Guidance on 603 CMR 28.07(7)

To:	Special Educational Surrogate Parents and Other Interested Parties
From:	Marcia Mittnacht, State Director of Special Education
Date:	February 27, 2012

In light of questions that have recently come to my attention concerning 603 CMR 28.07(7), I offer the following guidance on the purpose of this regulation, the circumstances in which it applies, and the responsibilities it assigns to school districts.

Consistent with federal special education regulations¹, the Massachusetts Department of Elementary and Secondary Education's Special Education Surrogate Parent ("SESP")² program assigns individuals to be the special education decision makers for certain children in the custody of the Department of Children and Families, and for other children whose parents or guardians are otherwise not available. As I explained in an April 13, 2009 letter to Administrators of Special Education:³

SESPs have the same rights and responsibilities as a parent with respect to the special education decision-making process. The SESP may meet with their assigned student, observe proposed or current programs, attend school meetings, review school records, and approve the IEP for the student to discuss changes if deemed appropriate.

The "Department" promulgated 603 CMR 28.07(7) in order to seek assistance from school districts in identifying individuals to volunteer as SESPs. 603 CMR 28.07(7) subparagraphs (a) and (b) apply to all potential SESPs regardless of whether a school district recruited or identified them. These sections establish the primary responsibility of the SESP, the Department's authority to assign SESPs to students, and ensure that potential SESPs lack conflicts of interest. Subsections (a) and (b) were included in this regulation to ensure that districts understood the essential purpose of SESPs when identifying individuals who may want to volunteer. Other regulations that apply to all SESPs are documented in the federal regulations, 34 CFR 300.519.

In contrast to 603 CMR 28.07(7) subparagraphs (a) and (b), 28.07(7)(c) applies only when a school district identifies an SESP that the Department subsequently assigns to a student enrolled in the same district⁴. Under these circumstances, 603 CMR 28.07(7)(c) requires the school district to reimburse the SESP for "reasonable expenses" related to travel (mileage, tolls and parking) to and from Team and other necessary meetings regarding the student's special education, and observation of proposed or current programs, copying of school records, long-distance phone calls , postage, and other types of out-of-pocket expenses associated with the "responsibilities as an educational surrogate parent."

603 CMR 28.07(7)(c) does not require school districts to pay a retainer or other fees for an SESP to hire an attorney for a due process hearing. If requested, the IDEA permits courts to award attorneys' fees to prevailing parties in due process hearings. 20 U.S.C §1415(i)(3)(B)(i). This fee shifting provision in the IDEA applies to parents and SESPs in the same manner. Attorneys' fees are not "reasonable expenses" for which SESPs can seek reimbursement from school districts under 603 CMR 28.07(7)(c).

If you have any questions about this memorandum, please feel free to contact me at: mmmittnacht@doe.mass.edu.

¹ Surrogate Parents: 34 CFR 300.519

² Although 34 CFR 300.519 refers to "surrogate parents," Massachusetts regulations refer to "Special Education Surrogate Parents" in order to reflect the limited scope of educational decisions that SESPs can make. SESPs have authority to make a range of special education decisions such as consent to evaluations and IEPs. SESPS do not have authority to give consent to other school -related activities such as permission to attend a field trip, absences, or permission to disclose a student photo.

³ See memorandum: Guidance on 603 CMR 28.07(7)

⁴ 603 CMR 28.07(7)(c) does not apply to SESPs identified by the Department, other state agencies, or entities other than school districts. In addition, 603 CMR 28.07(7)(c) does not apply to an SESP identified by a school district, but assigned by the Department as an SESP to a student in a different school district.

Last Updated: February 27, 2012