Chap. 766. Chap. 766. An. Act further regulating programs for children REQUIRING SPECIAL EDUCATION AND PROVIDING REIMBURSEMENT THEREFOR. . , ' Be it enacted, etc., as follows: Section 1. The General Court finds that past development of special education programs has resulted in a great variation of services to children with special needs with some children having a greater educational opportunity than others in less favored categories or environments. The General Court further finds that past methods of labeling and defining the needs of children have had a stigmatizing effect and have caused special education programs to be overly narrow and rigid, both in their content and their inclusion and exclusion policies. In the light of the policy of the commonwealth to provide an adequate, publicly supported' education to every child resident therein, it is the purpose of this act to provide for a flexible and uniform system of special education program opportunities for all children requiring special education; to provide a flexible and non-discriminatory system for identifying and evaluating the individual needs of children requiring special education; requiring evaluation of the needs of the child and adequacy of the special education program before placement and periodic evaluation of the benefit of the program to the child and the nature of the child's needs thereafter; and to prevent denials of equal educational opportunity on the basis of national origin, sex, economic status, race, religion, and physical or mental handicap in the provision of differential education services. This act is designed to remedy past inadequacies and inequities by defining the needs of children requiring special education in a broad and flexible manner, leaving it to state agencies to provide more detailed definitions which recognize that such children have a variety of characteristics and needs, all of which must be considered if the educational potential of each child is to be realized; by providing the opportunity for a full range of special education programs for children requiring special education; by requiring that a program which holds out the promise of being special actually benefits children assigned thereto; and by replacing the present inadequate and anti-equalizing formula for distribution of state aid for special education programs with an equalizing one which encourages cities, towns and regional school districts to develop adequate special education programs within a reasonable period of time. Recognizing that professional services and resources must be made available to cities, towns and regional school districts on a regional basis if this act is to be implemented successfully, and within a reasonable period of time, this act strengthens and regionalizes the division of special education' in the department of education and provides for and urges meaningful cooperation among agencies concerned with children with special needs. Recognizing, finally, that present inadequacies and inequities in the provision of special education services to children with special needs have resulted largely from a lack of significant parent and lay involvement in overseeing, evaluating and operating special education programs, this act is designed to build such involvement through the creation of regional and state advisory committees with significant powers and by specifying an accountable procedure for evaluating each child's special Acts, 1972.—Chap. 766. 693 needs thoroughly before placement in a program and periodically thereafter. • ¦ ' Section 2. Chapter 15 of the General Laws is hereby amended by adding after section 1L the following five sections: — Section 1M. The powers and duties of the division of special education, established by section one F, shall include the following: (1) to regulate, consult with and assist school committees in the identification, classification, referral and placement of children requiring special education; (2) to regulate all aspects of, and assist with, the development of all special education programs supported in whole or in part by the commonwealth; (3) to coordinate the expertise of professionals from appropriate disciplines, both within and outside of the department and to be the coordinating agency for all state agencies providing educational assessment services and educational services to children requiring special education; (4) to compile data on, and to require all public schools' and agencies and any private schools or agencies receiving any funds from the commonwealth to provide information relating to, all. children ' requiring special education who reside in the commonwealth and on all available special education programs supported in whole or in part by the commonwealth; (5) to periodically review and analyze said data in order to evaluate said programs and to disseminate statistical data to any citizen or agency within the commonwealth upon request; provided, however, that records pertaining to individuals shall be kept confidential; (6) to develop public information programs regarding the nature and extent of special educational needs of children residing in the commonwealth and the availability of special education programs to meet those needs; (7) to develop and recommend to the board of education certification standards for educational personnel employed in special education programs and regulations to encourage greater use of ancillary personnel; (8) to cooperate with and assist public and private colleges and universities within the commonwealth in developing courses and programs best designed to prepare graduates to serve the educational requirements of children requiring special education; (9) to receive and investigate complaints and to conduct public and executive hearings with power of subpoena on behalf of an individual child or group of children receiving or requiring special education regarding any aspect of any special educational programs and to initiate its own investigation without a complaint; (10) to receive and allocate federal and state funds for programs for children requiring special education, subject to the priorities established by this section and chapter seventy-one B and such other additional priorities as may be established pursuant to section one P by the board of education; (11) to recommend to the board of education such rules, regulations and guidelines and to issue such directives as are necessary to carry out the purposes of sections' one N to one Q, inclusive, and to execute other provisions of law relative to the administration of educational programs for children requiring or receiving special education; (12) to provide for the maximum practicable involvement of parents of children in special education programs in the planning, development, and evaluation of special education programs in the districts serving their children; (13) to approve the purchase, lease and maintenance of all special equipment for the instruction outside of the classroom of handicapped children for whom attendance in public school is not feasible and to regulate the conditions under which 694 Acts, 1972.—Chap. 766. such a child may be considered so handicapped; (14) to investigate into and hold hearings upon prima facie denials of equal educational opportunities by reason of national origin, sex, economic status, race, religion, or physical or mental handicap of school aged children requiring special ' education as defined in section one of said chapter seventy-one B and thereafter issue such declaratory and injunctive orders as may be necessary to cure any actual denials of equal educational opportunities by reason of national origin, sex, economic status, race, religion, and physical or mental handicap of school aged children requiring special education; (15) to require public or private schools and educational agencies receiving any funds from the commonwealth to establish cost accounting and reporting procedures, forms, schedules, rates and audits in conformity with department standards; and to make reports to the department at such times, in such fashion and on such forms as the department may require; (16) to conduct or contract with any federal, state or private agency for the conduct of research and development projects designed to improve the quality of special education programs or increase the efficiency of such programs; (17) in the event of funding shortages, to allocate resources proportionately; (18) to provide for placement of children requiring special education into public schools or agency programs near their place of residence and to allow other placements in the event that suitable public programs or services can not be provided; (19) to take all steps, including but not limited to public hearings and investigations necessary to insure that state and local expenditures for special education provide the maximum. feasible benefit to every child receiving or requiring special education; (20) to develop and recommend any appropriate parent or guardian counseling or educational programs which are deemed necessary for the educational development of a child with special needs; (21) to recommend to the board that it withhold funds for special education programs from cities, towns or school districts, private schools or agencies which do not comply with regulations or statutes related to special education programs or do not carry out plans for such compliance within a reasonable period of time provided; however, that nothing contained in this clause shall be construed to prevent the board from withholding state and federal funds to the extent it deems necessary as provided in section one G. Section IN. There shall be in the division of special education a sufficient number of bureaus to enable it to carry out its powers and duties under section one M, and the board of education, upon the recommendation of the commissioner of education and the associate commissioner for special education, shall appoint a director with experience in the education of children with special needs for each bureau. One bureau shall be responsible for holding hearings and conducting investigations pursuant to clauses (8), (13) and (18) of section one M, section one P and section three of chapter seventy^one B. . Section 10. There shall be established in each of the department of education regional offices a regional branch of the division of special education. Each regional branch shall be headed by a director with experience in the education of children with special needs and who shall be appointed by the board of education upon the recommendations of the commissioner of education and the associate commissioner for special education. Said regional branch shall have the following functions: (1) to consult with and assist school committees in imple- Acts, 1972.—Chap. 766. 695 menting the regulations, guidelines and directives of the department in the area of special education; (2) to directly assist school committees in identifying, diagnosing and evaluating children with special needs and in developing special education programs to meet their individual educational needs; (3) to approve all special education placements by school. committees of children with special needs; (4) to assist and encourage the formation of joint agreements between two or more school committees for the provision of special education pursuant to section four of chapter seventy-one B; (5) to investigate and evaluate any special education program at the request of the department or on its own initiative; (6) to maintain a list and inform school committees of professional personnel within and without the region qualified to assess children with special needs pursuant to the provisions of section three of said chapter seventy-one B and to make such information available upon request to v parents, guardians or persons with custody of such children; (7) to have such other responsibilities as may be delegated to it by the department. . 'Section IP. There shall be established in each region a special edu- , cation advisory council, hereinafter called the advisory council, consisting of at least sixteen members, appointed by the department in consultation with the director of said regional branch. At least eight of the members of an advisory council shall be parents who reside in the region, and whose children are enrolled in a special education program; provided, however, that no more than two parents on each such advisory council shall be parents of children who are not in public school day programs. ' . Each member shall be appointed for a term of three years. No member may be appointed for more than two consecutive terms. Each.advisory council shall advise the regional branch regarding all aspects of special education programs within the region and shall submit a written report annually on the quality and adequacy of such programs to the state advisory commission established under section one Q. In addition to its other, powers and duties, the advisory council shall hear and transmit to said state advisory commission, complaints and suggestions of persons interested in special education in the region. Members of each advisory council shall be granted, access to special education programs and to information about such programs, subject to restrictions established by the board of education regarding confidentiality, and shall be assisted in carrying out their duties by the regional branch of the division of special education. Members of -the advisory councils shall be reimbursed by the commonwealth for expenses necessarily in-' curred in the performance of their duties. Section lQ. There shall be established in the department a state advisory commission for special education, hereinafter called the commission. Each special education advisory council established pursuant to section one P shall elect two representatives to the commission, at least one of whom shall be a parent or guardian whose child is receiving special education. The commissioners of the departments of mental health, public health and public welfare shall each appoint a representative to serve as ex officio members of the commission. Members of the commission shall be reimbursed for expenses which are necessarily incurred in the per- 696 Acts, 1972. — Chap. 766. formance of their duties. The commission shall annually submit a report to the department evaluating the quality and adequacy of special education programs in the commonwealth and recommending improvements in those programs. The department shall implement the recommendations of the commission or shall, state in a written reply to said commission the reasons why such recommendations can not or should not be implemented. In such circumstances, the bureau responsible for hearing complaints and conducting investigations in the division of special education pursuant to section one N shall attempt to resolve 'the disagreement informally; provided, however, if a settlement cannot be reached the state board of education shall conduct public hearings to investigate the bases for the disagreement and resolve any dispute between the department and the commission. Section 3. The second sentence of section 35 of chapter 41 of the General Laws, as appearing in section 2 of chapter 143 of the acts of 1937, is hereby amended by inserting after the word "officers",.in line 3, the following words:— ; provided, however, reimbursements made to a city or town under section thirteen of chapter seventy-one B shall be made to the school committees of such cities and towns and shall.be used for special education programs pursuant to said chapter seventy-one B without further appropriation. Section 4. Section 53 of chapter 44 of the General Laws is hereby amended by striking out the first sentence and inserting in place thereof the following sentence: — All moneys received by any city, town or district officer or department, except as otherwise provided by section thirteen of chapter seventy-one B and by special acts and except fees provided for by Statute, shall be paid by such officers or department upon their receipt into the city, town or district treasury. - Section 5. Subsection (6) of section 18A of chapter 58 of the General Laws is hereby amended by striking out paragraph (3), as most recently amended by section 3 of chapter 1005 of the acts of 1971, and inserting in place thereof the following paragraph: — (3) On or before November twentieth, the reimbursement for the special education programs required to be paid by the commonwealth under chapters seventy-one A and seventy-one B. Section 6. The third sentence of the second paragraph of section 7C of chapter 69 of the General Laws, as appearing in section 2 of chapter 403 of the acts of 1960, is hereby amended by striking out the words "of the mentally retarded", in line 5. , Section 7. The third sentence of the second paragraph of section 7D of said chapter 69, as appearing in chapter 702 of the acts of 1963, is hereby amended by striking out the words "of the mentally retarded", in line 4. Section 8. Sections twenty-six to twenty-nine E, inclusive, and sections thirty-two to thirty-four, inclusive, of said chapter sixty-nine are hereby repealed. Section 9. Paragraph (c) of section 2 of chapter 70 of the General Laws, as most recently amended by section 6 of chapter 871 of the acts of 1970, is-hereby further amended by striking out the words, "for special classes for the physically handicapped and the mentally retarded ", in lines 4 and 5. " Section 10. Sections forty-six to forty-six B, inclusive, sections.forty-six D to forty-six F, inclusive, and sections forty-six H to forty-six M, Acts, 1972. — Chap. 766. 697 inclusive, of chapter seventy-one of the General Laws are hereby repealed. . . Section 11. The General Laws is hereby amended by inserting after chapter 71A the following chapter:—¦ CHAPTER 71B CHILDREN WITH SPECIAL NEEDS Section 1. The, following words as used in this chapter shall, unless the context requires otherwise, have the following meanings: "Department", the department of education; "School age child", any person of ages three through twenty-one who has not attained a high school diploma or its equivalent; "School age child withspecial needs", a school age child who, because of temporary or more permanent adjustment difficulties or attributes arising from intellectual, sensory, emotional, or physical factors, cerebral dysfunctions, perceptual factors, or other specific learning disabilities or any combination thereof, is unable to progress effectively in a regular school program and requires special classes, instruction periods, or other special education services in order to suc-¦ cessfully develop his individual educational potential; "Regular education", the school program and pupil assignment which normally leads to college preparatory or technical education or to a career; "Special education", educational programs and assignments, namely special classes, programs or services designed to develop the educational potential of children with special needs including but not limited to educational placements of children by school committees, the departments of public health, mental health, and youth services and the division of family and children's services in accordance with the regulations of the department of education; "School age child requiring ^special education", any child with special needs who requires special education as determined in accordance with the regulations set forth by the department. Section 2. The department shall promulgate, in cooperation with the departments of mental health, public health and welfare, regulations regarding programs for children with special needs including but not limited to a definition of special needs; provided, however, that such definition shall emphasize a thorough narrative description of each child's developmental potential so as to minimize the possibility of stig-matization and to assure the maximum possible development of a child with special needs, and, provided further, that such definition shall be sufficiently flexible to include children with multiple special needs. Children receiving or requiring special education shall be entitled to participate in any of the following programs: (1) additional direct or indirect instruction consultation service, materials, equipment or aid -provided children or their regular classroom teachers which directly benefits children requiring special education; (2) supplementary individual or small group instruction or treatment in conjunction with a regular classroom program; (3) integrated programs in which children are assigned to special resource classrooms but attend regular classes to the extent that they, are able to function therein; (4) full-time special class teaching or treatment in a public school building; (5) teaching or treatment at home; (6) full-time teaching or treatment in a special day school or 698 Acts, ,1972. — Chap. 766. other day facility; (7) teaching or treatment at a hospital; (8).teaching or treatment at a short or long term residential school; (9) occupational and pre-occupational training in conjunction with the regular occupational training program in a public school; (10) occupational and pre-occupational training in conjunction with full-time special class teaching in a public school building, at home, special day school or other day facility, hospital, or short or long-term residential school; (11) any combination or modification of programs (1) through (10) or other programs, services, treatments or experimental provisions which obtain the prior approval of the department. ' Admission to such programs on the pre-school level at an-'earlier age than at which schooling is ordinarily provided shall be regulated by the department in conjunction with the departments of public health and mental health and shall be restricted to children with substantial disabilities who are judged by said departments to require such programming. • No child shall be assigned to a special education class unless it is first determined by an evaluation of the child's needs and the particular special education program that the child is likely to benefit from such program; periodically thereafter, and in no event less often than annually the child and his'program shall be reevaluated to determine whether said child is benefiting from such program in accordance with the procedures set forth in. section three. In the event that said program is not benefiting the child and that another program may benefit the child more, or said program has benefited the child sufficiently to permit reassignment, the child shall be reassigned, and in the event of consistent failure of a program to benefit children there assigned, the program shall be abolished or altered. • Section 8. In accordance with the regulations, guidelines and directives of the department issued jointly with the departments of mental health and public health 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 special needs, 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 special needs or a-school age child requiring special education. No school committee shall refuse a school age child with special needs admission to or continued attendance in public school without the prior written approval of the department. No child who is so refused shall be denied an alternative form of education approved by-the department, as provided for in section ten, 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. Acts, 1972.—Chap. 766. 699 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 climes or facilities approved by the department under regulations adopted jointly by the department and the departments, of mental health and public health and the right to appeal from any evaluation,' first to the department, and then to the courts. Within thirty days after said notification the school committee shall provide an evaluation as hereinafter defined. 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. The department jointly with the departments of mental health 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 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 and medical treatment best suited to the child's 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 special needs requires of a medical or psychological treatment as part of a special education program provided pursuant to this section, or if his parent or guardian requires social services related to the child's special needs, such treatment or services, or both, shall be made available, in accordance with regulations promulgated jointly by the departments of education, mental health, public health and public welfare in connection with the child's special education program. Reimbursement of the costs of such treatment or services or both shall be made according to the provisions of section thirteen. Upon completion of said evaluation the child may obtain anPnde-pendent evaluation from child evaluation clinics or facilities approved. "¦••¦¦•¦¦¦ \ ¦ 700 Acts, 1972.—Chap. 766. by the department jointly with the departments of mental health and public health or, at private expense, from any specialists. Tl\e written record and clinical history from both the evaluation provided by the school committee and any independent evaluation, 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 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. At the conclusion of said hearing, with the advice and consultation of appropriate advisory councils established under section one P of chapter fifteen, the department may recommend alternative educational placements to the parents, guardians or persons ' with custody, and said parents, guardians and persons with custody may either consent to or reject such proposals. 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 or substantially disrupt the program for other students. 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. If the parents, guardians or persons with custody reject the educational placements recommended by the department and desire.a program other than a regular education program, the matter shall be referred to the state advisory commission on special education to be heard at its next meeting. The commission shall make a determination within thirty days of said meeting regarding the placement of the child. If the parents," guardians or person with custody reject this determination, 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 a 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. Within ten months after placement of any child in a special education program, and at least annually thereafter the child's educational progress shall be evaluated 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 Acts, 1972. — Chap. 766. 701 parents, guardians or persons having custody of the child. If the evaluation of the special education program shows that said program does not benefit the child to the maximum extent feasible, then such child shall be reassigned. 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. . Section 4- The school committee of any city, town or school district may, to meet its obligations under section three, with the approval of the department enter into an agreement with any other school committee to jointly provide special education or, subject to the consent of the parent or guardian affected thereby and subject to constitutional limitations, may enter into an agreement with any public or private school, agency, or institution to provide the necessary special education within the city," town or school "district"; In the case of an agreement between school committees to jointly provide special education, said agreement shall designate one city, town , or school district as the operating agent. Funds received by sufch operating agent from other cities, towns or school districts or appropriated by such operating agent for the purposes of such agreement, in addition to gifts and grants shall be deposited with and held as a separate account by its treasurer. The school committee may apply said funds to the costs of programs operated pursuant to the agreement without further appropriation. - Section 5. Any school committee which provides or arranges for the provision of special education pursuant to the provisions of section three shall pay for such special education personnel, materials and equipment, tuition, room and board, transportation, rent and consultant services as are necessary for the provision of such special education. A school committee which incurs costs or obligations as a result of section five of chapter one hundred and seventy^ne B of the General Laws, inserted by section eleven of this act, shall include within, its budget for its fiscal year which includes September first, nineteen hundred and seventy-three, and annually thereafter, an amount of money to comply with the provisions of said chapter. Said amount shall be added to the annual budget appropriation for school purposes in each city or town and shall be a portion of the amount necessary in such city or town for the support of public schools for the purposes of, and enforceable pursuant to, section thirty-four of chapter seventy-one, notwithstanding any general or special laws or charter provisions which limit the amount of money that may be appropriated in any city or town for school purposes. Section 6. School committees shall annually report to the department, pursuant to regulations promulgated by the department, the assignment by sex, national origin, economic status, race and religioD, of children by age level to special education classes and the distribution of children residing in the district by sex, national origin, economic status, race and religion of children by age level. Within any school district if in any special education program there is a pattern of assignment throughout the district on the basis of sex, national origin, economic status, race or 702 Acts, 1972.—Chap. 766. religion of the students which is substantially disproportionate from the distribution, the department shall notify such school district of its prima facie denial of equal educational opportunities. The department shall hold public hearings to investigate into such prima facie denial, at which hearings the local school district must show that such disproportion is necessary to promote a compelling education interest of the children affected and of the commonwealth. If the local school district fails to make such showing, a denial of equal educational opportunities shall be declared by the department and it shall order said district to submit a plan to eliminate such denial to be effective for the school year immediately following such declaration and order. If in the view of the department the plan submitted is inadequate, or if implementation of said plan proves inadequate, the department may request the attorney general to proceed to the superior court for all necessary injunctive and other relief. If such prima facie denial has continued without elimination for a period of two consecutive years-in any school district, any person residing in such school district may bring suit in the superior court of his residence to determine whether there is such adequate justification for the prima facie denial, and in the event there is not, to obtain the necessary-and appropriate injunctive or other relief. Section 7. No results of standardized or local tests of ability, aptitude,, attitude, affect, achievement, or aspiration may be used exclusively in the selection of children for referral, diagnosis, or evaluation. Such tests must be approved by the department in accordance with regulations issued by the board to insure that they are as free as possible from cultural and linguistic bias or, wherever necessary, separately evaluated with reference to the linguistic and cultural groups to which the child belongs. Section 8. If a school age child with special needs attends a school approved by the department within or without the city or town of residence of the parent or guardian, the school committee of the town where the child resides may be required by the department to provide transportation once each day including weekends where applicable to and from such school while the child is' in attendance. The city or town providing transportation under this section shall be reimbursed, according to the provisions of section thirteen. Section 9. The department, after consultation with the departments of mental health and public health, shall define the circumstances in which school committees may be required to provide special classes, instruction periods or other special education programs for school age children with special needs and shall provide standards for class size, ¦ curriculum, personnel and other aspects of special education for such children. 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 and a regional branch of the division of special education, and with'the approval of the secretary of educational affairs 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 needs and which are approved by the department under regulations prescribed by the departments of education, mental health and public health.. The curriculum at such an institution must for approval be equivalent, insofar as the Acts, 1972.—Chap. 766. 703 department deems feasible, to the curriculum for children of. comparable age and ability in the public schools of the commonwealth. Before acting on said request the department shall determine the nature and extent of a child's special needs, shall require the local school committee and regional advisory council to prepare and submit plans detailing the time needed to establish facilities adequate for children with special needs 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 avail- « able in the city, town or school district where the child with special needs resides. Until adequate facilities• can be made available, such' child shallbe 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, thatjap child shall be denied access tq_,, any program operated by the department of mental health, public' health or public welfare to which in the judgment of the operating department the child should be admitted. The expenses of the instruction and support actually rendered or fur- • nished to such children with special needs, including their necessary travelling 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, public health, youth services and public welfare 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 man^ ner in which the money appropriated therefor has been expended, to what extent reimbursed and such other information as he • deems important. Nothing contained herein shall affect the continued authority of the departments of mental health and public health over all non-educational programs and all treatment for residents or patients in institu- . tions under their control. Section 11. The department is hereby authorized to cooperate with cities and towns which establish recreation programs for school age children with special needs. Such programs shall be under the direction and approval of the division of special education, and the department shall reimburse said cities 704 Acts, 1972. — Chap. 766. and towns for one half of the cost thereof, including transportation of said children to and from the site of such program on each day said program is held. The department shall also fully reimburse a city or town in which said .children are residents for the cost of transportation to and from recreation programs at any state facility whose recreation programs are approved by the department for. the purposes of this section. • Section 12. The department shall establish and maintain a school department for school-age children in each institution under the control of the departments of .mental health, public health and youth services which provides support and care for resident children with special needs, acting jointly with the department which has control over the particular institution; provided, however, that appropriations for the administration of said school departments shall be administered by the department of education. Each such school department shall be administered by a director, appointed jointly by the commissioner of education and the superintendent of said institution. Each such school department shall have such staff as the department and the department which administers the institution involved deem appropriate. . Such school departments shall operate pursuant to regulations established jointly by the department and the department which administers said institution. Nothing contained herein shall affect the continued authority of departments operating such institutions over all non-educational programs and all treatment for residents or patients in institutions under their control. The director and staff of such school departments shall be employees of the department of education, which shall assume the costs of all aspects of the educational programs in such departments. Said school departments may operate twelve months of the year. The salaries of school department personnel shall be paid at a rate at least equivalent to that of the average statewide public school salaries for comparable personnel employed in the public schools, as adjusted to account for the longer school year in the school departments. The total employee benefits accruing to such personnel in vacation, sick leave, tenure, and retirement benefits shall be similarly comparable to those of public school personnel, as adjusted to account for the longer school year in the school departments. Nothing contained herein shall operate to remove from employment any educational personnel already employed by any institution now under the administration of the department of mental health, public health or youth services,, or to reduce their salaries or other employee benefits. . The per capita expenditure on education programs in such school departments shall be equivalent to or higher than the average expenditure for special education programs in the public schools of the commonwealth less the average transportation costs. Said average expenditure shall be computed annually by the department of education. The city, town or regional school district in which each school-age child in any institution described hereinabove would normally be eligible to attend school shall pay to the commonwealth the costs of the education of said child in the school department of said institution in an amount determined according to the regulations issued under section Acts, 1972. — Chap. 766. 705 ten; provided, however, that said payment for each such child shall not be less than its average per pupil cost for pupils of comparable age within the said city, town or school district. The amount due the commonwealth each year shall be deducted from the annual distribution to said city, town or school district pursuant to section eighteen A of chapter fifty-eight. Section' IS. The cost of instruction, training and support, including the cost of special education personnel, materials and equipment, tuition, transportation, rent and consultant services, of the children in special classes, instruction periods or other programs provided under section three shall, for the amount, by which such costs exceed the average per pupil expenditure of the city, town or school district for the education of children of comparable age, be reimbursed by the commonwealth to the city, town or school district as provided in section eighteen A of chapter fifty-eight; provided however, that the amount of such reimbursement for each special education pupil in the city, town or school district shall not exceed one hundred and ten per cent of the applicable state average expenditure for each special education pupil minus the state average expenditure per public school pupil. In determining the applicable state average expenditure for each special education pupil for the purposes of this section the department shall differentiate between types of programs on the basis of the amount of time a child requires special programs outside of the regular classroom to meet his particular needs and the ratio of personnel to pupils required for such programs. Such reimbursement shall be made only after approval and certification by the department that such expenditures are reasonable and that funds for such special education personnel, materials and equipment, tuition, transportation, rent and consultant services were actually expended and that such special education classes, instruction periods and other programs have met the standards and requirements prescribed by the department. The costs for each special education pupil shall be "reimbursable expenditures" within the meaning of chapter seventy, in an amount not to exceed the average per pupil expenditure for said city, town, or school district, and shall be reimbursed under said chapter. ' The department shall reimburse a city or town in which a child resides who attends a clinical nursery school established under section twenty-seven of chapter nineteen or a child, who, because of insufficient classroom space in a clinical nursery school, attends a clinical nursery school, day care center or other institution for the care, education or treatment of retarded children conducted by an accredited school or college within the commonwealth, as provided in said section twenty-seven, or a retarded person who attends an educational, habilitational or day care program or facility of the department of mental health, as provided under section twenty-eight of said chapter nineteen, by paying one half of the cost of the transportation of each such child and the full cost of each such adult to and from such educational, habilitational or day care program or facility, as the case may be, one each day said school is in session. Any reimbursements made to cities and towns under this section shall be made to the school committees of such cities and towns and shall be applied to the costs of programs provided for under this chapter without further appropriation.' 706 Acts, 1972. —Chap. 766. Section 14. The state treasurer shall annually, on or before November twentieth, -pay, under paragraph (3) of subsection (b) of section eighteen A of chapter fifty-eight, to any city or town or regional school district such sums as may be certified by the commissioner of education on account of special equipment purchased, leased and maintained or of classes or special instruction periods conducted as provided in section two. Section 12. The first sentence of section 1 of chapter 76 of the General Laws, as amended by chapter 400 of the acts of 1950, is hereby > further amended by inserting in line 22 after the word, "impracticable," the words, "subject to the provisions of section three of chapter seventy-one B". i . Section 13. Said chapter 76 is hereby amended by striking out seer tion 11 and inserting in place thereof the following section: — Section 11. Any city or town which provides instruction to any child who is a resident of an institution and who was not theretofore a resident of such city or town may recover from the commonwealth the school expense incurred by reason of the school attendance of such child.to be determined jointly by the school committee of such city or town and the department of education or, in case of their disagreement, by the probate court. The amount recoverable by a city or town under this section shall be limited to the annual per pupil cost of education as determined under section seven and no costs shall be reimbursed under this section which are reimbursable .under section thirteen of chapter seventy-one B. Section 14. The definition of "approved school projects" in section 5 of chapter 645 of the acts of 1948 is hereby amended by inserting after the second sentence the following sentence: — No school construction project shall be an approved school project unless and until the school building assistance bureau and the division of special education in the department of education are satisfied that adequate provisions have been made for children with special needs as defined in section one of chapter seventy-one B of the General Laws. '•"• Section 15. The secretaries of the executive offices of human services and education shall jointly submit an annual report to the governor and the general court evaluating the success with which the departments under their administration have cooperated in the implementation of this act together with any recommendations for improving the ability of the commonwealth to meet the needs of children with special needs. Section 16. A child who is in a special education program as of the effective date of this act shall be presumed to be appropriately assigned to said program until an evaluation pursuant to the provisions of section^ three of chapter seventy-one B of the General Laws, inserted by section eleven of this act, indicates that another program would benefit said child more. . Section 17. No child, with special needs in a special education program on the effective date of this act shall be removed from said program he is in without the written consent of the parents, guardians, or persons with custody of said child. • ¦ ¦¦ .. Section 18.. A school committee shall not be responsible for more than the average per pupil cost for pudUs of comparable age within the respective city, town or school district as its share of the cost of con- Acts, 1972.—