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Proposed Regulations on Innovation Schools, 603 CMR 48.00

To:Members of the Board of Elementary and Secondary Education
From:Mitchell D. Chester, Ed.D., Commissioner
Date:April 16, 2010

As the Board is aware, the Act Relative to the Achievement Gap (Chapter 12 of the Acts of 2010), which was signed into law in January, rewrote the statutes on underperforming schools and school districts and the charter school statute. The act also created a new statute, Mass. Gen. Laws c. 71, § 92, establishing "innovation schools" - public schools operating within a school district with increased autonomy and flexibility to improve school performance and student achievement. The statute directs the Board of Elementary and Secondary Education to promulgate regulations necessary to implement innovation schools, including regulations pertaining to a new "virtual public school" online learning option. We are presenting the proposed regulations to the Board this month for initial review and a vote to solicit public comment.

Because the statute is fairly explicit on the requirements and procedures governing innovation schools in traditional "bricks and mortar" buildings, most of the proposed regulations deal with virtual innovation schools. In this context, we are defining virtual schools as schools in which students receive all or substantially all educational instruction on-line. These regulations are not intended to cover students who attend a "bricks and mortar" public school and who take one or more on-line courses to augment their school's course offerings. Many public schools in Massachusetts, particularly at the high school level, already offer such opportunities, and no additional state oversight is required in those instances.

Numerous states have experimented with virtual schools in various forms, and several proposals have been advanced in Massachusetts in recent years. These regulations will allow initial experimentation with this new model, while providing a framework that safeguards the interests of students and taxpayers. It is important to note that for all innovation schools, including virtual schools, the local school committee is given the authority and the responsibility for approving the innovation plan and for monitoring compliance and performance against that plan. This is in contrast to our charter school model, where that authority and responsibility rests with the state Board of Elementary and Secondary Education.

I would like to highlight four particular provisions in the proposed regulations, each of which is likely to attract significant comment:

  • Section 603 CMR 48.05(1) provides that a student may enroll in a virtual school only if the superintendent of the sponsoring district and the student's home district agree that the student, based on his or her individual circumstances, would benefit from this unique learning environment. Some would argue that virtual schooling should be an option for any parent who chooses it, and that model is used in some states. Others would argue that there are educational and developmental benefits to having students physically present in the same location, and that virtual schooling should be focused on those students with unique needs where the benefits outweigh the disadvantages. I have chosen the latter position, at least for this initial roll-out. I expect that virtual education will evolve in the next few years, as both technology and our understanding of the pedagogy improve. As the concept proves itself, we will have the opportunity to expand its reach if we so desire.

  • Section 603 CMR 48.05(7) ties the tuition rate for out-of-district students "attending" a virtual school to the school choice tuition rate, which is currently capped at $5,000 per student, plus additional amounts as needed to provide special education services. Some may argue that such an amount may not be sufficient to provide a quality program. At the same time, I am cognizant that a virtual school has the potential to enroll large numbers of out-of-district students and I am concerned about the potential fiscal impact on the paying districts.

  • Section 603 CMR 48.05(2)(d) requires the sponsoring district to ensure that all enrolled students have broadband access, but does not require the district to pay for such access in every instance. We expect sponsoring districts will be creative in establishing models for providing the necessary services without unnecessarily inflating the cost of the program.

  • Finally, I would like to call to your attention section 603 CMR 48.03(3), which is under the general provisions that would apply to all innovation schools. This section sets out a process by which a school committee may ask the Board of Elementary and Secondary Education to waive any state law or regulation if such a waiver is needed to accomplish the goals of a particular innovation school plan. This unusual provision stems from this statutory language in M.G.L. c.71, s.92(c):

    An Innovation School shall operate in accordance with the law regulating other public schools, except as the law conflicts with this section or any innovation plans created thereunder.

    Although the statute does not specifically require Board approval for innovation plans that conflict with existing laws, I believe that requiring such approval through the Board's regulatory authority is a reasonable and necessary safeguard to prevent the possible misuse of this very broad statutory power. We did consider selecting only certain specific statutory provisions for which Board approval would be required, but there are literally hundreds of statutes that potentially impact public schools, and I felt it would be impractical to do.

In drafting these regulations, I have been aided by the advice and counsel of an advisory committee on virtual schools that I appointed earlier this year. This group included superintendents, representatives of the professional associations, other educators and researchers, and legislators, all knowledgeable on the subject of virtual education. I am grateful for their assistance.

Attached to this memorandum is a suggested motion to solicit public comment on the proposed regulations. We plan to accept public comment through June 4, and then discuss and vote on the final regulations at the June 22 meeting.

Deputy Commissioner Jeff Nellhaus and Associate Commissioner Jeff Wulfson will be present at the Board meeting to answer your questions.


M.G.L. c.71, s.92
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Proposed Regulations on Innovation Schools, 603 CMR 48.00 (Update: Regulations adopted by the Board of Elementary and Secondary Education on July 21, 2010)
Motion to solicit public comment
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Advisory Committee on Online Learning/Virtual Schools

Last Updated: August 6, 2010
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