House Bill 1366

AN ACT TO BRING FORWARD SECTIONS 37-23-61, 37-23-63, 37-23-65, 37-23-67, 37-23-69, 37-23-71, 37-23-73, 37-23-75 AND 37-23-77, MISSISSIPPI CODE OF 1972, WHICH RELATE TO FINANCIAL ASSISTANCE TO EXCEPTIONAL CHILDREN ATTENDING PRIVATE OR PAROCHIAL SCHOOLS, FOR THE PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 37-23-61, Mississippi Code of 1972, is brought forward as follows:

37-23-61. As used in Sections 37-23-61 through 37-23-75, the word "child" shall mean any child who cannot pursue all regular classwork due to reasons of defective hearing, vision, speech, mental retardation, or other mental or physical conditions as determined by competent medical authorities and psychologists. Said medical authorities and psychologists shall be approved by the State Department of Education.

SECTION 2. Section 37-23-63, Mississippi Code of 1972, is brought forward as follows:

37-23-63. Every child who is a resident citizen of the State of Mississippi under twenty-one (21) years of age, who cannot pursue all regular classwork due to reasons of defective hearing, vision, speech, mental retardation or other mental or physical conditions as determined by competent medical authorities and psychologists, who has not finished or graduated from high school, and who is in attendance in a private school, parochial school or speech, hearing and/or language clinic that is accredited by a state or regional accrediting agency or approved/licensed by the State Department of Education, shall be eligible and entitled to receive state financial assistance in the amount set forth in Section 37-23-69. Children who are certified by the designated state authority as requiring inpatient care in a private intermediate care facility for the mentally retarded or psychiatric residential treatment facility, with Medicaid reimbursement, shall be eligible and entitled to receive state financial assistance under the provisions of Section 37-23-69, if an approved private school is operated as an integral part of the facility which provides twenty-four (24) hours a day monitoring, treatment and education.

SECTION 3. Section 37-23-65, Mississippi Code of 1972, is brought forward as follows:

37-23-65. The State Department of Education is authorized and directed to promulgate rules and regulations for the payment of such financial assistance and the administration of Sections 37-23-61 through 37-23-75 generally.

The State Department of Education shall have the authority to promulgate and enforce reasonable rules and regulations establishing standards for administration of the program contemplated by Sections 37-23-61 through 37-23-75, consistent with the maintenance of high quality programs for the benefit of the exceptional children served.

The State Department of Education shall require that the programs for which children are eligible for financial assistance under Sections 37-23-61 through 37-23-75 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 4. Section 37-23-67, Mississippi Code of 1972, is brought forward as follows:

37-23-67. The State Department of Education shall have the power to receive and administer all funds for or hereafter appropriated to, provided for, or otherwise accruing to, the State Department of Education for the purpose of providing financial assistance to students attending private schools, parochial schools or speech, hearing and/or language clinics that are accredited by a state or regional accrediting agency or approved/licensed by the State Department of Education, for the purpose of defraying the cost of the administration of Sections 37-23-61 through 37-23-75, and for any and all purposes necessary or proper for the administration of the provisions of said sections.

SECTION 5. Section 37-23-69, Mississippi Code of 1972, is brought forward as follows:

37-23-69. The State Department of Education shall have the power to determine and pay the amount of the financial assistance to be made available to each applicant, and to see that all applicants and the programs for them meet the requirements of the program for exceptional children. No financial assistance shall exceed the obligation actually incurred by the applicant for tuition and fees. Within the amount of available state funds appropriated for such purpose, each such applicant may receive assistance according to the following allowances:

(a) If the applicant chooses to attend a private school, a parochial school or a speech, hearing and/or language clinic having an appropriate program for the applicant, and if the school or clinic meets federal and state regulations, then the tuition reimbursement will be one hundred percent (100%) of the first Six Hundred Dollars ($600.00) in tuition charged by the school or clinic; or, if the applicant is under six (6) years of age, and no program appropriate for the child exists in the public schools of his domicile, then the reimbursement shall be one hundred percent (100%) of the first Six Hundred Dollars ($600.00) in tuition charged by the school or clinic, and fifty percent (50%) of the next Eight Hundred Dollars ($800.00) in tuition charged by the school or clinic;

(b) A public school district shall be reimbursed for the educational costs of an applicant up to a maximum of Three Thousand Dollars ($3,000.00) if the following conditions are met: (i) an applicant in the age range six (6) through twenty (20) requests the public school district where he resides to provide an education for him and the nature of the applicant's educational problem is such that, according to best educational practices, it cannot be met in the public school district where the child resides; (ii) the public school district decides to provide the applicant a free appropriate education by placing him in a private school, a parochial school or a speech, hearing and/or language clinic having an appropriate program for the applicant; and (iii) the program meets federal and state regulations. Nothing in this paragraph shall prevent two (2) or more public school districts from forming a cooperative to meet the needs of low incidence exceptional children, nor shall the public school be relieved of its responsibility to provide an education for all children.

If an exceptional child, as defined in Section 37-23-3, is placed in a therapeutic or other group home licensed or approved by the state which has no educational program associated with it, the local school district in which the home is located shall offer an appropriate educational program to that child.

At any time that the Individualized Education Program (IEP) Committee in the district where the home is located determines that an exceptional child, as defined in Section 37-23-3, residing in that home can no longer be provided a free appropriate public education in that school district, and the State Department of Education agrees with that decision, then the State Department of Education shall recommend to the Department of Human Services placement of the child by the Department of Human Services, which shall take appropriate action. The placement of the exceptional child in the facility shall be at no cost to the local school district. Funds available under Sections 37-19-1 through 37-19-53 and Sections 37-23-61 through 37-23-77, as well as any available federal funds, may be used to provide the costs of the placement. If the exceptional child is under the guardianship of the Department of Human Services or another state agency, the State Department of Education shall pay only for the educational costs of that placement, and the other agency shall be responsible for the room, board and any other costs. The special education and related services provided to the child shall be in compliance with State Department of Education and any related federal regulations. The State Board of Education may promulgate regulations that are necessary to implement this section; and

(c) If an appropriate local or regional system of care, including a free appropriate public education, is available for exceptional children who are currently being served in out-of-district or Department of Human Services placements pursuant to Section 37-23-69(b) or 37-23-77, then the state funds from the State Department of Education which would have been used for those placements may be paid into a pool of funds with funds from other state agencies to be used for the implementation of the individualized plans of care for those children. If there are sufficient funds to serve additional exceptional children because of cost savings as a result of serving these students at home and/or matching the pooled funds with federal dollars, the funds may be used to implement individualized plans of care for those additional exceptional children. Each local or regional provider of services included in the individualized plans of care shall comply with all appropriate state and federal regulations. The State Board of Education may promulgate regulations that are necessary to implement this section.

The State Department of Education may also provide for the payment of such financial assistance in installments and for proration of such financial assistance in the case of children attending a school or clinic for less than a full school session and, in the event that available funds are insufficient, may allocate the available funds among the qualified applicants and local school districts by reducing the maximum assistance provided for herein.

Any monies provided an applicant under Sections 37-23-61 through 37-23-75 shall be applied by the receiving educational institution as a reduction in the amount of the tuition paid by the applicant, and the total tuition paid by the applicant shall not exceed the total tuition paid by any other child in similar circumstances enrolled in the same program in that institution. However, this limitation shall not prohibit the waiving of all or part of the tuition for a limited number of children based upon demonstrated financial need, and the State Department of Education may adopt and enforce reasonable rules and regulations to carry out the intent of these provisions.

SECTION 6. Section 37-23-71, Mississippi Code of 1972, is brought forward as follows:

37-23-71. Upon approving the application for financial assistance, the State Department of Education shall issue its commitment in writing to the parent or guardian of, or person standing in loco parentis to the applicant, or to the public school district, which said commitment shall be for a specified amount for each day. Payments made under such commitment shall be made by the department, in accordance with the terms of the commitment, and each commitment shall be conditioned upon the applicant's attendance in accordance with his application and the provisions of Sections 37-23-61 through 37-23-75.

SECTION 7. Section 37-23-73, Mississippi Code of 1972, is brought forward as follows:

37-23-73. In the event of disapproval by the state department of education of an application for financial assistance payable from department funds, the department shall give notice to the applicant, through the parent or guardian of, or person standing in loco parentis to, the applicant, or to the public school district, by certified mail. Any applicant, through the parent or guardian of, or the person standing in loco parentis to, the applicant, or to the public school district, may, within ten (10) days after receipt of such notice, apply to the state board of education for a hearing, and shall be given a prompt and fair hearing on the question of entitlement to such financial assistance. The board shall render prompt decision upon such hearing. If the board shall affirm the previous action of disapproval of the application, notice shall be given to the applicant, through the parent or guardian of, or the person standing in loco parentis to, the applicant, or to the public school district, by certified mail. Any applicant aggrieved by the action of the board may, through the parent or guardian of, or the person standing in loco parentis to, the applicant or to the public school district within ten (10) days after receipt of such notice, file a petition in the chancery court of the county in which applicant resides for a hearing in the matter on all questions of fact and of law. The petition shall be served upon the state superintendent of public education. Within thirty (30) days after service of the petition, the board shall prepare and deposit a certified transcript of the record in the case in the office of the clerk of the court, which record shall include a copy of the application and any official findings, orders and rulings of the board in the case. The state board of education shall have thirty (30) days after the service of the petition within which to appear and file exceptions, answers or other pleadings. Additional time for preparation of the certified transcript of the record and for appearing and filing exceptions, answers or other pleadings may be granted to the board by order of the court. The court, after considering the law, the pleadings and such evidence as may be adduced in the case, may modify, affirm or reverse the findings of the board and make, issue and enter its judgment accordingly. Appeal from any such judgment shall be subject to the procedures applicable to appeals in ordinary civil actions.

SECTION 8. Section 37-23-75, Mississippi Code of 1972, is brought forward as follows:

37-23-75. It shall be unlawful for any person to obtain, seek to obtain, expend, or seek to expend, any financial assistance funds for any purpose other than in payment of or in reimbursement for the tuition costs for the attendance of his child or ward at a private school, parochial school or speech, hearing and/or language clinic. A violation of this section shall constitute a misdemeanor and, upon conviction thereof, shall be punishable by a fine not to exceed Five Hundred Dollars ($500.00), by imprisonment for not more than six (6) months in jail, or both.

SECTION 9. Section 37-23-77, Mississippi Code of 1972, is brought forward as follows:

37-23-77. In the event that a child, as defined in Sections 37-23-61 and 37-23-63, is under the legal guardianship of the State Department of Human Services, or any other state agency, and for whom no foster parents are available, funds available pursuant to Section 37-23-1 et seq. may be used to provide for the education of the child in an institution approved by the Department of Human Services and the State Department of Education. However, provided the educational services needed by the child are available in a state funded institution, these funds shall not be used to pay for educational services at that institution. At any such time a child is taken out of a school setting and placed under the custody of the Department of Human Services, the department shall immediately notify the State Department of Education and apply for funds for such child's educational services pursuant to Section 37-23-1 et seq. and the State Department of Education shall respond to such application within ten (10) working days. The special education and related services provided for this child shall be provided in compliance with State Department of Education regulations. The State Department of Education shall promulgate such regulations as are necessary to implement this section.

The State Department of Education shall require that the special education and related services provided for the children under this section 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 10. This act shall take effect and be in force from and after July 1, 2004.