§ 3 — Identification of school age children with a disability; diagnosis of disability; proposal of program; evaluations and assessments of child and program

Section 3. In accordance with the regulations, guidelines and directives of the department issued jointly with the departments of mental health, developmental services, public health, youth services, and the commission for the blind and the commission for the deaf and hard of hearing and with assistance of the department, the school committee of every city, town or school district shall identify the school age children residing therein who have a disability, as defined in section 2, diagnose and evaluate the needs of such children, propose a special education program to meet those needs, provide or arrange for the provision of such special education program, maintain a record of such identification, diagnosis, proposal and program actually provided and make such reports as the department may require. Until proven otherwise, every child shall be presumed to be appropriately assigned to a regular education program and presumed not to be a school age child with a disability or a school age child requiring special education.The department shall take all steps necessary to monitor and enforce compliance with this section no less than every three years, including but not limited to investigations, on-site visits and public hearings, and shall provide assistance in planning and implementing any necessary corrective actions to ensure that no school committee provides special education services to a child pursuant to this chapter unless an evaluation conducted pursuant to this section determines that the child has a disability, as defined in section 1. The department shall further take any and all steps necessary to monitor and enforce compliance with all other provisions of this chapter, including but not limited to the requirement that school committees educate children in the least restrictive environment, as defined in section 1. The department shall also ensure that teachers and administrators are fully informed about their responsibilities for implementing the provisions of this chapter and are provided with technical assistance and training necessary to assist them in such effort.No school committee shall refuse a school age child with a disability admission to or continued attendance in public school without the prior written approval of the department, and without complying with state and federal requirements for disciplining students with disabilities, where applicable. During the pendency of administrative or judicial proceedings, a court of competent jurisdiction shall have the authority to change a child's educational placement, including removing the child from school, in any circumstances when the school committee shows that the child's behavior poses a substantial likelihood of injury to himself or others; provided, however, that the foregoing shall not be construed to abrogate any authority concerning discipline for such a child which is available to a school committee under said regulations and procedures or any other law. No child who is so refused or removed shall be denied an alternative form of education approved by the department, as provided for in section 10, through a tutoring program at home, through enrollment in an institution operated by a state agency, or through any other program which is approved for the child by the department.No child shall be placed in a special education program without prior consultation, evaluation, reevaluation, and consent as set forth and implemented by regulations promulgated by the department. To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall, upon request by a parent, provide timely access to parents and parent-designated independent evaluators and educational consultants for observations of a child's current program and of any program proposed for the child, including both academic and non-academic components of any such program. Parents and their designees shall be afforded access of sufficient duration and extent to enable them to evaluate a child's performance in a current program and the ability of a proposed program to enable such child to make effective progress. School committees shall impose no conditions or restrictions on such observations except those necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation by a parent or a designee.Within five days after the referral of a child enrolled in a regular education program by a school official, parent or guardian, judicial officer, social worker, family physician, or person having custody of the child for purposes of determining whether such child requires special education, the school committee shall notify the parents or guardians of such child in writing in the primary language of the home of such referral, the evaluation procedure to be followed, and the child's right to an independent evaluation at clinics or facilities approved by the department under regulations adopted jointly by the department and the departments of mental health, developmental services and public health and the right to appeal from any evaluation, first to the department, and then to the courts; provided, however, that a school district shall not be required to refer a child for an evaluation solely because the child presents a risk of or fails to be promoted at the end of the school year; and provided further, that a school district shall not be required to refer a child for an evaluation solely because such child failed the statewide assessment tests authorized pursuant to section 1I of chapter 69.Within thirty days after said notification the school committee shall provide an evaluation as hereinafter defined. The parents or guardians of such child shall be consulted about the content of such evaluation and the evaluators being used. Said evaluation shall include an assessment of the child's current educational status by a representative of the local school department, an assessment by a classroom teacher who has dealt with the child in the classroom, a complete medical assessment by a physician, an assessment by a psychologist, an assessment by a nurse, social worker, or a guidance or adjustment counselor of the general home situation and pertinent family history factors; and assessments by such specialists as may be required in accordance with the diagnosis including when necessary, but not limited to an assessment by a neurologist, an audiologist, an ophthalmologist, a specialist competent in speech, language and perceptual factors and a psychiatrist. Whenever the evaluation of the Individualized Education Program team indicates that the child has a disability that affects social skills development or that the child is vulnerable to bullying, harassment or teasing because of the child's disability, the Individualized Education Program shall address the skills and proficiencies needed to avoid and respond to bullying, harassment or teasing. Whenever an evaluation indicates that a child is blind, as defined in section one hundred and thirty-six of chapter six, said evaluation shall also include an assessment of the appropriateness of Braille instruction for the child. Such assessment shall include (i) the child's efficiency in reading and writing print as compared with children who do not have a disability; (ii) the child's stamina in using print before fatigue occurs; (iii) the child's prognosis for further sight loss; and (iv) the child's present competence in Braille and a detailed explanation as to whether instruction is appropriate, conducted by a certified teacher of students with visual impairments. Any such instruction found to be essential to meet such child's disability shall be available at a frequency and duration sufficient to meet fully the educational needs of the child. Braille instruction may be used in combination with other special education services appropriate to the child's educational needs. Whenever an evaluation indicates that a child has a disability on the autism spectrum, which includes autistic disorder, Asperger's disorder, pervasive developmental disorder not otherwise specified, childhood disintegrative disorder, or Rhett's Syndrome, as defined in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association, the Individualized Education Program (IEP) team, as defined by regulations of the department, shall consider and shall specifically address the following: the verbal and nonverbal communication needs of the child; the need to develop social interaction skills and proficiencies; the skills and proficiencies needed to avoid and respond to bullying, harassment or teasing; the needs resulting from the child's unusual responses to sensory experiences; the needs resulting from resistance to environmental change or change in daily routines; the needs resulting from engagement in repetitive activities and stereotyped movements; the need for any positive behavioral interventions, strategies, and supports to address any behavioral difficulties resulting from autism spectrum disorder; and other needs resulting from the child's disability that impact progress in the general curriculum, including social and emotional development. A child's Individualized Education Program, as defined in 20 USC § 1401 (14), shall include a statement of measurable annual goals, including academic and functional goals, and a description of benchmarks or short-term objectives.The department jointly with the departments of mental health, developmental services and public health shall issue regulations to specify qualifications for persons assessing said child.These departments through their joint regulations may define circumstances under which the requirement of any or all of these assessments may be waived so long as an evaluation appropriate to the educational needs of the child is provided. Those persons assessing said child shall maintain a complete and specific record of diagnostic procedures attempted and their results, the conclusions reached, the suggested courses of special education best suited to the child's educational needs, and the specific benefits expected from such action. A suggested special education program may include family guidance or counseling services. When the suggested course of study is other than regular education those persons assessing said child shall present a method of monitoring the benefits of such special education and conditions that would indicate that the child should return to regular classes, and a comparison of expected outcomes in regular class placement.If a child with a disability requires special education and related services in accordance with the provisions of the federal Individuals with Disabilities Education Act of 1975, the provisions of this chapter, and federal and state regulations promulgated pursuant thereto, such services shall be made available.Upon completion of said evaluation, the child's parents may obtain an independent evaluation at school committee expense, from child evaluation clinics or facilities approved by the department jointly with the departments of mental health, mental retardation and public health, provided that the school committee may initiate within five school working days of the request, a hearing with the bureau of special education appeals to show that its evaluation is appropriate, in accordance with the provisions of the Individuals with Disabilities Education Act and regulations promulgated pursuant thereto; provided, however, that the parents may choose, on a voluntary basis, to share the costs of the independent evaluation with the school committee pursuant to a sliding fee scale established in regulations issued by the department pursuant to this section, in which case the school committee shall pay its share of the costs in accordance with the scale; provided, that, if the child's family income does not exceed 400 per cent of the federal poverty level established by the United States department of health and human services, parents shall pay no cost; provided, however, that the secretary of health and human services under section 13C of chapter 118E shall establish rates for educational assessments conducted or performed by psychologists and other trained certified educational personnel notwithstanding the provisions of any general or special law or rule or regulation to the contrary. A parent may obtain an independent evaluation at private expense from any specialist.The written record and clinical history from both the evaluation provided by the school committee and independent evaluation, if any, shall be made available to the parents, guardians, or persons with custody of the child. Separate instructions, limited to the information required for adequate care of the child, shall be distributed only to those persons directly concerned with the care of the child. Otherwise said records shall be confidential.The department may hold hearings through the bureau of special education appeals regarding said evaluation, said hearings to be held in accordance with the provisions of chapter thirty A. The parents, guardians, or persons with custody may refuse the education program suggested by the initial evaluation and request said hearing by the department into the evaluation of the child and the appropriate education program. The hearing officer shall order such educational placement and services as he deems appropriate and consistent with this chapter to assure the child receives a free and appropriate public education in the least restrictive environment; provided, however, that a presumption shall exist to direct such placement to the regular educational environment. The hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the department of children and families, the department of mental retardation, the department of mental health, the department of public health, or any other state agency or program, in addition to the program and related services to be provided by the school committee. Such order may provide for: the placement or services requested by the school committee, the placement or services requested by the parent, either of those placements or services with modifications, or such alternative programs or services as may be required to assure such development of such child. Said parents, guardians or persons with custody may either consent to or reject such placement, program or services. If rejected, and the program desired by the parents, guardian or person with custody is a regular education program, the department and the local school committee shall provide the child with the educational program chosen by the parent, guardian or persons with custody except where such placement would seriously endanger the health or safety of the child, substantially disrupt the program for other students or, if the child is currently placed in a special education program, deny the child a free appropriate public education. In such circumstances the local school committee may proceed to the superior court with jurisdiction over the residence of the child to make such showing. Said court upon such showing shall be authorized to place the child in an appropriate education program.At any time, school committees and parents, guardians, or persons with custody of a student may voluntarily agree to seek resolution of any dispute through mediation provided by the bureau of special education appeals, provided, that the mediation process may not be used to deny or delay a parent's right to a due process hearing or to delay or deny any other rights afforded under this chapter and the federal Individuals with Disabilities Education Act of 1975, as so amended and shall be scheduled as soon as practicable after such agreement.If the parents, guardians or persons with custody reject the educational placement recommended by the department and desire a program other than a regular education program, they may proceed to the superior court with jurisdiction over the residence of the child and said court shall be authorized to order the placement of the child in an appropriate education program.During the course of the evaluations, assessments, or hearings provided for above, a child shall be placed in a regular education program unless such placement endangers the health or safety of the child or substantially disrupts such education program for other children.No parent or guardian of any child placed in a special education program shall be required to perform duties not required of a parent or guardian of a child in a regular school program.The educational progress of any child placed in a special education program shall be reviewed at least annually as set forth above. If such evaluation suggests that the initial evaluation was in error or that a different program or medical treatment would now benefit the child more, appropriate reassignment or alteration in treatment shall be recommended to the parents, guardians or persons having custody of the child. If the evaluation of the special education program shows that said program does not provide educational benefit to the child in the least restrictive environment, then such child shall be reassigned. If the evaluation shows that the child no longer needs special education services, the team shall recommend that the child no longer be considered a school age child with disabilities for the purposes of this chapter.Evaluations and assessments of children and special education programs shall remain confidential and be used solely for the administration of special education in the commonwealth, including, but not limited to, inspection by the department and regional and state advisory councils to insure that every special education program does benefit the children there assigned.The school committee of any city, town, or school district shall establish a parent advisory council on special education. Membership shall be offered to all parents of children with disabilities and other interested parties. The parent advisory council duties shall include but not be limited to: advising the school committee on matters that pertain to the education and safety of students with disabilities; meeting regularly with school officials to participate in the planning, development, and evaluation of the school committee's special education programs. The parent advisory council shall establish by-laws regarding officers and operational procedures. In the course of its duties under this section, the parent advisory council shall receive assistance from the school committee without charge, upon reasonable notice, and subject to the availability of staff and resources.If a student's individual education plan necessitates special education services in a day or residential facility or an educational collaborative, the IEP team shall consider whether the child requires special education services and supports to promote the student's transition to placement in a less restrictive program. If the student requires such services, then the IEP shall include a statement of any special education services and supports necessary to promote the child's transition to placement in a less restrictive program.