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Education Laws and Regulations

603 CMR 28.00: Special Education

28.09: Approval of Public and Private Day and Residential Special Education School Programs

(1) Approval from the Department. The Department may grant approval to public and private day and residential schools providing special education services (special education schools) in Massachusetts in order to ensure that a continuum of special education programs is available to Massachusetts students with disabilities. Approval shall be granted by the Department in accordance with the provisions of 603 CMR 28.09. Upon receipt of approval special education schools are eligible to enroll publicly funded Massachusetts eligible students. Approval does not relieve special education schools of their obligation to comply with other applicable state or federal statutory or regulatory requirements or requirements set forth in their contracts with referral sources.

(a) Limited approval for out-of-state programs. The Department may grant approval to public and private day and residential schools providing special education services (special education schools) in states other than Massachusetts in the following circumstances.

  1. 1. An out-of-state program, in cooperation with a Massachusetts school district, seeks approvaI from the Department. The following documentation is required.

    (i) Written verification by the Massachusetts school district of its intent to place an eligible Massachusetts student in the out-of-state program.

    (ii) Documentation from the program that the host state has approved the program to provide services to students with disabilities. If the host state does not have an approval process, then the program must provide documentation of reputable accreditation.

    (iii) Documentation of tuition rate approved by the host state. If the host state does not approve or otherwise regulate tuition rates, then the program shall provide documentation meeting the requirements of the Massachusetts agency responsible for setting rates for special education schools and showing that the proposed rate is the lowest rate charged to any enrolled student for similar services.

  2. Upon receipt of required documentation, the Department may grant approval for a period of time not to exceed three years from the date of application. The Department may withhold such approval if it deems that circumstances warrant such action. In such case, the Department will notify the Massachusetts school district and the out-of-state program of its actions and the reason for such actions.

  3. Once approved by the Department, out-of-state programs may accept Massachusetts students without additional documentation during the three-year period of approval. It is the responsibility of the out-of-state program, in cooperation with a Massachusetts school district, to reinitiate the three-year approval status.

(b) Approval for Massachusetts special education schools. Approval for schools operating in Massachusetts includes meeting all of the requirements of 603 CMR 28.09 and 603 CMR 18.00. The Department reserves the right to withhold or deny approval if, in its discretion, circumstances warrant such action.

(2) Eligibility. Any individual, not-for-profit corporation or agency, or proprietary corporation or public educational collaborative or school district may file an application to establish and/or operate a special education school in Massachusetts to serve eligible students with disabilities. The Department shall require justification of the need for such program and may establish standards for approval eligibility, including but not limited to, standards for minimum or maximum size of such program.

(a) Residential programs shall demonstrate initiation of a request for a license with the state agency responsible for licensing programs providing residential childcare. Such state agency shall be responsible for licensing the residential non-educational component of the program.

  1. The Department of Elementary and Secondary Education shall not grant final approval of the educational component of the residential school until all licensing activity for the residential component has been completed and a license has been awarded.

  2. The educational component of a residential program must reflect the 24-hour nature of the service and indicate how residential services and educational services will be fully coordinated.

(b) The Department shall develop approval standards that shall specify the types of information, policies, procedures, and assurances to be included in any application for approval. The application shall include, but not be limited to:

  1. A demonstration of the need for such a program;

  2. The population to be served. Such population shall, at a minimum, consist of a majority of students who have been determined eligible for special education services.

  3. The anticipated special education and related services that the program will provide;

  4. The legal and financial stability of the program;

  5. The safety and appropriateness of the physical plant for the student population that the school will serve;

  6. Documentation of qualified staff; and

  7. Procedures detailing how the school will provide education services for the identified population of students.

(c) For public special education school programs, the public school or educational collaborative must demonstrate that the program is developed for programmatic reasons and not because of lack of space at an in-district location.

(3) Department review and approval. The Department shall review for approval each application submitted and shall consult with other state agencies as necessary. The Department may, at its discretion, schedule site visits, interviews, or other inspection of the proposed program. The Department may deny approval; grant temporary, provisional, or full approval; or grant probationary approval. The Department shall provide the applicant with a written notice of its actions and the reasons for such actions.

(a) Temporary approval/program pricing. The Department, upon granting temporary approval to private special education schools, shall forward such approval, together with a description of approved program elements for the educational component of the program, and applicable pricing elements for the residential component of the program, if any, to the state agency responsible for program pricing.

(b) Provisional approval. If provisional approval is granted, the Department shall indicate the specific conditions that shall be met and shall establish a time limit not to exceed six months within which the program shall meet those conditions. In no case shall approval be given unless the applicant can demonstrate to the satisfaction of the Department that the health and safety of the students is protected and the school is able to carry out the provisions of each student's IEP.

(4) Probationary approval. The Department may place the program on probationary status if it becomes aware of conditions at the school that, in the Department's judgment, compromise the program's ability to provide a safe, healthy and appropriate educational environment. In such circumstances, the Department shall provide written notice of the probationary status, the circumstances that caused the Department to take such action, and the actions necessary to correct the problem.

(a) Health and safety issues. When, in the Department's judgment, conditions at the school threaten the health or safety of the students in the program, acceptance of any additional eligible students (intake) may be prohibited and the Department shall establish a time not to exceed 14 days within which the program shall correct the problem.

(b) Educational issues. When, in the Department's judgment, conditions at the school compromise the program's ability to provide an appropriate education but do not threaten the health and safety of the students, the Department shall establish a time limit up to 90 days during which the program shall correct the problem. The Department shall determine if it is necessary to close intake during this period. The Department shall not close intake for more than 60 days in any 12-month period without a full review of the approval status of the school.

(c) Notification requirements. Within two school days of receipt of notice from the Department placing the program's approval on probation, the program shall provide notification to the parents of all enrolled Massachusetts students, all Massachusetts school districts with enrolled students, and officials of Massachusetts human service agencies or agencies of other states with responsibility for any students at the school. Notification shall state that the school has been assigned probationary status; that intake is closed, if applicable, and the reasons for such status.

(d) Completed corrective action. At the end of the time period for corrective action or when the issue giving rise to probationary status is resolved, whichever is sooner, the Department may reinstate the approval status of the program, change the approval status to provisional, or withdraw approval. The Department shall provide written notification of its action to the special education school.

(e) Request for reconsideration. Within one month of receipt of a written request for reconsideration of any Department action in relation to probationary status, the Department shall consider the request and make formal written response. The Department may, at its discretion, hold a hearing on the facts, make site visits, or issue an alternative remedy.

(5) Disclosure of information.

(a) An approved special education school shall make available to the Department, on request, information on all aspects of the school's program(s), the certification or credentials of its staff, and the individual records of enrolled Massachusetts students.

(b) The approved special education school shall also maintain on site and provide, on request, documentation of a safety inspection of all buildings by the Department of Public Safety or the local building inspector, an annual fire safety inspection from the local fire department, and a lead paint inspection, if applicable. More frequent inspections may be required at the discretion of the Department.

(c) Prior to any substantial change in program or physical plant, the special education school shall give written notification of intent to change to the Department. Notice shall be given with sufficient time to allow the Department to assess the need for the proposed change and the effects of such change on the educational program. The Department shall provide response to the approved program within thirty days if such change may affect the approval status of the program.

(6) Public information and postings. Each approved special education school shall maintain on site and make available for public review the following:

(a) Program information including a statement of purpose, a general description of the educational program, an organizational chart, and tuition information;

(b) Documentation of the current approval and or licensing status;

(c) Documents granting authority to operate the school, including documents that fully identify ownership, and, as applicable, the names of officers, boards, charters, partnership agreements, articles of organization, and by-laws;

(d) All required policies and procedures; and

(e) First aid, medical, and emergency procedures. The special education school shall conspicuously post first aid and emergency procedures, including emergency telephone numbers and location of nearest telephones within each building.

(7) Educational staffing requirements. An approved special education school program shall meet the requirements of 603 CMR 18.00 related to staffing, staff training, and personnel policies and shall demonstrate that its organizational structure provides for the effective and efficient operation of the school, supervision of school staff, and supervision of students. The school staff shall at all times provide appropriate supervision of students while they are engaged in any school related activity on or off school grounds.

(a) At least one staff member shall be designated as the educational administrator for the program. The educational administrator shall either possess licensure as a special education administrator or as a special educator and shall have a minimum of a master's degree in special education or a related field; and shall have a minimum of one year of administrative experience. Such person shall be assigned to supervise the provision of special education services in the school and ensure that the services specified in each student's IEP are delivered. The educational administrator shall be relicensed pursuant to the requirements of 603 CMR 44.00 and shall be required to obtain supervisor approval of his/her Professional Development Plan pursuant to 603 CMR 44.04.

(b) Teaching staff shall have teaching licensure appropriate to meet the needs of the population served and which is provided pursuant to the licensure requirements under 603 CMR 7.00. Teaching staff shall be relicensed pursuant to the requirements of 603 CMR 44.00. For the purposes of relicensure, teaching staff shall be subject to the same requirements as teachers in Massachusetts public schools and shall be required to obtain supervisor approval of Professional Development Plans pursuant to 603 CMR 44.04. At least half of the teaching staff shall be licensed in special education areas appropriate to the population served at the school; other teaching staff may be licensed in other educational areas, in order to provide for content expertise in the general curriculum.

(c) The Department may require a higher proportion of licensed special educators if, in the opinion of the Department, the population requires more specialized services. To the extent that teaching staff is providing special education services, such services shall be provided, designed, or supervised by a special educator.

(d) Staff providing or supervising the provision of related services shall be appropriately certified or licensed in their professional areas.

(e) Instructional groupings and student/teacher ratios shall not exceed the class size standards set forth at 603 CMR 28.06(6) and (7). The Department may impose additional limits, if, in the opinion of the Department, the population requires more specialized services.

(f) The special education school shall have a written plan for staff orientation and training that is consistent with the needs of the student population and provides, on average, at least two hours per month of relevant training for all staff including non-professional staff. Initial staff orientation shall include provision for training in emergency procedures, behavior management procedures, and requirements related to student protections as provided in 603 CMR 28.09(12). The special education school shall maintain written documentation of training provided and staff attendance at training as well as documentation of training received outside of the school. Upon request, such documentation shall be readily available for review by the Department.

(8) Educational facilities and materials. Approved special education schools shall provide the facilities, textbooks, equipment, technology, materials, and supplies needed to provide the special education and related services specified on the IEPs of enrolled students. If specialized materials or equipment needed solely for an individual student are necessary, the special education school may enter into an agreement for the provision of such materials or equipment by the school district enrolling the student. Approved schools shall additionally meet all facility requirements of 603 CMR 18.00.

(9) Educational program requirements.

(a) All approved special education schools shall meet or exceed the student learning time requirements for public school students set forth at 603 CMR 27.00 and shall ensure that such requirements are met for individual students unless the student's IEP requires otherwise. In addition to meeting the student learning time requirements, all ten month programs must run a minimum of 180 school days; 11 month programs a minimum of 198 school days and 12 month programs a minimum of 216 school days exclusive of weekends, holidays, and vacations.

(b) Each approved special education school shall ensure that all teaching staff have an understanding and knowledge of the general curriculum expectations and learning standards of the Massachusetts Curriculum Frameworks and that such knowledge is incorporated into the educational programs of the special education school.

(c) All approved special education schools shall ensure that there are flexible procedures and mechanisms that maximize opportunities for enrolled students to gain the capacity to return to a less restrictive educational program. Such mechanisms may include, but are not limited to, a capacity for part-time attendance at a neighborhood public school or other community program or a period of transition from one program option to a less restrictive program option.

(d) All approved special education schools shall ensure that there are written procedures outlining how such schools will ensure that enrolled students also participate in state assessment programs in accordance with the assessment participation information provided on the student's IEP. Such procedures shall include how the approved school will provide for accommodations or alternate assessments when required.

(10) Student Records. Approved special education schools shall keep current and complete files for each publicly funded enrolled student and shall manage such files consistent with 603 CMR 23.00: Student Records and M.G.L. c. 71, § 34H.

(11) Policies and procedures. In addition to the written procedures required for residential schools by the state agency responsible for licensing residential programs providing childcare, and written procedures required by 603 CMR 18.00, all approved special education schools shall maintain on site a policies and procedures manual, and shall provide written notice to parents of enrolled students that copies of such policies or procedures are available on request. Policies and procedures shall additionally include the procedures required in 603 CMR 28.09(9) and emergency procedures, admissions procedures, behavior management procedures, procedures regarding suspension or termination of the student's placement, and orientation procedures for parents and students as required under 603 CMR 18.00 and the following:

(a) Personnel policies, including procedures for hiring, discipline, supervision, evaluation, handling complaints, and dismissal of staff. Procedures on hiring shall include a description of the steps the school will take to obtain, consider, and act upon information related to convictions for criminal offenses for any prospective staff members whose responsibilities bring them into direct contact with students in the school.

(b) If applicable, transportation procedures that ensure that vehicles are safe, insured, and operated by qualified and trained individuals, and that students are transported in a safe manner that is responsive to individual student's needs and provisions of their IEPs.

(12) Student Protections. Students shall be entitled to protections and standards in accordance with 603 CMR 18.00. In addition approved special education schools shall observe the following requirements:

(a) Serious Incidents - Immediate Notification and Reporting. In the event of serious injury or death of a student, criminal activity on the part of a student or staff member, or other serious incident affecting the well-being of any student, the approved special education school shall immediately notify, by telephone and by letter, the parents, the sending school district(s), any state agency involved in student care or program placement, and the Department of Elementary and Secondary Education.

(b) Emergency termination of enrollment. The special education school shall not terminate the enrollment of any student, even in emergency circumstances, until the enrolling public school district is informed and assumes responsibility for the student. At the request of the public school district, the special education school shall delay termination of the student for up to two calendar weeks to allow the public school district the opportunity to convene an emergency Team meeting or to conduct other appropriate planning discussions prior to the student's termination from the special education school program. With the mutual agreement of the approved special education school and the public school district, termination of enrollment may be delayed for longer than two calendar weeks.

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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