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Education Laws and Regulations

603 CMR 28.00: Special Education

28.06: Placement and Service Options

(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 in 603 CMR 18.00. 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/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.

    (i) 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.

    (ii) 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.

    (iii) 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 two-and-one-half 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 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.

Regulatory Authority:
M.G.L. c. 69, § 1B; c. 69, §§ 1J and 1K, as amended by St. 2010, c. 12, § 3; c. 71, § 38G.



Last Updated: April 1, 2014
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