Out-of-State Special Education Programs Policy and Procedure

Massachusetts Department of Elementary and Secondary Education (DESE) policy and procedure regarding the approval of Out-of-State (OOS) programs providing special education services to Massachusetts students, including requests for authorization for pricing such programs based on 603 CMR 28.09 (1)(a), are outlined below.

Updated: October 2024

A. Background

Local school districts, through the Massachusetts Special Education IEP Team process, have full responsibility for determining what special education services are necessary for an eligible student with disabilities. Placement decisions are made at the local level, and districts must give preference to approved in-state programs. If the local school district Team determines that necessary special education services cannot be provided in Massachusetts, then local school districts may identify appropriate OOS special education programs. Currently, all New England states have approval requirements for special education schools in their state.

B. Regulatory and Authorizing Information

The Massachusetts legislature has consistently appropriated funds to assist in the costs of special education services, primarily through the Circuit Breaker Program. DESE is the state agency responsible for administrating any funds provided for this purpose.

The Office of the Comptroller requires documentation from the Massachusetts Executive Office of Administration and Finance, Operational Services Division (OSD) of a rate approval prior to authorizing DESE to reimburse local school districts with circuit breaker funds. DESE's approval of OOS programs enables OSD to set rates per its regulations and disburse funds directly from accounts managed by DESE.

C. School District Responsibility

Massachusetts special education regulations are clear that the primary responsibility to ensure the appropriateness of placement for students with disabilities rests with the local school district. A school district may place a student in an OOS program if no appropriate special education program is available in Massachusetts and the district determines that the OOS program is able to provide the services on the approved IEP for the student. In the case of an OOS program the host state has approved, the responsible school district must request and maintain current documentation of the host state's approval in the student's file. Further, the school district must ensure that the host state approves the tuition charged by the OOS programs and is the lowest rate charged to students with similar presenting needs.

D. Massachusetts State Funding and State Approval

An OOS program, in cooperation with a Massachusetts school district, may initiate activities with DESE to obtain program approval. Once approval is obtained from DESE, OOS programs are eligible for rate approval through OSD in accordance with its regulations. Program approval from DESE and pricing approval from OSD is always required for OOS programs enrolling publicly funded Massachusetts special education students.

Program Approval:

At the request of the OOS program and in coordination with at least one Massachusetts school district, DESE may approve OOS programs to serve Massachusetts students upon receipt of documentation showing the following:

Current Placement by a Massachusetts school district through an Individual Student Program (ISP) or the intent to place by a Massachusetts school district of an eligible student in the OOS program;
Current approval from the host state to operate as a special education school. If the host state does not have an approval process, then the program must provide documentation of reputable accreditation; and

Current tuition rate documentation as approved by the host state or, when applicable, documentation meeting the requirements in 603 CMR 28.09 (1)(a)1c. DESE may issue a three (3) year approval for the OOS program to serve Massachusetts students and will forward such approval to the OSD for pricing. DESE may withhold any approval if it deems that circumstances warrant such action. DESE program approval will remain current for up to three (3) years from each renewal date. OOS programs may accept other Massachusetts students without additional approval documentation during the approval period; annual or updated host state documentation or information may be required. OOS programs with lapsed approvals from DESE must reapply for a new approval if enrollment of any Massachusetts students is later requested.

If approval of an OOS program lapses, OSD's obligation to set annual rates will also cease. OSD may resume rate-setting when all required documentation outlined above is submitted. It is the responsibility of the OOS program to initiate and/or reinitiate this approval.

Tuition Rate Approval:

Rate approval from OSD will be contingent on current DESE approval to serve Massachusetts students and submission of annual pricing documentation to OSD. The Massachusetts OSD will issue annual rate approval letters that will be used in state purchasing activity in relation to tuition payments to OOS programs.

For OOS programs existing in states with a state agency rate setting procedure, OSD will require documentation showing the rate set by the host state and will approve such rate for Massachusetts students.
If the host state has no rate setting procedures, OSD will generally accept a tuition rate consistent with the tuition that would be paid for students enrolled in the program by the host state and will require documentation demonstrating that the rate is the lowest rate charged for the service. OSD will exercise judgment as to whether additional documentation may be required for programs operating in states with no rate approval procedures.

E. Responsibility & Monitoring

Responsibility:

The Massachusetts school district placing a student in an OOS special education program remains responsible for ensuring that the program and services are appropriate. The school district is responsible for initiating the following:

The school district is required to monitor the provision of services and program of individual students placed out-of-district.
Written monitoring plans and all documentation evidencing actual monitoring shall be placed in the files of every eligible student who has been placed out-of-district. To the extent that this monitoring requires site visits, such site visits shall be documented and placed in the students' files for review.
The duty to monitor out-of-district placements cannot be delegated to parents or their agents, to the Department, or to the out-of-district placement.
The school district may, however, contract directly with a person to conduct such monitoring.

Monitoring:

DESE will monitor OOS programs in the following manner:

DESE will accept evidence of approval status from the host state as sufficient evidence of active state oversight. However, if a problem or credible allegation is identified relating to an approved OOS program. DESE will conduct investigations or otherwise follow up as it deems appropriate as part of its due diligence to ensure that Massachusetts publicly-funded students receive a free appropriate public education (FAPE).
In such cases, DESE may request that the Massachusetts school district conduct an investigation, contact the Department of Elementary and Secondary Education (or its equivalent) in the host state, or conduct an independent onsite investigation if DESE deems such action necessary.
DESE may request updated documentation and/or data as part of the ongoing monitoring process.
Massachusetts program approval status for OOS may be withdrawn by DESE at its discretion.

As part of DESE's oversight responsibilities, DESE conducts monitoring and targeted reviews of Massachusetts school district documentation relating to provision of special education services to students in OOS, such as records relating to school district monitoring of OOS programs and/or other relevant policies and procedures.

F. Requests for Authorization of Pricing for OOS Programs

No placements of Massachusetts publicly-funded students may be made in OOS programs without approval of the program by the host state. If the host state does not have an approval process, then the program must provide DESE and the placing school district documentation of the program's reputable accreditation. All Massachusetts general requirements for out-of-district placements as outlined in 603 C.M.R. 28.06 (3) apply to such placements, and, for those programs that are not approved by Massachusetts pursuant to the procedures above, the requirements for the use of unapproved programs as outlined in 603 C.M.R. 28.06(3)(e) also apply. In such circumstances, DESE will request that OSD authorize a price for an Individual Student Program. Such requests for authorization of pricing of OOS programs must be renewed each year.

If further guidance is needed to complete DESE requirements regarding the approval of OOS programs providing special education services to Massachusetts publicly-funded students, including requests for authorization for the pricing of such programs, please consult with the Office of Approved Special Education Schools (OASES) at (781) 338-3700 or at oases1@mass.gov .

Last Updated: October 2, 2024