Chapter 222 of the Acts of 2012 THOMAS J. NUTTALL, ESQ. SULLIVAN, NUTTALL & MACAVOY, P.C PLAIN STREET MARSHFIELD, MASSACHUSETTS (781)

Chapter 222 of the Acts of 2012 An Act Relative to Student Access to Educational Services and Exclusion from School  Signed into law by Governor Patrick in August  Effective July 1, 2014  Purpose of the law  Elimination of “Zero Tolerance” approaches to school disciplinary matters.  To establish uniform and consistent due process procedures for school discipline throughout the Commonwealth.  To ensure continued educational services for all students when subject to exclusion from school.  To encourage and facilitate monitoring of student absences and to prevent students from dropping out of school.

Chapter 222 of the Acts of 2012  3 Major Provisions  Discipline  Amends M.G.L. c. 71 by adding a new section 37H¾ establishing specific procedural requirements for all suspensions and exclusions for reasons other than those covered in section 37H (dangerous weapons, controlled substances, and assaults on education staff) and section 37H ½ (felony complaint);  Requires educational services to be provided to any student suspended or excluded for more than ten (10) consecutive school days.  Pupil Absences  Requires Districts to develop and implement a District-wide Pupil Absence Notification Program for the purpose of reducing student absences.  Drop-out-Prevention  Modifies M.G.L. c.76, §18 to expedite and formalize the process for responding to extended unauthorized absences from school.

Chapter 222 of the Acts of 2012: Discipline Provisions  Creates M.G.L. c.71, §37H3/4  Establishes due process requirements for students subject to exclusion from school for non 37H and 37H1/2 offenses.  Requires the same level of process due when excluding students under 37H and 37H1/2.  Allows for appeal to superintendent of any suspension resulting in 10 or more days of suspension in a school year.  Limits exclusion of any student pursuant to 37H3/4 for a school rules violation to ninety (90) school days.  Requires that districts notify DESE of all suspensions and exclusions of students.

Chapter 222 of the Acts of 2012 Services During Disciplinary Exclusion  Exclusion of 10 consecutive school days or less  Prior to the imposition of any suspension or exclusion (other than those suspensions under M.G.L. c. §§ 37H and 37H 1/2) must provide the student and parent or guardian notification of: 1. The charges; 2. The reasons for the potential suspension or exclusion; 3. The opportunity to meet with the principal or designee to discuss the charges; and 4. The reasons for the suspension or exclusion taking effect.  Must provide student with the opportunity to make academic progress during the period of exclusion.

Chapter 222 of the Acts of 2012 Services During Disciplinary Exclusion  Exclusion of less than 10 days…  The term “out-of-school suspension” shall mean:  “ a disciplinary action imposed by school officials to remove a student from participation in school activities for 1 day or more.”  Must provide student with the opportunity to make academic progress during the period of exclusion.  K-3  Prior to any out-of-school suspension taking effect, the principal or designee must notify the Superintendent in writing and include:  A description of the student’s alleged misconduct; and  The reasons for suspending the student out-of-school.

Chapter 222 of the Acts of 2012 Services During Disciplinary Exclusion  Exclusion of more than 10 consecutive school days  Must provide the student with educational services in order to make academic progress during the period of exclusion, to make up assignments and earn credits missed, including but not limited to homework, quizzes, exams, papers and projects.  School must provide the student and the parent or guardian with a list of alternative educational services.  Upon selection of an alternative educational service by the student and parent or guardian, the school must facilitate and verify enrollment in the service.  Examples: Tutoring, Night School, Alternative School, Online Learning. If the student moves to another school district during the period of exclusion, the new district shall either admit the student or provide educational services in an education service plan.

Funding Instructional costs shall include: 1) The salary of educational personnel; 2) Salary of related services personnel; 3) Costs of specialized books, materials or equipment; 4) Tuition costs; 5) Consultant costs; 6) Instructional costs of extended year programs. Instructional costs shall NOT include: 1. Transportation costs; 2. Administrative or overhead costs; 3. The costs of adapting classrooms or materials that are used by more than one student; 4. The costs of fringe benefits of personnel employed by the school district; and 5. The costs associated with development of the education service plan or service coordination for student. “Instructional costs” associated with providing alternative education services are “eligible” for reimbursement under the special education circuit breaker statute at M.G.L. c. 71B, § 5A. Such reimbursement is “subject to appropriation.”

Unfunded Mandate  State Auditor Suzanne Bump provided a non-binding opinion that if the law went into effect at the time of her writing (January 31, 2013) that the state would not provide a school district with additional funding for complying with the law until a per student cost exceeded $38,916.  November of 2013 – Massachusetts Department of Elementary and Secondary Education, Study of the Cost of Implementing the New Student Discipline Law  New Regulations – final vote will occur in the Spring of 2014  Estimated total annual cost of an instructional program meeting the laws requirements ranged from $32,103 to $300,131, depending on the program model.  This worked out to be an estimated $1,890 to $8,559 per pupil.  Keep in mind that this is the cost of one program while the law provides for a list of alternatives.  Program models (Fall River on campus tutoring program, Springfield’s external interim alternative education setting (IAES) program, and North Adam’s online learning program) ranged in intensity from a few hours per week to a full- day program and served different numbers of students.  The estimates include only costs for academic and instructional services.  The DESE study is available at:

Chapter 222 of the Acts of 2012 School Attendance  Pupil Absence Notification Program  Requires school districts to establish a “Pupil Absence Notification Program” to ensure that schools notify parents if their child is absent from school and the school has not received notification of such absence from the parent within 3 school days.  Each school district is also required to have a policy of notifying parents if their child has 5 or more unexcused absences in a year or if the child has missed 2 or more classes due to absence for 5 days or more.  The policy shall provide for the principal to make a reasonable effort to meet with the parents of a child who has 5 or more unexcused absences for the purposes of developing action steps to improve the student’s attendance.

M.G.L. c.76, §18 – Disenrollment  Current law:  An administrator from the school the student has last attended must send notice within a period of 10 school days from the students 15 th consecutive absence to the student and his or her parent.  Effective July 1, 2014  An administrator from the school the student has last attended will need to send notice within a period of 5 school days from the students 10 th consecutive absence to the student and his or her parent.

M.G.L. c.76, §18  The notice shall:  Offer at least 2 dates and times for an “exit interview” between the Superintendent or designee and the student and parent(s);  Include contact information for scheduling an “exit interview;”  Indicate that the parties must agree on a date and time for the “exit interview;”  That the interview shall occur within 10 school days after sending the notice;  That the interview date may be extended at the request of the parent, but not more than 14 days;  That the Superintendent or designee may proceed without the parent only if a good faith effort was made to secure their attendance; and  During the “exit interview,” the student must be given information about the detrimental effects of early withdrawal from school, the benefits of a high school diploma, and alternative programs and services available to the student.