Chapter 222 of the Acts of 2012
Student Discipline and Attendance
September 9, 2014
M AT T H E W W. M A C AV O Y, E S Q .
N U T TA L L & M A C AV O Y, P. C .
1 0 2 0 P L A I N S T R E E T
M A R S H F I E L D , M A 0 2 0 6 1
7 8 1 - 8 3 7 - 7 4 2 8
S N M E D L AW. C O M

An Act Relative to Student Access to Educational Services and Exclusion from School
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Signed into law by Governor Patrick in August 2012.
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Effective July 1, 2014
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Purpose of the law
• Elimination of “Zero Tolerance” approaches to school disciplinary matters
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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.

◦ 3 Major Provisions
1) Discipline
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Creates M.G.L. c.71, §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);
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Creates M.G.L. c.76, §21 requiring educational services to be provided to any student suspended or excluded for more than ten (10) consecutive school days.
2) Pupil Absences
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Amends M.G.L. c.76, §1 to require districts to develop and implement a Pupil Absence
Notification Program for the purpose of reducing and responding to student absences.
3) Drop-out-Prevention
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Modifies M.G.L. c.76, §18 to expedite and formalize the process for responding to extended unauthorized absences from school before a student can be considered to have withdrawn from school.

Massachusetts Statutes
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M.G.L. c.71, §37H
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M.G.L. c.71, §37H ½
• M.G.L. c.71, §37H ¾ (as of 7/1/14)
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M.G.L. c.76, §17
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M.G.L. c.76, §16
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M.G.L. c.76, §21 (as of 7/1/14)
Massachusetts Regulations
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603 CMR 53.00
Federal Statutes
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The Individuals with Disabilities Education Act (IDEA)
• Section 504 of the Rehabilitation Act of 1973
Federal Regulations
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34 CFR §300.530-537

M.G.L. c.71, §37H
• A Principal has authority to permanently expel a student for the following conduct:
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Possession of a dangerous weapon
• Principal’s determination
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Possession of a controlled substance (as defined in c.94C)
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Marijuana = controlled substance
• Alcohol ≠ controlled substance
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Assault on Staff
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Principal must conduct formal hearing at which:
• student has right to counsel (at private expense);
• to examine the evidence against the student;
• and to present evidence in own defense.
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Student may appeal decision in writing to the Superintendent within 10 calendar days.

M.G.L. c.71, §37H1/2
◦ Principal may suspend based on the issuance of felony charges where the Principal determines that the student’s continued presence would have a substantial detrimental effect on the welfare of the school.
◦ Principal must provide written notice of charges and basis for decision prior to imposition of suspension and notice of appeal process.

A school committee shall not permanently exclude a pupil from the public schools for alleged misconduct without first giving him and his parent or guardian an opportunity to be heard.
* Effectively nullified by Chapter 222 of the Acts of 2012

(until 7/1/2014)
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Regular Education Students
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No entitlement to educational services during periods of disciplinary exclusion
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BOARD OF EDUCATION vs. SCHOOL COMMITTEE OF QUINCY,
415 Mass. 240 (1993)
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Students with Disabilities
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Special education students have always been entitled under federal law (IDEA) to services necessary to provide free appropriate public education as of the 11 th day of exclusion in a school year

The New Discipline Statute - M.G.L. c.71, §37H3/4
• Establishes due process requirements for students subject to exclusion from school for non
37H and 37H ½ offenses.
• Applies to any offense that does not fall under 37H or 37H1/2.
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Requires the same level of due process as when excluding students under 37H and 37H
½.
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Requires Principals to implement alternative strategies prior to imposing a Long-Term
Suspension
• Limits exclusion of any student for a school rules violation to a maximum of ninety (90) school days in a single school year.
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Effectively eliminates ability to expel students for non-37H or 37H1/2 offenses
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Allows for appeal of suspensions resulting in 10 or more days of suspension (in or out of school) in a school year.
• Requires that districts notify DESE of all suspensions and exclusions of students.

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Apply to any offense that does not fall under 37H or 37H1/2.
• “The purpose of 603 CMR §53.00 is:
(a) To limit the use of long-term suspension as a consequence for student misconduct until other consequences have been considered and tried as appropriate;
(b) To promote engagement of a student's parent in discussion of the student's misconduct, and options for responding to it;
(c) To assure that every student who is expelled or suspended, regardless of the reason for suspension or expulsion, has the opportunity to receive education services to make academic progress during the period of suspension or expulsion; and,
(d) to keep schools safe and supportive for all students while ensuring fair and effective disciplinary practices.

603 C.M.R. § 53.02
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In-School Suspension - Removal of a student from regular classroom activities, but not from the school premises, for no more than 10 consecutive school days, or no more than 10 school days cumulatively for multiple infractions, in a school year.
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Removal from extracurricular activities or school-sponsored events, or both, shall not count as a removal.
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If placed in In-School Suspension for more than 10 days, such a suspension shall be considered a long-term suspension.
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Short-Term Suspension - Removal of the student from the school premises and regular classroom activities for 10 consecutive school days or less.
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Long-Term Suspension - Removal of the student from the school premises and regular classroom activities for more than 10 consecutive school days, or more than 10 school days cumulatively for multiple disciplinary offenses in any school year.
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Expulsion - Removal of a student from the school premises for more than ninety (90) school days, indefinitely, or permanently, as permitted under G.L. c. 71, §§37H or 37H½.
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Written Notice : Written correspondence sent hand-delivery, certified mail, first-class mail, email to an address provided by the parent for school communications, or any other method of delivery agreed to by the Principal and the parent.

603 C.M.R. § 53.10
May impose In-School Suspension up to 10 days in a school year provided the student has the opportunity to make academic progress during the In-School Suspension.
The Principal must:
1) Inform the student of the disciplinary offense charged and provide the student with the opportunity to respond.
2) If the Principal determines that the student committed the offense, the Principal must inform the student of the length of the In-School Suspension.
3) Provide oral notice (on the same day) to the parents of the Principal’s determination and the length of the In-School Suspension. The Principal must also make reasonable efforts (at least two telephone calls) to invite the parents to a meeting to discuss the student’s academic performance and behavior, strategies for student engagement, and possible responses to the behavior.
4) On the day of the In-School Suspension, Principal must deliver written notice to the parents of the basis for and length of the in-school suspension and inviting the parents to meet to discuss the student’s behavior if such a meeting has not already occurred.

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Principal may not impose an out of school suspension as a consequence for a disciplinary offense without first providing the student and the parent with oral and written notice and the opportunity to be heard.
• For all suspensions, the written notice must include:
• Identification of the alleged disciplinary violation; the basis for the charge; the potential length of the student’s suspension; the opportunity for the student to be heard and the parent to participate; date, time and location of the hearing; notice of right to have translation services if needed to participate in the hearing.
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If the student is potentially subject to Long-Term Suspension (more than consecutive or cumulative 10 days), the notice must also include:
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Notice of opportunity to review records; right to be represented by counsel; right to produce witnesses and to present an explanation of the incident; right to cross-examine witnesses presented by the district; and the right to request that the hearing be audio recorded by the
Principal. 603 C.M.R. § 53.08(3).
• Notice may be by email .

603 C.M.R. 53.07
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Principal may remove a student temporarily (up to 2 school days) when:
• A student is charged with a disciplinary offense and, in the Principal’s opinion, the student’s continued presence in the building poses a danger to persons or property, or would substantially and materially disrupt the order of the school and if there is no alternative available to alleviate the danger or disruption.
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Principal must:
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Make immediate and reasonable efforts to orally notify the student and the student’s parent of the emergency removal and of the reason for the need for emergency removal, and the notice requirements for short-term suspension, including written notice.
• Make “adequate provisions” for the student’s safety and transportation.
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Conduct a hearing within 2 school days .

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Short-Term Suspension Hearing:
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Principal must provide the student and parents (if present) with the opportunity to dispute the charges and to present information, including mitigating facts, for the Principal to consider in determining whether remedies and consequences other than suspension may be appropriate.
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Long-Term Suspension Hearing
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In addition to the rights afforded in a short-term suspension hearing, Principal must provide the student and parents with:
• The opportunity to review the student’s record and the documents upon which the Principal may rely at the hearing;
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The right to be represented by counsel or a lay person of the student’s choice, at the student’s/parent’s expense;
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The right to produce witnesses on his or her behalf and to present the student’s explanation of the alleged incident;
• The right to cross-examine witnesses presented by the school district;
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The right to request that the hearing be recorded by the Principal, and to receive a copy of the audio recording upon request.

603 C.M.R. §53.08(2)(c)
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Notice of the disciplinary determination must be in writing and must include:
• the reasons for the determination;
• the type and duration of suspension; and
• notice of the opportunity to make up assignments and such other school work as needed to make academic progress during the period of removal.
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If the student is in grades K-3, the principal must, before the Short-Term
Suspension takes effect,:
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Send the copy of the written determination to the Superintendent and
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Explain the reasons for imposing an out-of-school suspension.

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Prior to imposing a long-term suspension under 37H3/4, a Principal “shall consider ways to reengage the student in learning and avoid long-term suspension from school as a consequence until alternatives have been tried.
Alternatives may include the use of evidence-based strategies and programs such as mediation, conflict resolution, restorative justice, and positive behavioral interventions and supports.”
603 C.MR. §53.05

603 CMR §53.08(3)(d)
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If the Principal decides to impose a Long-Term Suspension, the written notice of the determination must:
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Identify the offense, the date of the hearing, and the participants at the hearing;
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Set out the key facts and conclusions reached by the Principal;
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Identify the length and effective date of the suspension, as well as the date of return to school;
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Include notice of the opportunity to receive education services during the period of exclusion;
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Inform student of the right to appeal and the process for making such an appeal; and
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Include notice that the suspension will remain in effect unless reversed on appeal.

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A student has the right to appeal:
• Any Long-Term Suspension imposed by the Principal
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Any Short-Term Suspension that will result in the student’s suspension for more than 10 cumulative school days in a single school year
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Any In-School Suspension that will result in a student’s In-School Suspension for more than 10 cumulative school days in a single school year
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The student and parents have five (5) calendar days from the effective date of the suspension to appeal
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Must be granted an extension of seven (7) calendar days upon request.
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Superintendent must conduct appeal hearing within three (3) school days
• Must provide student with all of the rights provided at the Principal’s hearing and must audio-record the hearing.
• Superintendent’s decision is final.

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M.G.L. c.76, §21
• Any student serving a suspension “shall have the opportunity to make up assignments, tests, papers and other school work as needed to make academic progress” during his or her period of removal from the classroom or school.
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The student and parent must be informed of this opportunity when the suspension is imposed.
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A pplies to all suspensions and exclusions under §37H, §37H1/2 and
§37H3/4. (
In-School Suspension, Short-Term Suspension and Long-Term
Suspensions )

Academic Progress and Educational Services
603 C.M.R. §53.13
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Suspensions of (10) consecutive school days or less
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Must provide student with opportunity to earn credits, make up assignments, tests, papers, and other school work as needed to make academic progress during the period of his or her removal from the classroom or school.
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Suspensions of more than ten (10) consecutive school days
◦ Must provide the student with the opportunity to receive educational services that will enable the student to make academic progress towards state and local graduation requirements, including the opportunity to complete assignments, homework, quizzes, exams, papers, projects and to earn course credit.
◦ The services that will be made available to such students must be detailed in a school-wide
Education Services Plan.

School-wide Education Service Plan must provide:
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A listing of the educational services that will be made available to students who are excluded from school for more than 10 consecutive days.
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Examples: direct tutorial programs, night school, alternative school, collaborative school programs, online learning
• “Educational services shall be based on, and be provided in a manner consistent with, the academic standards and curriculum frameworks established for all students under G.L. c. 69, §§1D and 1F.”
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A description of the process for notifying parents and students of the services to be made available and for arranging for the services to be provided.

Exclusions of more than 10 consecutive days
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Upon selection of an alternative educational service by the student and parent or guardian, the school must facilitate and verify enrollment in the service. M.G.L. c.76, §21.
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Transportation?
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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 through the school’s Education Services Plan.
M.G.L. c.76, §21.

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DESE estimated the total annual cost of an instructional program meeting the law’s requirements to range from $32,103.00 to $300,131.00, depending on the program model.
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This worked out to be an estimated $1,890 to $8,559 per pupil.
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The estimates include only costs for academic and instructional services.
• Program models (Fall River on campus tutoring program, Springfield’s IAES program, and North Adam’s online learning program)
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Programs surveyed ranged in intensity from a few hours per week to a full-day program and served different numbers of students.
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The DESE study is available at: http://www.doe.mass.edu/research/reports/2013-
11StudentDisciplineLawCost.pdf

• “Instructional costs” associated with providing alternative education services are
“eligible” for reimbursement, “subject to appropriation” under the special education circuit breaker statute at M.G.L. c. 71B, §5A.
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 or 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.

Unfunded Mandate?
The State Auditor’s Assessment
On January 31, 2013, State Auditor Susan Bump issued an analysis of the cost of complying with
Chapter 222 of the Acts of 2012 with regard to the provision of alternative educational services to students who have been suspended or expelled for ten consecutive days or more. Auditor Bump found:
1.
The Chapter 222 alternative educational services requirements “will clearly effect substantive change in the obligations of school officials” not imposed previously by statute or case law.
2.
The c.71B, §5A funding provided for in Chapter 222 is insufficient to satisfy state mandated funding requirements.

Provides a total of $246,140.00 for a statewide alternative education grant program to provide alternative educational services in accordance with Chapter 222 of the Acts of 2012. (7061-9614)

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School districts must collect and annually report data to the DESE regarding all In-School
Suspensions, Short-Term Suspensions, Long-term Suspensions, Expulsions, and Emergency
Removals, student accessing of alternative education services, and such other information as may be required by the Department.
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Principals must periodically review discipline data by selected student populations, including but not limited to race and ethnicity, gender, socioeconomic status, English language learner status, and student with a disability status. The Principal must assess the impact of such disciplinary action on selected student populations.
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In the fall of each year, the DESE must publish an analysis and report of student discipline data disaggregated by district and school, and by selected student populations, included but not limited to race and ethnicity, gender, socioeconomic status, English language learner status, and student with a disability status.

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.
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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.
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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 ten (10) school days from the student’s 15 th consecutive absence to the student’s parent. District must offer to meet with the student and parent before the student can be considered to have permanently withdrawn from school.
Effective July 1, 2014
◦ An administrator from the school the student has last attended must send written notice within a period of five (5) school days from the student’s 10 th consecutive absence to the student and parent.

M.G.L. c.76, §18 ( as amended
)
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The written notice must:
• Offer at least 2 dates and times for an “exit interview” between a team of personnel and the student and parent(s) to occur within ten (10) school days;
• Include contact information for scheduling an “exit interview;”
• Indicate that the parties must agree on a date and time for the “exit interview;”
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That the interview date may be extended at the request of the parent, but not more than 14 days;
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Exit Interview Team:
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Principal, guidance counselor, teachers, attendance officer and other relevant school staff.
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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.