Bill H.3758

HOUSE DOCKET, NO. 3216 FILED ON: 1/18/2019

HOUSE . . . . . . . . . . . . . . . No. 3758

By Ms. Higgins of Leominster (by request), a petition (accompanied by bill, House, No. 3758) of Emily LaMarca relative to monitoring and documentation of school discipline. Education.

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

_______________

An Act requiring the monitoring and documentation of school discipline.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 71B of the General Laws is hereby amended by adding the following section:-

Section 17. (a) For purposes of this section, the following terms shall have the following meanings, unless the context clearly requires otherwise:

“Charter School”, commonwealth charter schools and Horace Mann charter schools unless specifically stated otherwise.

"School business day" means a day that campus or school district administrative offices are open.

"Staff member" means a teacher, related service provider, paraprofessional, counselor, or educational aide assigned to work in a self-contained classroom or other special education setting.

"Time-out" means a behavior management technique in which the student is separated from other students for a limited period in a setting: (i) that is not locked; and (ii) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.

(b) (1) Any school district or charter school in which a student who receives special education services in a self-contained classroom or other special education setting is enrolled, shall, upon a written request pursuant to paragraph (2), place, operate and maintain 1 or more video cameras in each self-contained classroom or other special education setting in which a majority of the students in regular attendance are: (A) provided special education and related services; or (B) assigned to a self-contained classroom or other special education setting for at least 50 per cent of the instructional day.

(2) For purposes of this subsection:

(A) a parent of a child who receives special education services in 1 or more self-contained classrooms or other special education settings may request in writing that video monitoring be provided to the school or campus at which the child receives those services;

(B) a board of trustees or school committee may request in writing that equipment be provided to 1 or more specified schools at which 1 or more children receive special education services in self-contained classrooms or other special education settings;

(C) the principal or assistant principal of a school at which 1 or more children receive special education services in self-contained classrooms or other special education settings may request in writing that equipment be provided to the principal's or assistant principal's school; and

(D) a staff member assigned to work with 1 or more children receiving special education services in self-contained classrooms or other special education settings may request in writing that equipment be provided to the school at which the staff member works.

(c) Each school district or charter school shall designate an administrator at the primary administrative office of the district or school with responsibility for coordinating the provision of equipment to schools in compliance with this section.

(d) A written request pursuant to paragraph (2) of subsection (b) shall be submitted and acted on as follows:

(1) a parent, staff member, or assistant principal shall submit a request to the principal or the principal's designee of the school addressed in the request, and the principal or designee shall provide a copy of the request to the administrator designated under subsection (c);

(2) a principal shall submit a request by the principal to the administrator designated under subsection (c); and

(3) a board of trustees or school committee shall submit a request to the administrator designated under subsection (c)and the administrator shall provide a copy of the request to the principal or the principal's designee of the school addressed in the request.

The district or school shall provide a response to a request made pursuant to paragraph (2) of subsection (b) that authorizes the request or states the reason for denying the request not later than the seventh school business day after receipt of the request by the person to whom it shall be submitted under this subsection.

(c) A school that places a video camera in a classroom or other special education setting in accordance with subsection (b) shall operate and maintain the video camera in the classroom or setting, as long as the classroom or setting continues to satisfy the requirements under subsection (b), for the remainder of the school year in which the school received the written request, unless the requestor withdraws the request in writing. If for any reason a school discontinues operation of a video camera during a school year, not later than the fifth school day before the date the operation of the video camera will be discontinued, the school shall notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue unless requested by a person eligible to make a request under subsection (b). Not later than the tenth school day before the end of each school year, the school shall notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue during the following school year unless a person eligible to make a request for the next school year under subsection (b) submits a new request.

(d ) Video cameras operated pursuant to this section shall be capable of: (1) covering all areas of the classroom or other special education setting, including a room attached to the classroom or setting used for time-out, except that the inside of a bathroom or any area in the classroom or setting in which a student’s clothes are changed shall not be visually monitored; and (2) recording audio from all areas of the classroom or setting, including a room attached to the classroom or setting used for time-out.

(e) Before a school activates a video camera in a classroom or other special education setting pursuant to this section, the school shall provide written notice of the placement and use of such video monitoring to all school staff and to the parents of each student attending class or engaging in school activities in the classroom or setting to be monitored.

(f) A district or charter school shall retain video recorded from a camera operated pursuant to this section for at least 6 months from the date the video was recorded. If a person pursuant to subsection (j) requests to view a video recording from a video camera placed pursuant to this section, a school district or charter school shall retain the recording from the date of receipt of the request until the person has viewed the recording and a determination has been made as to whether the recording documents an alleged incident. If the recording documents an alleged incident, the district or school shall retain the recording until the alleged incident has been resolved, including the exhaustion of all appeals.

(g) A school district or charter school may solicit or accept gifts, grants and donations from any person for use in placing video cameras in classrooms or other special education settings under this section.

(h) This section shall not:

(1) waive any immunity from liability of a school district or charter school, or of district or school officers or employees; or

(2) create any liability for a cause of action against a school district or charter school or against district or school officers or employees.

(i) A school district or charter school shall not:

(1) permit regular or continual monitoring of video recorded under this section; or

(2) use video recorded under this section for teacher evaluation or for any other purpose other than the promotion of safety of students receiving special education services in a self-contained classroom or other special education setting.

(j) A video recording of a student made pursuant to this section is confidential and may not be released or viewed except as provided in this section. A school district or charter school shall release a recording for viewing by:

(1) an employee who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on request of the employee;

(2) a parent or guardian of a student who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on request of the parent;

(3) appropriate personnel from the department of children and families or the department of elementary and secondary education as part of an investigation;

(4) a peace officer, school nurse, district administrator trained in de-escalation and restraint techniques as provided by commissioner rule, or a human resources staff member designated by the board of trustees, school committee or governing body of the school district or the charter school in response to a complaint or an investigation of district or school personnel or a complaint of abuse committed by a student; or

(5) appropriate department or office of educator licensure personnel or agents as part of an investigation.

A contractor or employee performing job duties relating to the installation, operation, or maintenance of video equipment or the retention of video recordings who incidentally views a video recording shall not be considered in violation of this subsection.

(k) If a person under clauses (4) or (5) of subsection (j) who views the video recording believes that the recording documents a possible violation of section 37G of chapter 71 or the regulations promulgated thereunder, the person shall notify the department of elementary and secondary education. If any person under clauses (3), (4) or (5) of subsection (j) who views the recording believes that the recording documents a possible violation of district or school policy, the person may allow access to the recording to appropriate legal and human resources personnel. A recording believed to document a possible violation of district or school policy relating to the neglect or abuse of a student may be used as part of a disciplinary action against district or school personnel and shall be released at the request of the student's parent or guardian in a legal proceeding. This subsection does not limit the access of a student's parent or guardian to a record regarding the student under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. section 1232g, or any other law.

(l) The commissioner of elementary and secondary education shall adopt rules to implement and administer this section, including rules regarding the special education settings to which this section applies.

(m) A school district or charter school policy relating to the placement, operation, or maintenance of video cameras pursuant to this section shall:

(1) include information on how a person may appeal an action by the district or school that the person believes to be in violation of this section or a policy adopted in accordance with this section;

(2) except as provided by clause (4), require that a school begin operation of a video camera in compliance with this section not later than the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the request is authorized unless the department grants an extension of time;

(3) permit the parent of a student whose placement for the following school year will be in a classroom or other special education setting in which a video camera may be placed under this section to make a request for the video camera by the later of:

(A) the date on which the current school year ends; or

(B) the 10th school business day after the date the parent is notified of the placement; and

(5) if a request is made by a parent in compliance with clause (4), unless the department grants an extension of time, require that a school begin operation of a video camera in compliance with this section not later than the later of:

(A) the 10th school day of the fall semester; or

(B) the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the date the request is made.

(n) A school district, charter school, parent, staff member, or administrator may request an expedited review by the department of the district or charter school's:

(1) denial of a request made under this section;

(2) request for an extension of time to begin operation of a video camera pursuant to subsection (m); or

(3) determination to not release a video recording to a person described by subsection (j).

(o) If a school district, charter school, parent, staff member, or administrator requests an expedited review under subsection (n), the department shall notify all other interested parties of the request.

If an expedited review has been requested under subsection (n), the department shall issue a preliminary judgment as to whether the district or charter school is likely to prevail on the issue under a full review by the department. If the department determines that the district or charter school is not likely to prevail, the district or charter school shall fully comply with this section notwithstanding an appeal of the department's decision. The department shall notify the requestor and the district or charter school, if the district or charter school is not the requestor, of the department’s determination.

(p) The commissioner:

(1) shall adopt rules and regulations relating to the expedited review process under subsections (n) and (o), including standards for making a determination under subsection (o); and

(2) may adopt rules and regulations relating to an expedited review process under subsections (n) and (o) for an open-enrollment charter school.

(q) The department shall collect data relating to requests made under this section and actions taken by a school district or charter school in response to a request, including the number of requests made, authorized, and denied.

(r) A video recording under this section shall be considered a record under section 13E of chapter 268.

(s) This section applies to the placement, operation, and maintenance of a video camera in a self-contained classroom or other special education setting during the regular school year and extended school year services.

(t) A video camera placed pursuant to this section is not required to be in operation for the time during which students are not present in the classroom or other special education setting.

SECTION 2. Chapter 71 of the General Laws is hereby amended by inserting after section 37G the following section:-

Section 37G ½. For purposes of this section, "Time-out" shall mean a behavior management technique in which the student is separated from other students for a limited period in a setting: (i) that is not locked; and (ii) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.

Each school district and charter school shall require appropriate school staff persons to keep a daily tracking log for each student that is placed in a time-out space. The log shall include the student’s name, the reason for separating the student from the classroom, the time spent in each individual time-out, and the staff that was present. Said logs shall be made available to students, parents or guardians and special education directors upon written request. The school district or charter school shall notify a parent or guardian any time a student receives a time-out.

SECTION 3. There shall hereby be established a task force on safety in schools, hereinafter referred to as the task force. The task force shall consist of 7 members, who shall be appointed by the governor, as follows: 1 of whom shall be a representative from the Massachusetts Teachers Association; 1 of whom shall be a medical professional who specializes in trauma in children; 1 of whom shall be a board certified behavior analyst; 1 of whom shall be an attorney with experience in special education law; 1 of whom shall be a representative from a disability advocacy group in the commonwealth; 1 of whom shall have personal experience with restraint and seclusion in school, including but not limited to a parent or teacher; and 1 of whom shall be a representative of Massachusetts Association of 766 Approved Private Schools. The task force shall study the use and effect of restraint and seclusion in schools. The task force shall submit a report, along with any recommendations for legislation to address the issues identified in the study, to the clerks of the house of representatives and the senate, and the house and senate chairs of the joint committee on children, families and persons with disabilities and the joint committee on education not later than 1 year after the effective date of this act.

Name:	District/Address:	Date Added:
Emily LaMarca		1/18/2019