Firm Announcements and Law Updates

Legislative Activity: A Busy Time on Beacon Hill for Public Schools

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Governor Baker signed into law House Bill No. 4056, “An Act Relative to Substance Use, Treatment, Education and Prevention,” on March 14, 2016. Referred to as the “Opioid Law,” this statute imposes several new responsibilities on school districts and the Department of Elementary and Secondary Education (DESE). Perhaps the most talked about aspect of the new law - verbal screenings of students by schools - is contingent on appropriation, and, if funding occurs, must be implemented by the start of the 2017 – 2018 school year. The other aspects of the Opioid Law affecting public schools are not subject to appropriation, and need to be implemented now, because this was declared to be an emergency law. Below are details on the changes that need to occur on an immediate basis:

Concussion/Head Injury Student Education and Adult Training Programs

Currently, each public school district must comply with the requirements of M.G.L. c. 111, § 222 and 105 CMR 201.000, in regards to the prevention, training, management, and return to activity decisions regarding students who incur head injuries while involved in extracurricular athletic activities. The Opioid Law amends M.G.L. c. 111, § 222 by requiring all school districts to now also distribute written educational materials provided by the Bureau of Substance Abuse Services on the dangers of opiate use and misuse “to all students participating in an extracurricular athletic activity prior to the commencement of their athletic season.” Additionally, every individual who currently participates in the mandatory annual interscholastic athletic head injury safety training program (coaches; trainers; athletic directors; school marching band directors; any physicians/nurses/school volunteers assisting with an extracurricular athletic activity; and parents/legal guardians of students who participate in extracurricular athletic activities) must receive these educational materials on the dangers of opioids as part of their annual head injury safety training.

Substance Use Prevention and Abuse Education

Public schools have had an ongoing legal duty to develop a policy on substance use prevention and educating students about the dangers of substance abuse, pursuant to M.G.L. c. 71, § 96. The Opioid Law now provides school districts with some support in the development of those policies. It requires DESE, in consultation with the Department of Public Health (DPH), to now “provide guidance and recommendations to assist schools with developing and implementing effective substance use prevention and abuse education policies.” This guidance must be made available on DESE’s website, and it must be updated regularly to reflect current research and best practices.

Under the Opioid Law, each school district must now file with DESE its substance abuse prevention and education policy. The law continues to require providing notice to parents of the district’s policy and posting the policy on the district’s website.

Driver’s Education Courses

Also amended by the Opioid Law was the state statute that governs driver’s education courses, M.G.L. c. 71, § 13D. These courses, which are often part of high school safety education programs, now must contain a drug education component. Specifically, each driver’s education course “shall include a module on the science related to addiction and addictive substances, including the impact of psychoactive substances on the brain and the effect of such substances on a person while operating a motor vehicle.”

Verbal Screening of Students

The bulk of the Opioid Law pertains to verbal screening of students by each city, town, regional school district, charter school and vocational school. Importantly, both time and money are pre-conditions to the implementation of the law’s verbal screening provisions. While the bill was being debated, Governor Baker made clear his position against imposing “unfunded mandates” on public entities:

“‘I’m not wild about unfunded mandates,’ Baker said. ‘I certainly support the idea of having the state provide support for communities that wish to participate in this, [but] unless we as a commonwealth choose to pony up the money to pay for a program like that I don’t think it’s fair or appropriate for us to just tell locals to do anything.’” See Bob Salsberg, Baker has Reservations on Senate Drug Screening Plan.

The Opioid Law specifies that all requirements related to verbal screening are “subject to appropriation.” Given the heightened focus in Massachusetts on combatting what has been termed an opioid epidemic, coupled with the suggestions that have been made in the media regarding potential viable funding sources, it is likely, although not guaranteed, that appropriation will be made for the verbal screening provisions of the law. That being said, the law also specifies a delayed implementation date for the verbal screenings: the start of the 2017 – 2018 school year.

If the verbal screening components of the law go into effect, DESE, in consultation with DPH, will be responsible for approving the verbal screening tools, recommending the grade levels appropriate for screening, and creating a notice and opt-out form. School districts will be required to: notify parents of students who will be screened before the start of the school year; conduct the verbal screenings annually for two (2) different grade levels of students; maintain confidentiality in accordance with the law; provide students, parents and guardians with an opportunity to opt-out of the screening; and report all de-identified screening results to DPH within ninety (90) days of the screening.

As noted above, the Opioid Law includes a provision that enables either a parent/guardian or a student to opt out of the screening. They are entitled to do this by written notification at any time either before or during the screening. Furthermore, information gleaned from the verbal screenings may not be placed within individual student records. All information is to remain confidential, and may not be disclosed without prior written consent of the student, parent, or guardian, except in cases of immediate medical emergency or as otherwise required by state law.

Due to the de-identified documentation of data and strict confidentiality requirements, any information obtained by a verbal screening conducted pursuant to the Opioid Law should not impact an individual student’s interscholastic athletic eligibility under Chemical Health Rule # 62 of the Massachusetts Interscholastic Athletic Association (MIAA). Principals will continue to have authority to enforce their MIAA Chemical Health policies in regards to information obtained from sources other than this verbal screening.

If appropriation is made to enable the implementation of the verbal screening provisions, screening of some sort must occur in every district by the 2017 – 2018 school year. A district may use an alternative substance use screening program if it provides DESE with a written explanation of its alternative program and the reasons why the DESE/DPH verbal screening tool is not appropriate for the district. Otherwise, the expected screening will be the DESE/DPH verbal screening tool. Districts can anticipate spending substantial time in the upcoming school year to gear up for the potential roll-out of this 2017 – 2018 mandate, just as gearing up for the roll-out of the revised restraint regulations required significant time. Staff trainings on consent and confidentiality, parental notifications, student handbooks, documentation, and reporting will all be implicated.


The Massachusetts Legislature has recently discussed other bills that, if enacted, also could have significant effects on school districts. These bills pertain to public records requests and police body cameras. Please note that these have not been enacted into law. These are bills that we have followed due to their potential impact on our clients.


As entities that are subject to public records requests, public school districts should be aware of the potential changes coming to our 1973 public records state statute. A push is on to modernize this statute and to align it with others in the nation. Revisions being proposed and debated in House Bill No. 3858 relate to: responding to a request by producing electronically maintained records in an electronic format (which, for school districts, may create a very cumbersome redaction process); identifying a point person to be responsible for responding to requests; reducing costs for the requestor; and allowing for an award of attorneys’ fees when a public entity fails to comply with the law.

Also noteworthy in the realm of public records, state regulations that govern fee imposition for copies of public records were recently revised, and put into effect as of February 29, 2016. Included in the regulatory changes is a significant decrease in the fee that may be charged for black and white paper copies (single or double-sided). The maximum permissible fee was reduced from twenty (20) cents per page to five (5) cents per page. See 950 CMR 32.06.


House Bill No. 2170, which addresses the use of police audiovisual body cameras, is noteworthy since many school districts have police officers serving as School Resource Officers (SROs). This bill seeks to impose requirements on the use of police body cameras, in regards to issues such as: when recordings may/must be made; notification to a person being recorded; confidentiality/public disclosure of recordings; and maintenance of recordings. Although this particular bill can be considered “dead” for the current legislative session, it will likely be re-filed in the next legislative session.

Liam Bayer