The Massachusetts Board of Elementary and Secondary Education
Proposed Amendments to Special Education Regulations, 603 CMR 28.10, to Align with ESSA Foster Care Provisions
At the meeting of the Board of Elementary and Secondary Education (Board) on November 28, 2017, I will ask the Board to vote to solicit public comment on proposed amendments to the Massachusetts Special Education Regulations — specifically, 603 CMR 28.10 — pertaining to the assignment of school district responsibility for students in foster care who have Individualized Education Programs (IEPs). The proposed amendments are intended to:
- clarify programmatic and financial responsibility for the special education services of students in foster care;
- resolve a conflict between the current state regulation and new provisions in federal law (ESSA, the Every Student Succeeds Act) relating to students in foster care; and
- simplify, and provide consistency and predictability for, the process of assigning responsibility to school districts for the special education of students in foster care.
The proposed amendments and a motion are attached to this memo. With the Board's approval, the Department of Elementary and Secondary Education (Department) will solicit public comment on the proposed amendments in accordance with the Administrative Procedure Act. After reviewing the comments and making adjustments as needed, I expect to bring the proposed amendments back to the Board for final action in February 2018.
Background
Under the state special education law, Mass. General Laws Chapter 71B, § 3, the school committee of every city, town, or school district is responsible for identifying school age children residing therein who have a disability, and providing or arranging for the provision of special education for them. M.G.L. Chapter 71B, § 5 states that "any school committee which provides or arranges for the provision of special education" pursuant to section 3 shall pay the costs. The statute authorizes the Board to adopt regulations to carry out the statutory mandate.
Our state regulations set forth the details allocating programmatic and financial responsibility for eligible students based upon residency and enrollment. The Board first adopted these regulations in the 1970s and has amended them several times since, to address changing needs. Under the regulation (603 CMR 28.10), depending on where a student lives, responsibility for the student's special education services may fall to the district in which the student currently resides, the district in which the student's parent or legal guardian resides, and in some cases responsibility may be shared between them.
For the majority of students who live with their parent(s) or legal guardian in a city, town, or regional school district and who are enrolled in and attend school there, the responsibility for special education rests with the school committee of that city, town, or school district. For students in less traditional living arrangements, including those who reside in hospitals or other institutional settings, residential schools, those who are homeless, and students in foster care, the regulations define which school committee(s) is/are responsible programmatically and financially for the students' special education.
In these non-traditional living situations, the programmatic and financial responsibility for a special education program may be split between two school districts. The district with programmatic responsibility must ensure that evaluations, IEPs, and services are provided for the eligible student as required under special education law. The district with financial responsibility must pay for the student's special education program but may not require use of a specific program.
The regulations also authorize the Department to assign, or a school district or agency to request the Department's assistance in assigning, a city, town, or school district to be responsible for students in more complex situations. "Assignment" of a school district under the regulations is based upon where the student lives and the district in which the student is enrolled. The Department carries out this assignment function after the student is enrolled and receiving services, so that ambiguity about school district responsibility does not impede the student's receipt of services described in an IEP. Each year, the Department makes approximately 400 school district assignments.
Summary of proposed amendments
The proposed amendments to 603 CMR 28.10 apply specifically to programmatic and financial responsibility for students in foster care and account for new rights extended to them by the federal Every Student Succeeds Act (ESSA). The proposed amendments align our state regulations with the ESSA foster care provisions, and will help students in foster care benefit from greater consistency in their educational experience.
The foster care provisions of ESSA took effect on December 10, 2016. Among other changes, ESSA guarantees to students in foster care the right, based on the student's best interest, to continue to attend the school the student was attending at the time the student entered foster care or to enroll in the district in which the foster care setting is located. Under ESSA therefore, students may reside in one district and attend school in another. By amending our state regulations on school district responsibility for students in foster care who need special education, we will account for these new situations, align the state regulations with the ESSA requirements, and provide a smoother, more predictible, and simpler application of the process of assigning responsibility to school districts for the special education of students in foster care.
The proposed amendments will accomplish these goals in the following ways:
The proposed regulations consolidate all foster care rules in a single regulation, proposed as 603 CMR 28.10(5)(b). This is consistent with ESSA's broad definition of foster care that does not distinguish between type of setting or duration of placement.
Under the proposed regulations, school district responsibility depends upon whether a student continues to attend the school of origin or leaves the school of origin and attends a new school. If the student continues to attend the school of origin, programmatic and financial responsibility stay with the school district(s) that was/were responsible prior to the student's entry into foster care or change in foster care setting, and this district stays responsible for as long as the student continues to attend the same school. If the student is enrolled by the Department of Children and Families (DCF) in the district where the foster care setting is located, or if a student in foster care attends a new school in the same district, then the district in which the student is presently enrolled becomes programmatically responsible and the district where the parent or legal guardian resides is financially responsible.
The proposed regulations promote stability and continuity for students whose best interest is to remain in their school of origin. The current regulations immediately shift programmatic responsibility to the district where the student resides in foster care. For students whose best interest is to remain in their school of origin, this yields an illogical result - assignment of programmatic responsibility to a new district that does not know the student, and which is not responsible for providing general education services. The proposed regulations remedy this problem for students who continue to attend their schools of origin by maintaining programmatic and fiscal responsibility as it was before the student entered foster care. (See no. 2, above.) This allows the student to continue to be served by the district with which the student has an established relationship. Combined with students' rights under ESSA to remain enrolled in their districts of origin, the proposed regulations minimize situations in which frequent changes in DCF placement are accompanied by enrollment changes and new assignments of special education responsibility.
The proposed regulations promote clear and predictable assignments of programmatic responsibility when a student's best interest is to leave the school of origin. Current regulations shift programmatic responsibility to the district where DCF has placed a student in care or custody, regardless of whether the student continues to attend the school of origin. The proposed regulations shift programmatic responsibility only when a student's attendance changes following a best interest determination. In doing so, the proposed regulations create a more appropriate juncture for shifting responsibility from one district to another.
The proposed regulations promote clear and predictable assignments of financial responsibility. The current regulations assign financial responsibility differently depending on the type of foster care setting in which the student is placed (e.g., foster homes or temporary care settings). Thus, financial responsibility can bounce among districts in which different care settings are located or back and forth between districts each time a child moves to a different foster care setting. The proposed regulations shift financial responsibility to the district of residence of the parent(s) or legal guardian only when the student in foster care enrolls in a new school. Financial responsibility then remains with this district for the duration of the student's time in foster care. This proposed rule mitigates unpredictable budgeting implications for districts, provides greater consistency of district responsibility by minimizing the frequency of responsibility changes, and assigns responsibility more fairly based upon the residence of the parent/guardian, and not on the location in which DCF happens to place the student.
The proposed regulations clarify the provisions relating to students who attend day or residential approved private schools, by consistently applying the term "enrollment" to "districts" and the term "attendance" to "schools." This distinction is important for students whose school of origin is an approved private school located outside the district in which the student was enrolled at the time of a foster care placement. Under the proposed regulations, if the student continues to attend the private school while in foster care, the same district that placed the student in the private school, and which is familiar with the student and his or her needs, will remain programmatically responsible.
The proposed regulations include provisions similar to those in 603 CMR 28.10(4) that describe billing responsibilities and require that districts with financial responsibility be included in the IEP Team process. These are familiar rules and will help districts to facilitate collaboration and communication about students' programming.
Outreach and consultation
In drafting the proposed amendments, the Department reached out to staff at the Bureau of Special Education Appeals, the Department of Children and Families, the State Association of Administrators of Special Education, the Massachusetts Association of School Committees, the Massachusetts Association of School Superintendents, the Federation for Children with Special Needs, and attorneys who represent school districts. With the Board's authorization of a public comment period, the Department will solicit further comments and suggestions.
Next steps
With the Board's approval, the Department will solicit public comment on the proposed amendments. We will also share the proposed amendments with the Board's Special Education Advisory Council (SAC) and Steering Committee, both of which are scheduled to meet on December 12, 2017, for review and comment. After reviewing all the comments and determining whether further changes are needed, I plan to bring the amendments back to the Board in February 2018 for final adoption.
A redlined version of 603 CMR 28.10 is attached, along with a motion to solicit public comment on the proposed amendments. Senior Associate Commissioner Russell Johnston; Teri Williams Valentine, Director of Special Education Planning and Policy; and Department Legal Counsel Josh Varon will be at the Board meeting on November 28 to answer your questions.
Enclosures:
