§ 30A — Developmentally disabled residents; waiver of requirements; guidelines to select students to participate in higher education; associated costs; behavioral policies; liability; duty of care; annual report

Section 30A. (a) In order to ensure that individuals with severe intellectual disabilities, severe autism spectrum disorders or other severe developmental disabilities participate as non-matriculated students in undergraduate academic courses, internships, work-based trainings, extracurricular activities and all other aspects of campus life that include other students not participating under this section, such individuals shall not be required to: (i) take any standardized college entrance aptitude test; (ii) have a high school diploma or its equivalent; (iii) meet high school course requirements; (iv) meet minimum grade point average requirements; or (v) obtain a passing score on the statewide assessment tests utilized as a basis for competency determination under section 1D of chapter 69; provided, however, that such individuals shall be eligible to participate in noncredit and credit-bearing courses in audit status in situations where such individuals do not meet course prerequisites and requirements.[ Subsection (b) effective until September 12, 2024. For text effective September 12, 2024, see below.](b) Public institutions of higher education, in consultation with the department of higher education, and consistent with the purposes of this section, shall establish guidelines to select students to participate in higher education pursuant to this section, including, but not limited to, guidelines addressing campus capacity regarding the number of students that may participate; provided further, that public institutions of higher education may establish guidelines that limit selection of students to individuals receiving support to participate pursuant to this section from the department of developmental services, the Massachusetts rehabilitation commission, other state agencies, or the individual's school district. An individual shall not be denied an opportunity to participate in higher education solely due to the individual's disability status. Public institutions of higher education, in consultation with the department of higher education and consistent with the purposes of this section, shall also establish course selection guidelines to ensure that participating individuals select courses that are appropriate to their individual strengths, needs, preferences and interests. Participating individuals shall be permitted to: (i) take a credit-bearing undergraduate academic course for credit if they have met the course prerequisites and requirements; or (ii) audit a credit-bearing undergraduate academic course, consistent with campus policies governing selection of students for audit participation, if they have not met the course prerequisites and requirements. Individuals participating in a public institution of higher education pursuant to this section shall have the opportunity to participate for the same number of semesters as the average number of semesters required of matriculating students to earn a degree at the institution; provided, however, that any public institution of higher education may allow an individual to participate for a longer duration to address the circumstances and needs of the individual. Nothing in this section shall require a public institution of higher education to provide course enrollment or audit preference for individuals with severe intellectual disabilities, severe autism spectrum disorders or other severe developmental disabilities relative to other individuals seeking to enroll in or audit a course. Nothing in this section shall require a public institution of higher education to include individuals with severe intellectual disabilities, severe autism spectrum disorders or other severe developmental disabilities in graduate programs and courses, programs and courses with selective admission or continuing education courses.[ Subsection (b) as amended by 2024, 205, Sec. 43 effective September 12, 2024. For text effective until September 12, 2024, see above.](b) Public institutions of higher education, in consultation with the department of higher education, and consistent with the purposes of this section, shall establish guidelines to select students to participate in higher education pursuant to this section, including, but not limited to, guidelines addressing campus capacity regarding the number of students that may participate; provided further, that public institutions of higher education may establish guidelines that limit selection of students to individuals receiving support to participate pursuant to this section from the department of developmental services, MassAbility, other state agencies, or the individual's school district. An individual shall not be denied an opportunity to participate in higher education solely due to the individual's disability status. Public institutions of higher education, in consultation with the department of higher education and consistent with the purposes of this section, shall also establish course selection guidelines to ensure that participating individuals select courses that are appropriate to their individual strengths, needs, preferences and interests. Participating individuals shall be permitted to: (i) take a credit-bearing undergraduate academic course for credit if they have met the course prerequisites and requirements; or (ii) audit a credit-bearing undergraduate academic course, consistent with campus policies governing selection of students for audit participation, if they have not met the course prerequisites and requirements. Individuals participating in a public institution of higher education pursuant to this section shall have the opportunity to participate for the same number of semesters as the average number of semesters required of matriculating students to earn a degree at the institution; provided, however, that any public institution of higher education may allow an individual to participate for a longer duration to address the circumstances and needs of the individual. Nothing in this section shall require a public institution of higher education to provide course enrollment or audit preference for individuals with severe intellectual disabilities, severe autism spectrum disorders or other severe developmental disabilities relative to other individuals seeking to enroll in or audit a course. Nothing in this section shall require a public institution of higher education to include individuals with severe intellectual disabilities, severe autism spectrum disorders or other severe developmental disabilities in graduate programs and courses, programs and courses with selective admission or continuing education courses.[ Subsection (c) effective until September 12, 2024. For text effective September 12, 2024, see below.](c) In order to support inclusion of participating students in academic courses, extracurricular activities and other aspects of campus life, individual supports and services shall be provided to individuals participating in higher education pursuant to this section, subject to availability of sufficient public or private funds, including, but not limited to, the Massachusetts Inclusive Concurrent Enrollment Initiative Trust Fund established pursuant to section 2VVVVV of chapter 29; provided, however, that a public institution of higher education shall not be required to bear the costs of individual supports and services that exceed the kind of supports and services generally provided by the public institution of higher education; provided further, that public institutions of higher education may limit selection and participation to individuals receiving supports and services from the department of developmental services, the Massachusetts rehabilitation commission, other state agencies, or the individual's school district pursuant to this section. Costs associated with supporting participation in public institutions of higher education under this section shall be: (i) an approved expense as a special education service pursuant to section 5 of chapter 71B and shall be considered secondary school education; provided, however, that a student's participation in higher education is addressed in the student's Individualized Education Program under section 3 of said chapter 71B for students ages 18 to 21 years old, inclusive; provided further, that such student is considered to have a severe intellectual disability, a severe autism spectrum disorder or other severe developmental disability; provided further, that in the case of students who are age 18 or 19, participation shall be limited to students who have been unable to obtain a passing score on the statewide assessment tests utilized as a basis for competency determination under section 1D of chapter 69; provided further, that in the case of students ages 20 or 21, participation shall be limited to students who have been unable to obtain a passing score on the statewide assessment tests utilized as a basis for competency determinations under said section 1D of said chapter 69 or who have already been determined eligible for special education and have also been determined by the Individualized Education Program team to have severe functional delays impacting independent living, communication or behavioral skills resulting in skills that are significantly below chronological age; and provided further, that nothing in this section shall impose an additional cost on a school committee beyond the cost of what is required under said chapter 71B or 20 U.S.C. 1400 et seq.; (ii) subject to the availability of federal funding and appropriation provided under section 74 of chapter 6 for individuals who are determined eligible for vocational rehabilitation services; provided, however, that access to higher education assists in the attainment of an identified employment goal, as determined by the Massachusetts rehabilitation commission, consistent with all applicable regulations and subject to the development of an individualized plan for employment; or (iii) subject to appropriation, for individuals 22 years of age or older who are determined eligible for services under chapter 19B; provided, however, that the individual supports and services are determined to be an appropriate support, of the type, frequency and duration identified in an assessment conducted by the department of developmental services, and subject to the development of an annual individual support plan; provided further, that services and supports shall be provided in consultation with a school district, department of developmental services, Massachusetts rehabilitation commission, or other public agencies if such agencies are supporting the individual participating in the program. Costs of participation may be covered by any other public or private sources available to the student; provided, however, that selection of individuals participating in higher education pursuant to this section shall not be based solely on whether payment sources are public or private. The planning, implementation, coordination, staffing, administrative and other related costs to support participation shall be covered by the Massachusetts Inclusive Concurrent Enrollment Initiative Trust Fund established pursuant to section 2VVVVV of chapter 29 or the grant program established pursuant to section 17 of chapter 71B or other public or private funding sources.[ Subsection (c) as amended by 2024, 205, Secs. 43 and 44 effective September 12, 2024. For text effective until September 12, 2024, see above.](c) In order to support inclusion of participating students in academic courses, extracurricular activities and other aspects of campus life, individual supports and services shall be provided to individuals participating in higher education pursuant to this section, subject to availability of sufficient public or private funds, including, but not limited to, the Massachusetts Inclusive Concurrent Enrollment Initiative Trust Fund established pursuant to section 2VVVVV of chapter 29; provided, however, that a public institution of higher education shall not be required to bear the costs of individual supports and services that exceed the kind of supports and services generally provided by the public institution of higher education; provided further, that public institutions of higher education may limit selection and participation to individuals receiving supports and services from the department of developmental services, MassAbility, other state agencies, or the individual's school district pursuant to this section. Costs associated with supporting participation in public institutions of higher education under this section shall be: (i) an approved expense as a special education service pursuant to section 5 of chapter 71B and shall be considered secondary school education; provided, however, that a student's participation in higher education is addressed in the student's Individualized Education Program under section 3 of said chapter 71B for students ages 18 to 21 years old, inclusive; provided further, that such student is considered to have a severe intellectual disability, a severe autism spectrum disorder or other severe developmental disability; provided further, that in the case of students who are age 18 or 19, participation shall be limited to students who have been unable to obtain a passing score on the statewide assessment tests utilized as a basis for competency determination under section 1D of chapter 69; provided further, that in the case of students ages 20 or 21, participation shall be limited to students who have been unable to obtain a passing score on the statewide assessment tests utilized as a basis for competency determinations under said section 1D of said chapter 69 or who have already been determined eligible for special education and have also been determined by the Individualized Education Program team to have severe functional delays impacting independent living, communication or behavioral skills resulting in skills that are significantly below chronological age; and provided further, that nothing in this section shall impose an additional cost on a school committee beyond the cost of what is required under said chapter 71B or 20 U.S.C. 1400 et seq.; (ii) subject to the availability of federal funding and appropriation provided under section 74 of chapter 6 for individuals who are determined eligible for vocational rehabilitation services; provided, however, that access to higher education assists in the attainment of an identified employment goal, as determined by MassAbility, consistent with all applicable regulations and subject to the development of an individualized plan for employment; or (iii) subject to appropriation, for individuals 22 years of age or older who are determined eligible for services under chapter 19B; provided, however, that the individual supports and services are determined to be an appropriate support, of the type, frequency and duration identified in an assessment conducted by the department of developmental services, and subject to the development of an annual individual support plan; provided further, that services and supports shall be provided in consultation with a school district, department of developmental services, MassAbility, or other public agencies if such agencies are supporting the individual participating in the program. Costs of participation may be covered by any other public or private sources available to the student; provided, however, that selection of individuals participating in higher education pursuant to this section shall not be based solely on whether payment sources are public or private. The planning, implementation, coordination, staffing, administrative and other related costs to support participation shall be covered by the Massachusetts Inclusive Concurrent Enrollment Initiative Trust Fund established pursuant to section 2VVVVV of chapter 29 or the grant program established pursuant to section 17 of chapter 71B or other public or private funding sources.(d) Individuals participating under this section shall be required to follow the public institution of higher education's student behavioral policies, including the student code of conduct and anti-discrimination and sexual violence policies; provided, however, that the public institution of higher education shall provide such policies in accessible formats and shall provide reasonable accommodations for participating individuals in any process instituted thereunder.(e) Nothing in this section shall impose any liability against any school district or any public institution of higher education, including trustees, officers, administrators or employees of the school district or public institution of higher education.(f) Nothing in this section shall create or impose a specific duty of care nor shall this section create or impose a private right of action against any school district or any public institution of higher education, including trustees, officers, administrators or employees of a school district or public institution of higher education.[ Subsection (g) effective until September 12, 2024. For text effective September 12, 2024, see below.](g) Annually, not later than September 1, each institution of higher education shall file a report with the department of higher education, the joint committee on higher education, the joint committee on education, the senate and house committees on ways and means and the clerks of the senate and the house of representatives regarding participation of individuals with severe intellectual disabilities, severe autism spectrum disorder, and other severe developmental disabilities pursuant to this section. The report shall include, but not be limited to: (i) data detailing the number of students participating pursuant to this section each semester, including, but not limited to gender, race and ethnicity of the students; (ii) a list of all courses taken by participating students during the academic year, indicating whether the students audited the course or participated in the course for credit; (iii) a list of extracurricular activities, internships, clubs and other activities in which such students participate during the academic year; (iv) a summary of innovative strategies and practices implemented at each institution of higher education that foster relationships with school districts, the department of developmental services, the Massachusetts rehabilitation commission and other public agencies; (v) employment data for students participating pursuant to this section obtained to the best of the ability of institutions of higher education; and (vi) any relevant information regarding successful outcomes or challenges the institution experienced in the academic year. The department shall review the reports and shall take steps necessary to ensure the institution is including individuals pursuant to this section. The reports may be used to enhance constructive conversations between the department and institutions of higher education that contribute to developing a full understanding of best practices in implementing this section. The department may also choose to refer any report to the secretary of education for further analysis in order to further improve implementation of this section.[ Subsection (g) as amended by 2024, 205, Sec. 43 effective September 12, 2024. For text effective until September 12, 2024, see above.](g) Annually, not later than September 1, each institution of higher education shall file a report with the department of higher education, the joint committee on higher education, the joint committee on education, the senate and house committees on ways and means and the clerks of the senate and the house of representatives regarding participation of individuals with severe intellectual disabilities, severe autism spectrum disorder, and other severe developmental disabilities pursuant to this section. The report shall include, but not be limited to: (i) data detailing the number of students participating pursuant to this section each semester, including, but not limited to gender, race and ethnicity of the students; (ii) a list of all courses taken by participating students during the academic year, indicating whether the students audited the course or participated in the course for credit; (iii) a list of extracurricular activities, internships, clubs and other activities in which such students participate during the academic year; (iv) a summary of innovative strategies and practices implemented at each institution of higher education that foster relationships with school districts, the department of developmental services, MassAbility and other public agencies; (v) employment data for students participating pursuant to this section obtained to the best of the ability of institutions of higher education; and (vi) any relevant information regarding successful outcomes or challenges the institution experienced in the academic year. The department shall review the reports and shall take steps necessary to ensure the institution is including individuals pursuant to this section. The reports may be used to enhance constructive conversations between the department and institutions of higher education that contribute to developing a full understanding of best practices in implementing this section. The department may also choose to refer any report to the secretary of education for further analysis in order to further improve implementation of this section.