FIRST REGULAR SESSION
[PERFECTED]
HOUSE COMMITTEE SUBSTITUTE FOR
93RD GENERAL ASSEMBLY
Reported from the Committee on Elementary and Secondary Education, March 10, 2005 with recommendation that House Committee Substitute for House Bill No. 276 Do Pass. Referred to the Committee on Rules pursuant to Rule 25(26)(f).
Reported from the Committee on Rules April 4, 2005 with recommendation that House Committee Substitute for House Bill No. 276 Do Pass with no time limit for debate.
Taken up for Perfection April 13, 2005. House Committee Substitute for House Bill No. 276 ordered Perfected and printed.STEPHEN S. DAVIS, Chief Clerk
AN ACT
To repeal sections 162.955, 162.959, and 162.961, RSMo, and to enact in lieu thereof three new sections relating to special educational services.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 162.955, 162.959, and 162.961, RSMo, are repealed and three new sections enacted in lieu thereof, to be known as sections 162.955, 162.959, and 162.961, to read as follows:
162.955. 1. Except as otherwise provided in this section, during the pendency of any administrative or judicial proceeding pursuant to sections 162.950, 162.961 and 162.963 no change in the assignment or status of a handicapped or severely handicapped child shall be made except that such change may be made with the written consent of the parent or guardian. If written consent cannot be obtained and the child is endangering himself or others, the assignment or status can be changed pursuant to court order, but without prejudice to any rights that the child and the parent or guardian may have pursuant to sections 162.670 to 162.999 or otherwise pursuant to law.
2. During the pendency of any administrative or judicial proceeding pursuant to sections 162.950, 162.961 and 162.963, to challenge a placement changed because of a disciplinary action to an interim alternative educational setting or to challenge the manifestation determination[, when the child is disciplined for weapons, drugs, or because the child is a danger to himself or others] in connection with a disciplinary change of placement, the child shall remain in the interim alternative educational setting pending the due process hearing or until expiration of the time period of the interim alternative educational setting, whichever first occurs, unless the parent and responsible public agency agree otherwise.
3. If during an interim alternative educational setting arranged because of a disciplinary action involving weapons, drugs, or serious bodily injury, or because the child is a danger to himself or others, the responsible educational agency proposes to change the child's placement after expiration of the interim placement, and the parents challenge the proposed change by requesting a due process hearing, the child shall remain in his current placement, which is the placement before the interim alternative educational setting, during pending proceedings to challenge the change. The responsible educational agency may request an expedited hearing pursuant to section 162.961, if it is believed it is dangerous for the child to remain in the current placement.
162.959. 1. As used in this section, "mediation" is the process by which a neutral mediator assists the parties in reaching a mutually acceptable voluntary and consensual agreement in the best interests of the child as to issues contained in the notice pursuant to section 162.945. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of common interest and finding points of agreement. An agreement reached by the parties shall be based on the decisions of the parties and not the decisions of the mediator. The agreement reached may resolve all or only some of the disputed issues.
2. Whenever a hearing has been requested pursuant to section 162.961, on any matter in dispute under section 162.961, and the dispute has not been finally resolved, the parties shall be offered an opportunity for mediation to resolve the dispute. Mediation shall also be made available to parties prior to the request for a hearing. Use of mediation shall be mutually agreed upon by both parties unless federal law provides to the contrary. The department of elementary and secondary education shall ensure that impartial mediation is provided at no cost to parents or guardians and the participating school district when requested pursuant to this section.
3. [No statements made by either party during the mediation pursuant to this section shall be offered or used as evidence in any hearing, review of hearing decision, or civil action.
4.] School districts may not use mediation to deny or delay the parents' right to a due-process hearing pursuant to section 162.961, or to deny the parents any other rights afforded pursuant to this chapter.
[5.] 4. Mediation conducted pursuant to this section shall be scheduled within fifteen days of selecting a mediator at a time and place mutually acceptable to all parties engaged in mediation.
[6.] 5. Mediation conducted pursuant to this section shall be completed within thirty days of agreement to mediate and may be terminated by either party at any time.
[7.] 6. Any mediation agreement reached pursuant to this section shall be in writing, signed by the parties, and delivered to all parties engaged in the mediation. The responsible public agency or its designee shall sign the agreement. The designee identified by the responsible public agency shall have the authority to bind the agency. A local board of education, as a responsible public agency, may identify a designee with authority to bind the school district. The written agreement is a legally binding agreement that sets forth the resolution and must state that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The agreement is enforceable in any state court of competent jurisdiction or in a district court of the United States.
[8.] 7. Mediators shall be selected by mutual agreement of the parents or guardians and the participating school district or responsible educational agency from a list maintained by the department of elementary and secondary education. Any mediator selected shall meet training, impartiality and assessment requirements pursuant to regulations promulgated by the department of elementary and secondary education [pursuant to section 536.034, RSMo].
[9.] 8. No attorney shall attend or participate on behalf of any party at the mediation session although the parent or guardian may be accompanied by a lay advocate. Each party may be accompanied by no more than three persons, with additional participants allowed only by mutual agreement.
[10. The representative of the participating school district or responsible educational agency shall have authority to reach an agreement on behalf of the school district.]
162.961. 1. The resolution conference provided for in section 162.950 shall be conducted by the chief administrative officer of the responsible school district or a designee. The conference shall be informal, witnesses need not be sworn and a record of the proceedings need not be made. The school district or the state department of elementary and secondary education shall see that the parent or guardian or his representative is advised of and permitted to review all diagnoses, evaluations and reevaluations obtained by the board of education or the state department of elementary and secondary education which pertain to the child. The school district or state department of elementary and secondary education shall fully advise the parents or guardian or their representative of each reason relied upon by it in taking the proposed action. The parents or guardian or their representative may present any information whether written or oral to the officer which pertains to the recommended action. Questioning of all witnesses shall be permitted.
2. The resolution conference may be waived by the parents or guardian. If the parent or guardian waives the resolution conference and requests a three-member panel hearing, the state board of education shall empower such a panel pursuant to subsection 3 of this section. That empowerment shall take place within fifteen days of the request for the three-member panel hearing.
3. A parent, guardian or the responsible educational agency may request a due process hearing by the state board of education with respect to any matter relating to identification, evaluation, educational placement, or the provision of a free appropriate public education of the child. Such request shall include the child's name, address, school, issue, and suggested resolution of dispute if known. Except as provided in subsection 6 of this section, the board or its delegated representative shall within fifteen days after receiving notice empower a hearing panel of three persons who are not directly connected with the original decision and who are not employees of the board to which the appeal has been made. All of the panel members shall have some knowledge or training involving children with disabilities, none shall have a personal or professional interest which would conflict with his or her objectivity in the hearing, and all shall meet the department of elementary and secondary education's training and assessment requirements pursuant to state regulations and federal law and regulation requirements of the Individuals With Disabilities Education Act. One person shall be chosen by the local school district board or its delegated representative or the responsible educational agency, and one person shall be chosen at the recommendation of the parent or guardian. If either party has not chosen a panel member ten days after the receipt by the department of elementary and secondary education of the request for a due process hearing, such panel member shall be chosen instead by the department of elementary and secondary education. Each of these two panel members shall be compensated pursuant to a rate set by the department of elementary and secondary education. The third person shall be appointed by the state board of education and shall serve as the chairperson of the panel. The chairperson shall be an attorney licensed to practice law in this state. During the pendency of any three-member panel hearing, or prior to the empowerment of the panel, the parties may, by mutual agreement, submit their dispute to a mediator pursuant to section 162.959.
4. The parent or guardian, school official, and other persons affected by the action in question shall present to the hearing panel all pertinent evidence relative to the matter under appeal. All rights and privileges as described in section 162.963 shall be permitted.
5. After review of all evidence presented and a proper deliberation, the hearing panel, within forty-five days of receipt of the request for a due process hearing, except as provided in subsection 6 of this section relating to expedited hearings, shall by majority vote determine its findings, conclusions, and decision in the matter in question and forward the written decision to the parents or guardian of the child and to the president of the appropriate local board of education or responsible educational agency and to the department of elementary and secondary education. A specific extension of the time line may be made by the chairman at the request of either party, except in the case of an expedited hearing as provided in subsection 6 of this section.
6. An expedited due process hearing by the state board of education may be requested by a parent to challenge a disciplinary change of placement or to challenge a manifestation determination in connection with a disciplinary change of placement or by a responsible educational agency to seek a forty-five school day alternative educational placement for a dangerous or violent student. The board or its delegated representative shall appoint a hearing officer to hear the case and render a decision within the time line required by federal law and state regulations implementing federal law. The hearing officer shall be an attorney licensed to practice law in this state. The hearing officer shall have some knowledge or training involving children with disabilities, shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall meet the department of elementary and secondary education's training and assessment requirements pursuant to state regulations and federal law and regulation requirements of the Individuals With Disabilities Education Act. A specific extension of the time line is only permissible to the extent consistent with federal law and pursuant to state regulations.
7. If the responsible public agency requests a due process hearing to seek a forty-five school day alternative educational placement for a dangerous or violent student, the agency shall show by substantial evidence that there is a substantial likelihood the student will injure himself or others and that the agency made reasonable efforts to minimize that risk, and shall show that the forty-five school day alternative educational placement will provide a free appropriate public education which includes services and modifications to address the behavior so that it does not reoccur, and continue to allow progress in the general education curriculum.
8. Any due process hearing request and responses to the request shall conform to the requirements of the Individuals With Disabilities Education Act (IDEA). Determination of the sufficiency shall be made by the chairperson of the three-member hearing panel, or in the case of an expedited due process hearing, by the hearing officer. The chairperson or hearing officer shall implement the process and procedures, including timelines, required by the IDEA, related to sufficiency of notice, response to notice, determination of sufficiency dispute, and amendments of the notice.
9. A preliminary meeting, known as a resolution session, shall be convened by the responsible public agency, under the requirements of the IDEA. The process and procedures required by the IDEA in connection to the resolution session and any resulting written settlement agreement shall be implemented.