CHAPTER 190

FORMERLY

SENATE BILL NO. 353

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTERS 13, 17, 27, AND 31, TITLE 14, OF THE DELAWARE CODE RELATING TO EXCEPTIONAL PERSONS, TO INCLUDE AUTISTIC CHILDREN AND TO REQUIRE THE STATE TO PROVIDE AN EDUCATIONAL PROGRAM FOR ALL HANDICAPPED PERSONS AND PROVIDING A SUPPLEMENTARY APPROPRIATION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend subsection (a) of Section 1324, Chapter 13, Title 14, Delaware Code, by striking the word "or" immediately preceding.the words "the partially deaf" and by adding between the words "hearing" and "as provided" the words "or autistic".

Section 2. Amend Section 1703, Chapter 17, Title 14, Delaware Code, by striking the period at the end of the first sentence of subsection (d) and inserting in lieu thereof ",classes for autistic children, 1 unit for 4 children."; by striking the period at the end of the first sentence of subsection (e) and inserting in lieu thereof "or autistic." and by striking subsection (f) in its entirety.

Section 3. Amend Section 2705, Chapter 27, Part I, Title 14 of the Delaware Code by striking said section in its entirety and substituting in lieu thereof a new section to read as follows:

"§2705. Exception; handicapped persons

Other provisions of this Title notwithstanding, a child may be exempted from the provisions of §2702 of this Chapter upon request of the parent, guardian, or other person

legally having control of that child when the request is supported by written documentation of a physician, psychiatrist, psychologist, or neurologist as the case may require.

The request and documentation shall be addressed to the Superintendent of Schools of the school district in which the. person resides indicating that the person is mentally or physically handicapped to such an extent that attendance in a school program is impracticable or unsafe.

Any disputed decision under the provisions of this section shall be presented first to the Board of Education of the school district of which the child is a resident

and may thereafter be appealed to the State Board of Educa-

tion. The decision of the State Board of Education is final."

Section 4. Amend Section 3101, Chapter 31, Title 14, Delaware Code, by adding thereto a new subsection (10), to read as follows:

"(10) 'Autistic children' means children between the chronological ages of 4 and 21 who have been determined by individual psychological or psychiatric examination to have the specific disability cf autism. The behavioral manifestations of autism include some combination of the

following: Inability to use language for appropriate communication, a history of inability to relate appropriately to other individuals and continued impairment in social interaction from infancy or early childhood, an obsession to maintain sameness, a preoccupation with objects and/or inappropriate use of objects, extreme resistance to controls, and/or exhibition of peculiar motoric mannerisms and motility patterns."

Section 5. Amend Chapter 31, Title 14, Delaware Code, by adding thereto new Sections 3110 and 3111, to read as follows:

'§3110. Supportive services for autistic children

Any school district administering a program for autistic children may provide from its own personnel or contract with another state agency, or a private service provider

if necessary for appropriate supportive services; including, but not limited to, physical, art and music education, psychological services, language and speech therapy, physical

and occupational therapy. The supportive services to be provided shall be based upon a program for each child as approved by the State Board of Education. Funds for such services are to be paid from the Educational Contingency Fund of the State Board of Education.

§3111. Handicapped persons; private _placement with financial aid

(a) Private placement with financial aid shall be granted only to a 'complex or rare' handicapped person defined as a person in the chronological age group four through twenty years inclusive, who is found to suffer from two or more of the defined handicaps, or who is so severely afflicted by a single handicap, that the total impact of the condition means that he or she cannot benefit from the regularly offered free appropriate public educae tional programs.

The determination shall be made by a committee appointed by the local Board of Education for identification, placement, review and dismissal of handicapped persons and by the State Board of Education that no school district or other State agency has a suitable free and appropriate program of education for the particular person. Such private placement shall be in a school/institution approved by the State Board of Education. The State Board of Education shall make the final determination concerning the designation of a person eligible under the provisions of this definition.

(b) In the case of dispute concerning the private placement of a child, the aggrieved party shall first be heard by the local Board of Education. Such hearing shall be conducted by an impartial hearing officer appointed at the discretion of the local Board of Education, but who shall not be an employee of the district involved in the education of the child or have any interest in the outcome of the hearing. The ruling of the local Board of Education may be appealed to the State Board of Education. The decision of the State Board of Education shall be final in determining the private placement school or institution in which the authorized persons shall be enrolled.

(c) 'Financial aid' shall include maintenance, transportation and tuition as herein defined:

(I) 'Maintenance' shall mean the cost for room and board at a residential institution or in a residence approved by the institution in which a person is enrolled. Maintenance does not include the cost of health care or treatment.

(ii) 'Transportation' is defined for in-state placement at the same number of dollars as provided for a nonpublic school student in accordance with rules and regulations of the State Board of Education; in the case of out-of-state private placement, transportation is defined as the amount provided for nonpublic school students for one round trip per year between Delaware and the school based upon actual air coach fare if that is the lesser amount or as determined by the State Board of Education if no air coach fare estimate is possible.

(i) 'Tuition' shall mean payment for instructional services, materials and supplies. Tuition does not include the cost of health care or treatment.

(ii) The amount authorized for payment shall be the amounts charged by that institution for tuition

or for program costs, transportation and maintenance in accordance with the definitions set forth herein."

Section 6. The provisions of Sections 1 through 5 of this Act shall take effect July 1, 1977.

Section 7. Effective July 1, 1978, amend Chapter 31, Part I, Title 14 of the Delaware Code by striking the Chapter heading and by striking Sections 3101 through 3109 of said Chapter in their entirety and substituting in lieu thereof the following:

"CHAPTER31. EXCEPTIONAL PERSONS SUBCHAPTER I. Definitions

§3101. Definitions

The following words, terms and phrases, when used in this Chapter shall have the meanings ascribed to them except when the context clearly indicates a different meaning:

(a) 'Exceptional persons' means a handicapped person or a gifted and talented person, as defined herein.

(b) 'Free appropriate public education' means special education that is specially designed instruction including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions, and related services as defined by State Board of Education Rules and Regulations and as may be required to assist a handicapped person to benefit from an education that:

(1) is provided at public expense, under public supervision and direction, and without charge in the public school system;

(2) meets the standards of the State Board of Education as set forth in this Title or in the rules and regulations of the Board; and

(3) includes elementary, secondary, or vocational education in the State; and

(4) is individualized to meet the unique needs of the handicapped person.

The related services to be provided shall be based upon a program for each child as approved by the State Board of Education. Funds for such services are to be paid from the Educational Contingency Fund of the

State Board of Education.

(c) 'Gifted or talented person' means a person in the chronological age group four through twenty years inclusive, who by vitue of certain outstanding abilities is capable of a high performance in an identified field. Such an individual, identified by professionally qualified persons, may require differentiated educational programs or services beyond those normally provided by the regular school program in order to realize his or her full contribution to self and society. A person capable of high performance as herein defined includes one with demonstrated achievement and/or potential ability in any of the following areas, singularly or in combination:

(1) general intellectual ability;

(2) specific academic aptitude;

(3) creative or productive thinking;

(4) leadership ability;

(5) visual and performing arts ability;

(6) psychomotor ability.

(d) 'Handicapped person' means a person in the chronological age group four through twenty years inclusive, who because of mental, physical, emotional or learning disability problems as defined by the State Board of Education, requires special educational services in order to develop his or her capabilities.

(e) 'Person' means a child or other individual ages four through twenty years inclusive.

SUBCHAPTERII. General Provisions

§3110. Rules and Regulations

(a) The State Board of Education is designated as the State Agency that shall make rules and regulations to carry out the provisions of this and other Titles relative to the identification, evaluation, education, training, and transportation of exceptional persons including specific definitions for the categories of units for exceptional children authorized for funding in §1703 of this Title.

(b) The rules promulgated by the State Board of Education shall provide the criteria by which identified handicapped persons, ages four through twenty inclusive, shall be assigned to a public school facility, or, if otherwise eligible for admission, to an institution of another State agency, or released for authorized placement in a private school or agency, pursuant to Subchapter III of this Chapter.

§3111. The Advisory Council for Exceptional Citizens

The Governor shall appoint an Advisory Council to act in an advisory capacity to the State Board of Education and other State agencies on the needs of exceptional citizens. The General Assembly shall provide for the maintenance of the Council. The Council shall also serve in the capacity of the Advisory Panel as required by P.L. 94-142.

SUBCHAPTERIII. Handicapped Persons §3120. Handicapped persons; required provisions

The State of Delaware shall provide, in the school districts of the State or in other State institutions and agencies or in special programs and private agencies as established or approved by the State Board of Education, that each handicapped person as defined in this Chapter shall receive a free and appropriate public education

designed to meet his or her needs. The State Board of Education shall be the agency responsible for the implementation of this required provision.

§3121. Handicapped persons; special classes and facilities

Each school district and other State agencies responsible for the care of Delaware citizens shall provide and maintain, under appropriate regulations of the State Board of Education, special classes and facilities to meet the needs of handicapped persons as herein defined and recommended for special education or training who are residents of any geographical area within the State and who can be served by such special classes and facilities. The provisions of this and other sections of this Chapter and this Title may be carried out by assigning children who are residents of one school district to attend classes in facilities of another school district according to the provisions of Chapter 6 of this Title concerning tuition. Placement in a State agency that is not part of the public school system shall be in accordance with rules developed under §3110 of this Chapter.

§3122. Identification and reporting of handicapped person

Each school district shall be required to identify, locate, and evaluate, or reevaluate, any person residing within the confines of that school district who is handicapped, regardless of the severity of the handicap, and who is in need of special education and related services. The State Board of Education shall provide through rules and regulations that a practical method for carrying out the provisions of this section be developed. The identification system so developed shall provide information concerning the time and method of the evaluation or reevaluation

of the handicapped person and shall indicate the training, education, or related services he or she is receiving and the location of that training, education, or related services. The system shall further indicate any instance in which the person is not receiving training, education, or related services and the reason for that situation. Nothing in this Chapter or the rules and regulations issued thereunder shall authorize or require medical treatment of any person who objects, or in the case of a minor, whose parent or guardian objects thereto on religious grounds.

SUBCHAPTER IV. Gifted or Talented Persons

§3126. Gifted or Talented Persons; Rules and Regulations

The extent of programs and facilities provided for persons determined to be gifted or talented shall be in accordance with the rules and regulations of the State Board of Education."

Section 8. Effective July 1, 1978 amend Sections 3110 and 3111 of Chapter 31, Title 14, Delaware Code, by redesignating said Sections as Sections 3124 and 3125.

Section 9. (a) An amount of $763,000 is appropriated to the State Board of Education for carrying out the provisions of this Act during the fiscal year beginning July 1, 1977.

(b) This appropriation is a supplemental appropriation and the funds hereby appropriated shall be paid by the State Treasurer from the General Funds of the State of Delaware from monies not otherwise appropriated. Any monies appropriated herein which remain unexpended on June 30, 1978 shall revert to the General Fund.

Section 10. Except as set forth in Section 6 of this Act, the provisions of this Act shall take effect July 1, 1978.

Approved August 13, 1977.