MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Education

By: Senator(s) Harden

AN ACT TO REVISE STATUTES RELATING TO THE EDUCATION OF EXCEPTIONAL CHILDREN; TO AMEND SECTIONS 37-23-141, 37-23-143 AND 37-23-145, MISSISSIPPI CODE OF 1972, TO REVISE COMPLAINT PROCEDURES FOR PARENTS OF SUCH CHILDREN, PROVIDE FOR MEDIATION, PROVIDE FOR DUE PROCESS HEARINGS, ESTABLISH AND EMPOWER AN ADVISORY COMMITTEE FOR SPECIAL EDUCATION, PROVIDE FOR THE ANNUAL RECOGNITION OF INCLUSIVE PROGRAMS FOR CHILDREN WITH DISABILITIES; TO REPEAL SECTION 37-23-11, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR HEARINGS REGARDING A CHILD'S IDENTIFICATION, EVALUATION AND PLACEMENT, AND PROVIDES FOR DUE PROCESS HEARINGS IN SUCH MATTERS; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 37-23-141, Mississippi Code of 1972, is amended as follows:

37-23-141. (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

(c) Conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(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.

An individual who serves as a mediator:

(a) May not be an employee of the State Department of Education or a local school district;

(b) May not have a personal or professional conflict of interest which impacts his/her objectivity in the mediation; and

(c) Must be trained in effective mediation techniques;

The role of the mediator is to:

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

(b) Chair the meeting;

(c) Assist the parties in reaching an agreement;

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

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

All mediators shall receive training in the following areas:

(a) State and federal special education laws and regulations;

(b) Procedures for conducting mediation conferences in an orderly and controlled manner;

(c) Group process skills essential to achieving consensus agreement;

(d) Phases of mediation;

(e) Procedures for writing a consensus agreement;

(f) Procedures for debriefing the parties; and

(g) Any other topics deemed necessary by the Mississippi Department of Education.

(5) Both parties must be involved in selecting the mediator.

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

(7) 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.

(8) 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.

(9) 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.

(10) 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; and

(11) Access to education records is defined as "a personal inspection and review of a record or an accurate copy of any record, or receipt of an accurate copy of a record, and a request to release a copy of any record."

SECTION 2. Section 37-23-143, Mississippi Code of 1972, is amended as follows:

37-23-143. (1) The State Department of Education shall follow the due process procedures for parents and children requesting hearings under the federal Individuals with Disabilities Education Act (IDEA), 20 USCS et seq., and regulations promulgated thereunder, as are specified in this act.

(2) 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.

(3) The State Department of Education shall recruit applicants for due process hearing officers who shall meet the criteria set forth in this act. Each applicant shall provide a comprehensive disclosure of his or her professional background and work experience. Applicants must hold at least a master's level degree. In the selection of individuals to serve as due process hearing officers, the State Department of Education shall actively solicit former members of the judiciary to serve as due process hearing officers. The State Superintendent of Education shall select qualified persons or organizations to establish and conduct training programs for hearing officers, completion of which shall be a prerequisite to service as a hearing officer. Such training shall be conducted in an unbiased manner by education and legal experts, including persons from outside of the public education system. Training for due process hearing officers shall include, at a minimum, instruction in federal and state laws, rules, regulations, regulatory interpretations and court decisions relating to special education, relevant general education issues, evidence, diagnostic procedures, information about disabilities and techniques and procedures for conducting effective and impartial hearings.

(4) A due process hearing officer shall be terminated by the State Department of Education for just cause if, after written notice is provided, appropriate timely corrective action is not taken. For purposes of this subsection, just cause shall be:

(a) Failure to accept assigned cases without good cause;

(b) Failure or refusal to fulfill duties as a hearing officer in a timely manner;

(c) Consistent disregard for applicable laws and regulations in the conduct of hearings;

(d) Consistent failure to conduct himself or herself in a patient, dignified and courteous manner to parties, witnesses, counsel and other participants in hearings;

(e) Violating applicable laws regarding privacy and confidentiality of records of information;

(f) Manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, disability or national origin;

(g) 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;

(h) Conviction in any jurisdiction of any felony or of a misdemeanor involving moral turpitude or dishonesty;

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

(j) Other malfeasance.

(5) The State Department of Education shall provide all hearing officers access to relevant court decisions, impartial hearing officer decisions (with child identifying information deleted) and updates on revisions to applicable laws and regulations. Hearing officers appointed by the State Department of Education shall serve for an initial term of four (4) years and any reappointments following expiration of the four-year term shall be for a period of two (2) years. Due process hearing officers shall receive reasonable compensation for each hearing at a rate established from time to time by the State Board of Education.

(6) A request for due process hearing will be made to the State Department of Education with a copy of the request being sent to all parties involved.

(7) The State Department of Education shall appoint due process hearing officers using a rotating appointment system and shall notify the hearing officer of his or her appointment. A hearing officer having a personal or professional interest that would conflict with his or her objectivity in the hearing shall so notify the State Superintendent of Education and shall be replaced by the next scheduled impartial due process hearing officer under the rotation system.

(8) Once appointed, the impartial due process hearing officer shall promptly notify all parties or their representatives of the substance of the communication between any party to the due process hearing as a matter of record.

(9) A pre-hearing conference will be held within ten (10) days of the State Department of Education receiving the request for a hearing.

(10) The State Department of Education shall, by rule, establish procedures of the conduct of pre-hearing conferences to be used by all hearing officers. Pre-hearing conferences procedures shall include, but not be limited to, the following:

(a) Determine issues in dispute and the specific relief being sought;

(b) Determine access to records by all parties;

(c) Determine parents' decision regarding if hearing will be open or closed to the public;

(d) Determine sequestering of witnesses;

(e) Identify the type of recording to be used in hearing;

(f) Schedule date, time and location for sharing of evidence;

(g) Determine date and time for sharing of evidence;

(h) 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;

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

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

(k) The right, at the option of parents, to a written or electronic findings of fact and decisions.

(11) 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.

(12) The State Department of Education shall maintain a reporting system of all decisions rendered as a result of due process hearings and shall make such decisions available for review by the public after deleting all child-identifying information and shall provide the State Advisory Committee on the Education of Children with Disabilities a copy of all such decisions on an annual basis.

(13) At any time prior to the conclusion of the hearing, the hearing officer shall have the authority to require additional information and order independent evaluations for the student at the expense of the school district.

(14) The hearing officer shall issue a written decision, including findings of fact and conclusions of law, within ten (10) days after the conclusion of the hearing and mail a copy of the decision to the parents, guardian, or student (if the student requests the hearing), the school district, the director of special education, legal representatives of the parties and the State Department of Education. Unless the hearing officer has granted specific extensions of time at the request of a party, a final decision shall be reached and mailed to the parties named above not later than forty-five (45) days after the request for a due process hearing. The decision shall specify the educational and related services that shall be provided to the student in accordance with the student's needs.

(15) 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 or within thirty (30) days from the date of delivery of the official transcripts of all hearings conducted in connection with the due process hearing to the appealing party, whichever period is longer.

(16) 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 any party from obtaining a temporary restraining order from any court of competent jurisdiction, as deemed necessary by the agency.

(17) The State Department of Education shall prepare an annual written report by July 1 of each year, beginning in 2000, on due process hearings concluded in this state during the preceding year. This report shall be submitted to the members of the State Board of Education, the State Advisory Committee on the Education of Children with Disabilities and shall be made available to the public. This report shall include a listing of all current hearing officers and their qualifications, a current list of mediators and their qualifications, the name of each school district involved in a due process hearing, the date each due process hearing request was filed, the name of the hearing officer assigned to each due process hearing, if mediation procedures were used, mediation outcomes, if used, the hearing date for each due process hearing, the prevailing party in each due process hearing, and the date of the hearing officer's decision in each due process hearing.

SECTION 3. Section 37-23-145, Mississippi Code of 1972, is amended as follows:

37-23-145. (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 thirty (30) members * * * 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:

(i) One (1) parent representing children for birth to two (2) years of age appointed by the Governor;

(ii) Two (2) parents representing preschool age children, one (1) appointed by the Governor and one (1) appointed by the Lieutenant Governor;

(iii) Two (2) parents representing elementary age children, one (1) appointed by the Governor and one (1) appointed by the Lieutenant Governor;

(iv) Two (2) parents representing middle school age children, one (1) appointed by the Governor and one (1) appointed by the Lieutenant Governor;

(v) Two (2) parents representing high school age children, one (1) appointed by the Governor and one (1) appointed by the Lieutenant Governor;

(vi) One (1) parent with a child between the ages of twenty-one (21) and twenty-five (25) appointed by the Lieutenant Governor.

(b) Two (2) individuals with disabilities, one (1) appointed by the Governor and one (1) appointed by the Lieutenant Governor;

(c) One (1) special education teacher and one (1) regular education teacher appointed by the State Superintendent of Education;

(d) One (1) representative of institutions of higher education that prepare special education and related services personnel appointed by the Governor;

(e) One (1) principal and one (1) school superintendent appointed by the State Superintendent of Education;

(f) One (1) administrator of special education programs appointed by the State Superintendent of Education;

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

(i) The Executive Director of the Mississippi Department of Mental Health, or his designee;

(ii) The Executive Director of the Mississippi Department of Rehabilitation Services, or his designee;

(iii) The Director of the Mississippi Department of Health, Early Intervention Program, or his designee;

(h) One (1) representative of private schools and public charter schools appointed by the State Superintendent of Education;

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

(j) One (1) representative from the state juvenile and adult correction agencies appointed by the Attorney General; and

(k) Two (2) members of the State Legislature: the Chairman of the House of Representatives Education Committee, or his designee, and the Chairman of the Senate Education Committee, or his designee.

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

(b) Review annually all information collected, maintained or used by the State Department of Education relating to special education;

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

(d) Advise the State Board of Education on any legislative issues involving the provision of special education;

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

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

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

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

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

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

(k) Develop an annual report to be given to the State Superintendent of Education and state legislators by July 1 regarding the unmet needs of children with disabilities in the state. Co-chairs of the committee will present the annual report to the State Board of Education during the August meeting.

(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 4. Any and all cost related to implementing the provisions of this act shall be the sole responsibility of the State Department of Education, subject to the availability of funds specifically appropriated therefor by the Legislature.

SECTION 5. Section 37-23-11, Mississippi Code of 1972, which provides for hearings regarding a child's identification, evaluation and placement, and provides for due process hearings in such matters, is hereby repealed.

SECTION 6. This act shall take effect and be in force from and after July 1, 2000.