The Massachusetts Board of Elementary and Secondary Education
Proposed Amendments to Special Education Regulations, 603 CMR 28.10, to Align with Every Student Succeeds Act (ESSA) Foster Care Provisions
At the meeting of the Board of Elementary and Secondary Education (Board) on March 27, 2018, I will ask the Board to vote to adopt the amendments to the Massachusetts Special Education Regulations at 603 CMR 28.10, pertaining to the assignment of school district responsibility for the special education services of students in foster care who have Individualized Education Programs (IEPs). These regulations would take effect on July 1, 2018.
In November 2017, the Board voted to send the proposed amendments out for public comment. The Department of Elementary and Secondary Education (Department) has reviewed the comments that were received and has revised the proposed amendments as needed.
Assignment of School District Responsibility
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 rules for allocating programmatic and financial responsibility for students eligible for special education 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 section 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.
For students 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.
Section 28.10 also authorizes the Department to assign, and school districts or agencies to request the Department's assistance in assigning, a city, town, or school district to be responsible for students in more complex living situations. 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. The Department makes approximately 400 school district assignments annually.
Overview of Proposed Amendments
The federal Every Student Succeeds Act (ESSA) has introduced additional considerations about where a student in foster care has the right to attend school. A student in foster care — whether a foster home, group home, state-ordered residential setting, temporary care unit, or similar setting — has the right to stay in the school s/he was attending upon placement in foster care or a change in foster care setting, regardless of where the foster care setting is located, if it is in the student's best interest to do so.
Given this change under federal law, it is necessary to amend the state regulations that currently do not provide for situations, now permitted under ESSA, in which a student in foster care resides in one district but is enrolled in and attends school in another. 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 Department provided the Board with additional information about the new ESSA requirements and the scope of the proposed regulations at the November 2017 meeting, at which the Board authorized the Department to seek public comment.
Comments and Response
Two individuals, both of whom are attorneys representing school districts, submitted comments during the public comment period. While they mainly concern issues outside of the scope of these amendments, the comments prompted the Department to clarify two areas of potential ambiguity. The Department also corrected a typo. Except for these minor changes, the proposed regulations are identical to the version released for public comment in November 2017. The comments are attached, along with a summary of the comments and the Department's response to them.
Next Steps
This spring the Department will issue guidance to assist districts in implementing the amended regulations, which will take effect on July 1, 2018 and will apply prospectively, not retroactively. This means that the Department will not change existing determinations of district responsibility, nor apply the new regulations if a student's foster care setting changes before July 1, 2018. Also, the current regulations will apply to assignments made during the summer of 2018 that affect extended school year services, as part of a student's 2017-2018 IEP. All other decisions made under the amended regulations will be effective for the 2018-2019 school year. These implementation dates will provide a clear transition from the current regulations to the amended regulations on and after July 1, 2018.
Combined with the guidance 
on rights extended under ESSA to students in foster care issued jointly with the Department of Elementary and Secondary Education and the Department of Children and Families, the amendments to 603 CMR 28.10 will ensure that students in foster care will receive a more continuous and stable education experience, focused on the students' best interests, and featuring fewer changes in enrollment. For districts, the amended assignment rules should be more predictable and easier to apply for purposes of planning and budgeting.
Attached to this memo are clean and redlined versions of 603 CMR 28.10, copies of the public comment, a report analyzing and summarizing the public comment, and a motion to adopt the proposed amendments, effective July 1, 2018. Senior Associate Commissioner Russell Johnston; Director of Special Education Planning and Policy Teri Williams Valentine; and Department Legal Counsel Josh Varon will be at the Board meeting to answer your questions.
Enclosures: