§ 10 — Referral of children to institutions within or without the commonwealth on annual renewal basis upon request; requisites; expenses and cost

Section 10. The department may, on an annual renewal basis, upon the request of the parents or guardians and the recommendations of a local school committee refer children requiring special education to any institution within or without the commonwealth which offers curriculum, instruction and facilities which are appropriate to the child's disability and which are approved by the department under regulations prescribed by the departments of education, mental health, developmental services and public health. The curriculum at such an institution shall for approval be equivalent, insofar as the department deems feasible, to the curriculum for children of comparable age and ability in the public schools of the commonwealth. Notwithstanding the foregoing, the department shall give preference to programs that are offered within the child's school district and if no such program is available, to programs offered within the commonwealth. Placement in another state shall be made only when no public or private facility which can provide the services in the student's individualized education plan, consistent with requirements of state and federal law, is available in the commonwealth; but no child in an out of state placement as of June 1, 2000 shall be required to transfer to a facility located within the commonwealth unless the transfer is in accordance with the child's individualized education plan and is not based solely upon this section.Before acting on said request, the department shall determine the nature and extent of a child's disability, and shall require the local school committee to prepare and submit plans detailing the time needed to establish facilities adequate for children with a disability in the city, town or school district where the child resides, and shall ascertain whether adequate facilities and instruction programs are available or when adequate facilities can be made available in the city, town or school district where the child with a disability resides. Until adequate facilities can be made available, such child shall be placed in the most adequate program available as determined by the department. The department shall further define by regulation the circumstances in which it shall be directly responsible for the placement of children in such special education programs, and by standards available to the public determine the methods and order of such placements; provided, however, that no child shall be denied access to any program operated by the department of mental health, developmental services, public health or children and families to which in the judgment of the operating department the child should be admitted.The expenses of the instruction and support actually rendered or furnished to such children with disabilities, including their necessary traveling expenses, whether daily or otherwise, but not exceeding ordinary and reasonable compensation therefor, may be paid by the commonwealth; but the department shall issue regulations jointly with the departments of mental health, developmental services, public health, youth services and children and families defining the circumstances in which the commonwealth shall bear all or part of such cost, the circumstances in which school committees shall be required to bear part or all of such cost, and the circumstances in which a parent or guardian may be required to reimburse the commonwealth for part or all of such cost; provided, however, that in no event shall the cost to the school committee for placement under this section be less than the average per pupil cost for pupils of comparable age within the city, town or school district; and provided, further, that in determining the cost to the parent or guardian, if any, no charge shall be made for any educational cost but only for support and care. In determining the cost to the parent or guardian the department shall apply criteria which take into account relative ability to pay.The department shall direct and supervise the education of all such children, and the commissioner of education shall state in his annual report their number, the cost of their instruction and support, the manner in which the money appropriated therefor has been expended, to what extent reimbursed and such other information as he deems important.The board of education shall not limit the rights of a school district to conduct unannounced visits to any private school in which the district has placed any students pursuant to this chapter.Nothing contained herein shall affect the continued authority of the departments of mental health, developmental services and public health over all non-educational programs and all treatment for residents or patients in institutions under their control.