation of the IDEA 1997 Amendments.

SECTION 8. The State Department of Education shall establish goals for the performance of children with disabilities that will promote the purpose of IDEA and are consistent, to the maximum extent appropriate, with other goals and standards for children established by the State Department of Education. Performance indicators used to assess progress toward achieving those goals that, at a minimum, address the performance of children with disabilities on assessments, drop-out rates, and graduation rates shall be developed. Every two (2) years, the progress toward meeting the established performance goals shall be reported to the public.

SECTION 9. (1) Children with disabilities shall be included in general statewide and district-wide assessments programs, with appropriate accommodations, where necessary. As appropriate, the State Department of Education and the local educational agency shall:

(a) Develop policies and procedures for the participation of children with disabilities in alternate assessments for those children who cannot participate in statewide and district-wide assessment programs; and

(b) Develop and, beginning not later than July 1, 2000, conduct those alternate assessments.

(2) The State Department of Education shall make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

(a) The number of children with disabilities participating in regular assessments;

(b) The number of children participating in alternate assessments;

(c) The performance of those children on regular assessments, beginning not later than July 1, 1998, and on alternate assessments, not later than July 1, 2000, if doing so would be statistically sound and would not result in the disclosure of performance results identifiable to individual children; and

(d) Data relating to the performance of children with disabilities shall be disaggregated for assessments conducted after July 1, 1998.

SECTION 10. There is hereby created in the State Treasury a special fund to be designated as the "Special Education, Special Services Fund" which shall be used to distribute any funds specifically appropriated by the Legislature to such fund. This Special Education, Special Services Fund will be used solely for the provision of direct services to individual children with disabilities. Any funds remaining in the fund at the end of the fiscal year shall not lapse into the State General Fund, but shall carryover to subsequent fiscal years. Any interest accruing on any unexpended balance in the Special Education, Special Services Fund shall be invested by the State Treasurer and shall remain in the fund.

SECTION 11. 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) Children with disabilities shall be included in general statewide and district-wide assessments programs, with appropriate accommodations, where necessary. As appropriate, the State

Department of Education and the local educational agency shall:

(b) Develop and, beginning not later than July 1, 2000, conduct those alternate assessments.

(4) The State Department of Education shall make available to the public, and report to the public with the same frequency and in the same detail as it reports on the assessment of nondisabled children, the following:

(a) The number of children with disabilities participating in regular assessments;

(b) The number of children participating in alternate assessments;

(d) Data relating to the performance of children with disabilities shall be disaggregated for assessments conducted after July 1, 1998.

SECTION 12. Section 37-23-1, Mississippi Code of 1972, is amended as follows:

37-23-1. The purpose of Sections 37-23-1 through 37-23-159 is to mandate free appropriate public 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 C 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. * * * 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.

The State Department of Education shall establish goals for the performance of children with disabilities that will promote the purpose of IDEA and are consistent, to the maximum extent appropriate, with other goals and standards for children established by the State Department of Education. Performance indicators used to assess progress toward achieving those goals that, at a minimum, address the performance of children with disabilities on assessments, drop-out rates, and graduation rates shall be developed. Every two (2) years, the progress toward meeting the established performance goals shall be reported to the public.

SECTION 13. Section 37-23-3, Mississippi Code of 1972, is amended as follows:

37-23-3. (1) An exceptional child shall be defined as any child as herein defined, in the age range birth through twenty (20) years of age with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities and, by reason thereof, needs special education and related services. 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 special educational and related services must be considered for the services on an individual basis.

(2) During the 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 measure 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 an 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 of 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 project; the number and ages of the children who applied for participation and who did participate in the pilot project; and 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 14. 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 provision 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 15. 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, course 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 16. Section 37-23-11, Mississippi Code of 1972, is amended as follows:

37-23-11. (1) When any public agency directly responsible for the education of exceptional children * * *

shall: (a) 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 (b) 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, the parent of a child with a disability or the agency shall have the opportunity to request a state-level impartial due process hearing.

* * *

(b) A hearing may not be conducted by an employee of the State Department of Education or the local educational agency involved in the education or care of the child.

(c) The right of either party to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.

(d) The right of either party to present evidence and confront and cross-examine witnesses.

(e) The right, at the option of parents, to a written, or, electronic verbatim record of such hearing.

(f) The right, at the option of parents, to electronic findings of fact and decisions.

(g) Findings and facts shall be made available to the public and transmitted to the advisory panel consistent with the requirements under IDEA.

SECTION 17. It is the intent of the Legislature that none of the provisions of this act shall create mandates that impose financial or legal requirements upon local school districts which are greater or more restrictive upon local school districts as required by the Individuals with Disabilities Education Act of 1997 and any subsequent amendments or regulations thereunder, or any other relevant federal legislation. Furthermore, it is not the intent of the Legislature to impose any additional state unfunded mandates for the implementation of this act. Any provisions of this act which are inconsistent, create additional unfunded state mandates, or which are more restrictive upon school districts than federal requirements shall be expressly unenforceable and have no effect.

SECTION 18. This act shall take effect and be in force from and after July 1, 1999.