Current through Register 1531, September 27, 2024
(1)
Reporting. The Department shall determine specific
protocols for school districts to report level of services and placements made
for eligible students. School districts shall use such protocols for the
purposes of reporting information only. No reporting protocol shall be used as
the basis for specifying services, delaying, or otherwise limiting services or
programs for eligible students.
(2)
Determining Placement. At the Team meeting, after the
IEP has been developed, the Team shall consider the identified needs of the
student, the types of services required, and whether such services may be
provided in a general education classroom with supplementary aids and/or
services or in a separate classroom or school. The Team shall consider all
aspects of the student's proposed special education program as specified in the
student's IEP and determine the appropriate placement to provide the services.
The Team shall determine if the student shall be served in an in-district
placement or an out-of-district placement and shall determine the specific
placement according to the following requirements:
(a) The decision regarding placement shall be
based on the IEP, including the types of related services that are to be
provided to the student, the type of settings in which those services are to be
provided, the types of service providers, and the location at which the
services are to be provided.
(b)
The placement selected by the Team shall be the least restrictive environment
consistent with the needs of the student. In selecting the least restrictive
environment, consideration must be given to any potential harmful effect on the
student or on the quality of services that the student needs.
(c)
Least Restrictive Environment
(LRE). The school district shall ensure that, to the maximum
extent appropriate, students with disabilities are educated with students who
do not have disabilities, and that special classes, separate schooling, or
other removal of students with special needs from the general education program
occurs only if the nature or severity of the disability is such that education
in general education classes with the use of supplementary aids and services
cannot be achieved satisfactorily.
(d)
In-district
Placement. The placement decision made by the Team shall indicate
the specific program setting in which services will be provided. The Team shall
first consider in-district settings such as a general education classroom, a
resource setting, a separate classroom, a work setting, a vocational school
program, and/or another type of setting identified by the Team as appropriate
and able to provide the services on the IEP in a natural or less restrictive
environment. If an in-district setting is able to deliver the services on the
IEP, the Team shall identify such placement and include such determination with
the proposed IEP.
1. The school district
shall determine specific instructional personnel and shall work jointly with
the Team to arrange the specific classroom or school, in order to implement the
placement decision and to assure that services begin promptly when parental
consent to the IEP and placement has been received.
2. The school district shall not delay
implementation of the IEP due to lack of classroom space or personnel, shall
provide as many of the services on the accepted IEP as possible and shall
immediately inform the parent in writing of any delayed services, reasons for
delay, actions that the school district is taking to address the lack of space
or personnel and shall offer alternative methods to meet the goals on the
accepted IEP. Upon agreement of a parent, the school district shall implement
alternative methods immediately until the lack of space or personnel issues are
resolved.
(e)
Placement Meeting. Upon developing the IEP, if the
needs of the student and the services identified by the Team are complex, and
the Team is considering an initial placement out-of-district or a different
setting for a student who has been served in an out-of-district program, the
school district may schedule a separate Team meeting to determine placement.
The placement meeting shall meet the participant requirements of federal
special education law as outlined at 34 CFR § 300.116(a)(1) and shall be
held within ten school days following the meeting at which the Team developed
the IEP. At the request of the parent, the placement meeting may be held at a
later date.
1. Any other school district that
may be financially or programmatically responsible for the student shall be
invited to participate in the placement meeting and shall receive notice of
such meeting at least five school days prior to the meeting. The Department or
other state agency involved with the student may designate a representative to
participate in the placement meeting.
2. Prior to the placement meeting, the school
district and parent shall investigate in-district and out-of-district placement
options in light of the student's needs and identified services
required.
3. At the placement
meeting, the district and the parent shall report on the investigation of
in-district and out-of-district options. If an in-district program can provide
the services on the IEP, such program shall be identified at the placement
meeting and provided by the district; if not, the placement Team shall identify
an out-of-district placement.
(f)
Out-of-District
Placement. If an out-of-district placement is designated by the
Team, the Team shall state the basis for its conclusion that education of the
student in a less restrictive environment with the use of supplementary aids
and services could not be achieved satisfactorily.
1. Students in out-of-district placements
shall be entitled to the full protections of state and federal special
education law and regulation. Out-of-district options include, but are not
limited to, special education schools approved under
603
CMR 28.09.
2. When an out-of-district placement is
identified by the Team, the determination shall ensure that the student's
placement is as close as possible to the student's home. The Team shall not
recommend a day or residential school program outside of the city, town, or
school district in which the student resides unless there is no suitable
program within the city, town, or school district. The school district shall
implement the placement decision of the Team and shall include consulting with
personnel of the school contemplated to provide the program for the student to
determine that the school is able to provide the services on the student's IEP.
The Team shall not recommend a specific program unless it is assured that the
adequacy of said program has been evaluated and the program can provide the
services required by the student's IEP. Team identification of specific
schools, however, shall not supercede LRE considerations, IEP considerations,
or requirements to give preference to approved programs as provided in 603 CMR
28.06(3)(d).
(3)
General Requirements for
Out-of-district Placements. For the duration of any student's
placement in an out-of-district setting in Massachusetts, the Administrator of
Special Education shall make a good faith effort to ensure that the student's
IEP is being appropriately implemented and that service delivery in the
out-of-district setting is aimed at assisting the student to meet the goals
identified on the student's IEP.
(a)
Program Oversight. The Department shall determine that
programs approved under
603
CMR 28.09 have appropriate policies,
procedures, and appropriately credentialled staff as may be necessary to
provide special education services to publicly funded students. The Department
shall investigate and resolve concerns raised through the Problem Resolution
System of the Department. The approval activities and oversight of the
Department for the approved programs does not relieve school districts of their
responsibility to monitor the programs of individual students enrolled in the
approved programs by the school districts. The approval activities and
oversight of the Department for the approved programs does not make the
Department a guarantor or insurer for services or programs provided to
individual students.
(b)
Individual Student Program Oversight. The school
district is required to monitor the provision of services to and the programs
of individual students placed out-of-district. Documentation of monitoring
plans and all 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.
(c)
Student Right to Full
Procedural Protections. School districts that place eligible
students in out-of-district programs retain full responsibility for ensuring
that the student is receiving all special education and related services in the
student's IEP, as well as all procedural protections of law and regulation
including, but not limited to, those specified in
603
CMR 28.09. Any Team meetings conducted during
the time that a student is enrolled in the out-of-district program shall be
initiated by the school district in coordination with the out-of-district
placement.
(d)
Preference to Approved Programs. The school district
shall, in all circumstances, first seek to place a student in a program
approved by the Department pursuant to the requirements of
603
CMR 28.09. Preference shall also be given to
approved programs located within the Commonwealth of Massachusetts if the
choice of such program is consistent with the needs of the student and choice
of such program complies with LRE requirements. No student in an out-of-state
placement as of June 1, 2000 shall be required to transfer to a facility in
Massachusetts unless such transfer is consistent with the student's IEP and the
LRE requirements of the law. When an approved program is available to provide
the services on the IEP, the district shall make such placement in the approved
program in preference to any program not approved by the Department.
(e)
Use of Unapproved
Programs. If the Team is unable to identify an appropriate
placement in an approved school, the Administrator of Special Education may
request assistance from the Department. Such request shall be in writing and
shall contain copies of all assessments from the evaluation or reevaluation,
the complete referral package that had been sent to approved schools, a listing
of all approved schools that had been considered, and the decision given by
such schools to refuse admission. A school district that places a student in a
program that has not been approved by the Department according to the
requirements under
603
CMR 28.09 must ensure that such programs and
services are provided in appropriate settings by appropriately credentialed
staff able to deliver the services on the student's IEP. Students placed by the
school district in such programs shall be entitled to the full protections of
state and federal special education law and regulation including, but not
limited to, those protections specified in
603
CMR 28.09 and 603 CMR 18.00:
Program
and Safety Standards for Approved Public or Private Day and Residential Special
Education School Programs. The following documentation is required and
may be reviewed by the Department of Elementary and Secondary Education at any
time:
1.
Search. The
Administrator of Special Education shall document the search for and
unavailability of a program approved by the Department under
603
CMR 28.09. The Administrator shall place such
documentation in the student record.
2.
Evaluation of
Facility. The Administrator of Special Education or his or her
designee shall thoroughly evaluate the appropriateness of any unapproved
facility prior to placement of the student in such program. Such evaluation
shall determine whether the unapproved facility can appropriately implement the
student's IEP in a safe and educationally appropriate environment. Such
evaluation shall additionally determine whether the unapproved facility can and
will provide the student with all the rights that are accorded to the student
under state and federal special education law. Such evaluation shall be
documented in detail and placed in the student record for review. To the extent
that this evaluation requires a site visit, such site visits shall be
documented and placed in the student record for review. The duty to evaluate
the appropriateness of any unapproved facility cannot be delegated to the
parents or their agents or the proposed unapproved facility. The school
district may, however, contract directly with a person to conduct such
evaluation activities.
3.
School District Approval to Operate a Private School in
Massachusetts. If services in an unapproved program are provided
in a school setting, the Administrator of Special Education must ensure that
such school has received approval from the local school committee under M.G.L.
c. 76, § 1 and that a copy of such approval is retained in the student
record.
4.
Notification
to the Department. Prior to placement, the Administrator shall
notify the Department of the intent to place the student and the name and
location of the proposed placement.
a.
Pursuant to the requirements for Compliance, Reporting and Auditing for Human
and Social Services at
808 CMR 1.00, the
Administrator shall obtain pricing forms required to set program prices for
programs receiving publicly funded students. Such pricing forms shall be
completed by the proposed placement and shall document that the price proposed
for the student's tuition is the lowest price charged for similar services to
any student in that program.
b. The
Administrator shall forward the notice of proposed placement and completed
pricing forms to the Department along with the information on the proposed
terms of the contract that will govern such placement. The Department shall
notify the district within ten days if there are any objections to such
placement, and if none, shall forward the pricing forms to the state agency
responsible for setting program prices. Such agency shall, according to its
procedures, set an approved price for publicly funded students and shall
forward such information to the school district making the placement.
c. The Department reserves the right to
request any additional documentation or information regarding student
placements in educational settings not approved under
603
CMR 28.09, including but not limited to
documentation of a monitoring plan pursuant to 603 CMR 28.06(3)(b) and a plan
detailing the time and resources necessary to establish or locate a program
able to meet the student's needs in the city, town or school district where the
student resides or in an approved program.
5.
Out-of-state. If
such services are provided in a placement outside of Massachusetts, and such
school has not received approval by the Department under
603
CMR 28.09, the Administrator of Special
Education must ensure that such school has received approval from the host
state. No placements of Massachusetts students may be made in out-of-state
programs without approval of the program by the host state or, if the host
state does not have an approval process, then the program must provide
documentation of reputable accreditation. The requirements of 603 CMR
28.06(3)(b) through (e), apply to all such placements.
6.
Department
Review. The Department shall periodically, and at its discretion,
review all required documentation and if such documentation is not available or
is not appropriate, the Department may take action pursuant to
603 CMR
28.03(7). Such a review,
however, does not make the Department a guarantor or insurer for services or
programs provided to individual students.
(f)
Written
contracts. School districts shall enter into written contracts
with all out-of-district placements. Each such contract shall include, but not
be limited to, the following terms:
1. The
out-of-district placement shall comply with all elements of the IEP for the
student and shall provide, in writing, to the Administrator of Special
Education detailed documentation of such compliance through completion of
required student progress reports.
2. The out-of-district placement shall allow
the placing school district to monitor and evaluate the education of the
student and shall make available, upon request, any records pertaining to the
student to authorized school personnel from the school district and the
Department in accordance with
603 CMR
23.00: Student Records.
3. The out-of-district placement shall allow
the placing school district and/or the Department to conduct announced and
unannounced site visits and to review all documents relating to the provision
of special education services to Massachusetts students at public expense.
Access to documents for the placing school district shall include general
documents available to the public, documents specifically related to the
student placed by such district, and other documents only to the extent they
are necessary to verify and evaluate education services provided at public
expense.
4. The out-of-district
placement shall afford publicly-funded students all the substantive and
procedural rights held by eligible students, including but not limited to those
specified in
603
CMR 28.09, and shall comply with all other
applicable requirements of
603 CMR
28.00 and applicable policy statements and directives
issued by the Department.
5. No
school district shall contract with any out-of-district placement that
discriminates on the grounds of race, color, religion, sexual orientation, or
national origin, or that discriminates against qualified persons with
disabilities.
(4)
Programs for Older
Students. The school district shall ensure that options are
available for older students, particularly those eligible students of ages 18
through 21 years. Such options shall include continuing education; developing
skills to access community services; developing independent living skills;
developing skills for self-management of medical needs; and developing skills
necessary for seeking, obtaining, and maintaining jobs. Such programs may have
an educational and/or vocational focus and shall be considered in-district
programs if the program is operated by the public school and offers the student
ongoing opportunities to interact with students or young adults without
disabilities. Participation in such options for students younger than age 18
shall not relieve the school district of its obligation to ensure that students
have access to instruction in the general curriculum.
(5)
Access to District
Programs. All students receiving special education, regardless of
placement, shall have an equal opportunity to participate in and, if
appropriate, receive credit for the vocational, supportive, or remedial
services that may be available as part of the general education program as well
as the non-academic and extracurricular programs of the school.
(6)
Instructional Grouping
Requirements. When eligible students aged five and older receive
special education services for some or all of the school day outside of the
general education environment, the school district shall make every effort to
maintain the student's access to the general curriculum and participation in
the life of the school. The school district shall devote resources to develop
the school district's capacity for serving such eligible students in less
restrictive alternatives.
(a) Programs serving
young children shall meet instructional grouping requirements of 603 CMR
28.06(7).
(b) The size and
composition of instructional groupings for eligible students receiving services
outside the general education classroom shall be compatible with the methods
and goals stated in each student's IEP.
(c) Instructional grouping size requirements
are maximum sizes and school districts are expected to exercise judgment in
determining appropriate group size and supports for smaller instructional
groups serving students with complex special needs. When eligible students are
assigned to instructional groupings outside of the general education classroom
for 60% or less of the students' school schedule, group size shall not exceed
eight students with a certified special educator,12 students if the certified
special educator is assisted by one aide, and 16 students if the certified
special educator is assisted by two aides.
(d) Eligible students served in settings that
are substantially separate, serving solely students with disabilities for more
than 60% of the students' school schedule, shall have instructional groupings
that do not exceed eight students to one certified special educator or 12
students to a certified special educator and an aide.
(e) After the school year has begun, if
instructional groups have reached maximum size as delineated in 603 CMR
28.06(6)(c) and (d), the Administrator of Special Education and the certified
special educator(s) providing services in an instructional group may decide to
increase the size of an instructional grouping by no more than two additional
students if the additional students have compatible instructional needs and
then can receive services in their neighborhood school. In such cases, the
Administrator must provide written notification to the Department and the
parents of all group members of the decision to increase the instructional
group size and the reasons for such decision. Such increased instructional
group sizes shall be in effect only for the year in which they are initiated.
The district shall take all steps necessary to reduce the instructional groups
to the sizes outlined in 603 CMR 28.06(6)(c) and (d) for subsequent
years.
(f) The ages of the youngest
and oldest student in any instructional grouping shall not differ by more than
48 months. A written request for approval of a wider age range may be made to
the Department, which may approve such request.
(g) Instructional group sizes in all programs
approved under
603
CMR 28.09 shall be limited to those outlined
in 603 CMR 28.06(6)(d), and no such instructional groups shall have an age
range greater than 48 months.
(7)
Programs for Young
Children. The school district shall ensure programs are available
for eligible children three and four years of age. Such programs shall be
developmentally appropriate and specially designed for children ages three and
four years.
(a) The requirements of
603 CMR
28.00 shall apply to the extent that they can be
adapted to reflect the fact that such children may not be receiving services in
the public school.
(b) School
districts are encouraged to accept referrals from the Department of Public
Health, other agencies, and individuals for young children when or before the
child turns 2% years old in order to ensure continuity of services and to
ensure the development and implementation of an IEP for eligible children by
the date of the child's third birthday in accordance with federal
requirements.
(c) The school
district may elect, consistent with federal requirements as outlined at 34 CFR
§ 300.323(b), to use the format and services of the Individualized Family
Service Plan (IFSP), if appropriate, for an additional year as a means of
transitioning eligible children to public school services.
(d) The Team may allow a child to remain in a
program designed for three and four year old children for the duration of the
school year in which the child turns five years old (including the summer
following the date of the child's fifth birthday).
(e)
Type of Setting -
Inclusionary. Inclusionary programs for young children shall be
located in a setting that includes children with and without disabilities and
shall meet the following standards:
1.
Services in such programs may be provided in the home, the public school, Head
Start, or a licensed childcare setting.
2. For public school programs that integrate
children with and without disabilities, the class size shall not exceed 20 with
one teacher and one aide and no more than five students with disabilities. If
the number of students with disabilities is six or seven then the class size
may not exceed 15 students with one teacher and one aide.
(f)
Type of Setting -
Substantially Separate. Substantially separate programs for young
children shall be those programs for three and four year olds that are located
in a public school classroom or facility that serves primarily or solely
children with disabilities. Substantially separate programs shall adhere to the
following standards:
1. Substantially
separate programs shall be programs in which more than 50% of the children have
disabilities.
2. Substantially
separate programs operated by public schools shall limit class sizes to nine
students with one teacher and one aide.
(8)
Transportation
Services. The term transportation providers shall include the
driver of the vehicle and any attendants or aides identified by the Team. The
school district shall provide a qualified attendant on each vehicle that
transports one or more students in need of special education, when such
attendant is recommended by the Team in accordance with
603 CMR
28.05(5)(b).
(a) The district shall not permit any
eligible student to be transported in a manner that requires the student to
remain in the vehicle for more than one hour each way except with the approval
of the Team. The Team shall document such determination on the IEP.
(b) The school district shall give
transportation providers clear, written information on the nature of any need
or problem that may cause difficulties for a student receiving special
transportation along with information on appropriate emergency measures that
may be necessary.
(c) The district
shall provide an in-service training program for transportation providers. Such
training program shall acquaint transportation providers with the needs of the
students they are transporting and shall be designed to enable the
transportation providers to meet those needs. All transportation providers
shall be required to complete such in-service training prior to providing
transportation services to eligible students.
(d) The district shall make sufficient
inspections of equipment and unannounced spot checks throughout the year to
ensure compliance with these requirements, and with all applicable state and
federal safety and equipment laws, including M.G.L. c. 90.
(9)
Educational Services in
Institutional Settings. The Department shall provide certain
special education services to eligible students in certain facilities operated
by or under contract with the Department of Mental Health, the Department of
Youth Services, County Houses of Corrections, or the Department of Public
Health. The Department shall retain the discretion to determine based upon
resources, the type and amount of special education and related services that
it provides in such facilities.
(a) Decisions
about admission to and discharge from institutional facilities are within the
authority of institution administrators, not the school district. However,
school districts are not relieved of their obligations to students in such
settings. School districts are responsible for students in institutional
settings in accordance with
603 CMR
28.10. Such students have the same rights for
referral, evaluation, and the provision of special education in accordance with
state and federal law as students in public schools.
(b) Non-educational services such as
residential, medical and clinical services shall be provided by the state
agency that controls the facility. The provision of such services shall be
governed by the state agency in accordance with applicable laws, interagency
agreements, or agency policies.
(c)
Where a student's IEP requires a type or amount of service that the facility
does not provide, it shall remain the responsibility of the school district
where the father, mother or legal guardian resides, except as provided in
603 CMR
28.10(3)(c)1. and 2., to
implement the student's IEP by arranging and paying for the provision of such
services.
(d) The responsible
school district shall coordinate with the Department and ensure that the
student receives an evaluation, an annual review, and special education
services as identified by the Team at a Team meeting convened by the
responsible school district. The Department shall participate in Team meetings
for any student receiving special education services in an institutional
setting. To the extent that special education services are provided by the
Department in such facilities, the Department will make every effort to provide
services consistent with the student's IEP and available resources.