Program Quality Assurance Services
Compliance and Monitoring
Out-of-State Special Education Programs
Local school districts, through the Massachusetts special education Team process, have full responsibility to determine what services are necessary for a student with special education needs. Placement decisions are made at the local level and districts are expected to give preference to approved in-state programs. If the local school district Team determines that necessary services cannot be provided in Massachusetts, then local school districts may identify appropriate out-of-state special education programs. Currently, all New England states have approval requirements for private special education schools located in their state. According to federal special education law, all state education agencies have oversight responsibilities for programs serving students with disabilities.
B. Regulatory and Authorizing Environment
The Massachusetts legislature has consistently appropriated funds to assist in the costs of special education services. The ESE is the state agency responsible for the administration of any funds provided to ESE for this purpose.
The Office of the Comptroller, by policy and historical procedure, requires documentation from the Massachusetts Executive Office of Administration and Finance, Operational Services Division (OSD) of a rate approval prior to authorizing release of state funds from ESE. ESE approves out-of-state programs primarily to enable OSD to set rates, and only then for the purposes of disbursing funds directly from accounts managed by ESE.
C. School District Responsibility
Massachusetts special education regulations are clear that primary responsibility to ensure appropriateness of placement for students with disabilities rests with the local school district. A school district may place a student in an out-of-state program if no appropriate special education program is available in Massachusetts and the district believes that the out-of-state program is able to provide the services on the approved IEP for the student. In the case of an out-of-state program that has been approved by the host state, the responsible school district must request and maintain in the student's file current documentation of the host state's approval. Further, the school district must ensure that the tuition charged for out-of-state programs is either approved by the host state, or is the lowest rate charged to students with similar presenting needs.
D. Massachusetts State Funding and State Approval
An out-of state program, in cooperation with a Massachusetts school district, may initiate activities with ESE to obtain program approval. Once approval is obtained from the ESE, out-of-state programs are eligible for rate approval through OSD. Program approval from ESE and pricing approval from OSD are always necessary for private programs enrolling publicly funded Massachusetts special education students.
At the request of the out-of-state program, and in coordination with a Massachusetts school district, the ESE may "approve" out-of-state programs upon receipt of documentation showing (a) the intent of a Massachusetts school district to place a student in the out-of-state program, and (b) approval from the host state to operate as a private special education school. ESE may issue a three (3) year "approval" to the out-of-state program and will forward such approval to the OSD for pricing. ESE may deny any approval if it deems that circumstances warrant such action. ESE program approval will remain current for either three (3) years from the date of the initial approval or until the end of the program session (if placement is made mid-session), whichever is longer. Out-of-state programs may accept other Massachusetts students without additional documentation during the three (3) year period of approval. Out-of-state programs with lapsed approvals from the ESE must reapply if a continuing three (3) year approval is desired. If the out-of-state program is not approved by the host state, the approval process becomes subject to authorization of pricing requirements outlined below.
Once a Massachusetts "approval" status for a program is no longer current, the OSD will no longer be obligated to set annual rates until documentation is updated showing (a) presence of Massachusetts enrolled students and (b) approval from the host state. It is the responsibility of the Massachusetts school district or the out-of-state program to initiate and/or reinitiate this three (3) year approval.
Tuition Rate Approval:
Rate approval from OSD will be contingent on current ESE approval and submission of annual pricing documentation. The Massachusetts OSD will issue annual rate approval letters that will be used in state purchasing activity in relation to tuition payments to out-of-state programs.
For out-of-state programs existing in states with a state agency rate setting procedure, the OSD will require documentation showing the rate set by the host state and will approve such rate for Massachusetts students.
If the host state has no rate setting procedures, the OSD will generally accept a tuition rate consistent with the tuition that would be paid for students enrolled in the program by the host state and will require documentation demonstrating that the rate is the lowest rate charged for the service. Massachusetts' OSD will exercise judgment as to whether additional documentation may be required for programs operating in states with no rate approval procedures.
E. Program Responsibility & Monitoring:
The Massachusetts school district placing a student in an out-of-state special education program remains responsible to ensure that the program and services are appropriate. The school district is responsible to initiate a contract with the out-of-state program, arrange for services, conduct Team meetings and annual review procedures, and make whatever site visits it deems necessary to ensure appropriate services for the student, including verification of the use of qualified personnel.
The ESE will monitor out-of-state programs in the following manner: ESE will accept evidence of approval status from the host state as sufficient evidence of active state oversight. However, if a problem is identified, the ESE has duties to conduct investigations and ensure that Massachusetts students receive a free appropriate public education (FAPE). In such cases, the ESE may request the Massachusetts school district to conduct an investigation, may contact the Department of Elementary and Secondary Education in the host state, or may conduct an independent onsite investigation if it deems such action necessary. Massachusetts program approval status may be withdrawn by ESE at its discretion.
As part of ESE's oversight responsibilities, in the course of routine Coordinated Program Review procedures in all districts, ESE will conduct targeted reviews of Massachusetts LEA documentation, LEA monitoring of out-of-state programs, and other procedures ensuring appropriate services for students placed in out-of-state special education programs.
F. Requests for Authorization of Pricing for Out-of-State Programs:
No placements of Massachusetts students may be made in out-of-state programs without approval of the program by the host state. If the host state does not have an approval process, then the program must provide to the placing school district documentation of the program's reputable accreditation. All Massachusetts general requirements for out-of-district placements [603 C.M.R. 28.06 (3)] apply to such placements, and, for those programs that are not approved by Massachusetts pursuant to the procedures above, the requirements for the use of unapproved programs [603 C.M.R. 28.06(3)(e)] also apply. In such circumstances, ESE will request that OSD authorize a price for an individual student's placement. Such requests for authorization of pricing of out-of-state programs must be renewed each year.
If further guidance is needed to complete Massachusetts Department of Elementary and Secondary Education requirements regarding the approval of private out-of-state programs providing special education services to Massachusetts students, including requests for authorization for the pricing of such programs, please consult with the Program Quality Assurance Services Coordinator of Private School Approval, (781) 338-3700.