Program Quality Assurance Services
Compliance and Monitoring
Question and Answer Guide
Fall 2002 PQA Area Meetings of Administrators of Special Education
Questions Gathered from Twenty-two Area Meetings of Administrators of Special Education November and December 2002|
Answers Prepared by The Office of Special Education Planning and Policy Development Office of Student Assessment and Program Quality Assurance Services
Topic: Out of District Placements and Diplomas
Q 1: Local school district standards and out-of-district placement standards for receipt of high school diploma are often not the same. Differences many times are around the number of years a student is required to take a particular subject or the availability of particular type of course (e.g., 3 years of science or two years of a foreign language requirement). How can these differences be reconciled?
A 1: Please refer to the Department's Special Education Administrative Advisory 2002-4R regarding the application of local graduation requirements to students placed out-of-district. Note particularly that, despite differences in local standards for graduation, the award of a state graduation diploma is dependent in every case upon successful attainment of a competency determination through passage of the MCAS testing program. However, by choosing to send a student to an out-of-district program, the public school district is accepting the out-of-district program as sufficient to meet local requirements that are necessary for graduation in addition to the competency determination. It is always best practice to discuss in IEP Team meetings any issues related to the necessary access to particular courses of study for the purpose of meeting state and local graduation requirements.
Q 2: Can a local school district refuse to give a local high school diploma to a student who has been placed by that district in an out-of-district program when that student has met MCAS competency requirements?
A 2: No. Again, refer to Administrative Advisory 2002-4R noted above for the basis of this answer.
Q 3: Who determines if a student with disabilities placed out-of-district is eligible to meet the local district diploma standards?
A 3: A local school district may not impose separate local graduation requirements on students it places in such programs. Again, as discussed in Administrative Advisory 2002-4R, by proposing to place a student in an out-of-district program, the district effectively agrees to abide by the graduation standards of that program coupled with the responsibility to see to it that the student has opportunity to participate in the MCAS testing program. Therefore, if the student meets all graduation standards of the out-of-district program and passes the MCAS test, the student is eligible to receive that program's high school diploma and/or a high school diploma issued by the school district responsible for that student.
Q 4: What is the status of a special education student who the school feels is eligible to receive a diploma, but rejects the IEP proposal to graduate? What is "stay put" in this case?
A 4: A proposed IEP is not a proposal for graduation. If a student meets local graduation requirements and passes the MCAS test, the responsible school district has an obligation to graduate the student unless there is some other mutually agreeable arrangement between the district and the parent (or student if over 18 years of age) or unless the student disputes his or her eligibility to graduate. In this case, if there is a disagreement as to whether or not the student should graduate, i.e., the student challenges that the graduation requirements have been met, then stay put during the pendency of the dispute before the BSEA is a student receiving services, not as a graduated student.
Q 5: The recent Department Advisory on the granting of diplomas to students in out-of-district programs provides the possibility for a student to receive two diplomas (the out-of-district program diploma and the district diploma). Why does the Department provide for this possibility?
A 5: The granting and receiving of a high school diploma is an exceedingly important matter for many parents and students. In some cases, the granting agency of the diploma is an especially important aspect of this important event in the life of a student. It is the Department's belief that where an eligible student wishes to receive a high school diploma from an out-of-district program and the placing school district, there is no legal inconsistency with this practice, and there is no harm done to the student or the diploma granting agencies.
Q 6: Is there any difference between receiving a diploma from a private school and from a public school if the private school's graduation standards are met and the student passes the MCAS test?
A 6: There is effectively no legal difference between the two types of diplomas.
Q 7: What is the responsibility of collaboratives with regard to the granting of high school diplomas?
A 7: Educational Collaboratives are entities created under the authority of their member public school districts and the Board of Education and do not have legal authority to grant high school diplomas independent of the determination of a student's responsible school district.
Topic: IEPs, IEP Meetings, Special Education Evaluation,
Independent Educational Evaluations (IEE),
And Special Education Notice Requirements
Q 8: If a parent refuses to provide consent for an initial evaluation, does a district have to refer the matter to the BSEA?
A 8: No. Under this circumstance, a referral to the BSEA is inconsistent with federal special education requirements.
Q 9: Is the federal entitlement to an independent evaluation at public expense described in the Department's Parent's Rights Brochure?
A 9: Yes. It is described on pp. 4 and 5.
Q 10: Is there a Internet link to rate setting information at the state's Operational Services Division web site for special education pricing and policies?
A 10: Yes. It is located at http://www.mass.gov/anf/budget-taxes-and-procurement/oversight-agencies/osd/special-education-pricing.html .
Q 11: Why does the Department use the negative term, "refuse" on the IEP N2 form in regard to a decision not to honor a parental request in matters related to the identification, evaluation and placement of a student?
A 11: The term is used in federal special education regulatory language, and the Department of Elementary and Secondary Education has, therefore, used the same term.
Q 12: The state's regulatory standard for the "immediate" provision of an IEP to a parent at the conclusion of a Team meeting is difficult to meet. What is the Department doing to address this regulatory requirement?
A 12: The state adopted this requirement in response to OSEP's finding of noncompliance regarding the former 10-day timeframe for providing IEPs to parents. A recent Program Quality Assurance Services communication to a school district on this topic is located on the Web at http://www.doe.mass.edu/pqa/ta/2002-0725letter.html .
Q 13: Is the IEP PL1 Form an appropriate form to use to inform parents of the location of Extended Evaluations provided under state regulation and may Extended Evaluations be conducted in out-of-district locations?
A 13: The IEP form PL-1 should not be used. The location of an Extended Evaluation should be recorded instead on the IEP form EE-1. Refer to question #3 on this form for guidance in this regard. Extended evaluations may be conducted in out-of-district programs.
Q 14: In Massachusetts can a district move forward without a parent's signed consent to implement a newly proposed IEP for a student previously determined to be eligible for special education as long as the district can document its multiple efforts to secure this consent?
A 14: No. The district is permitted under these circumstances to implement only the last approved IEP during the pendency of its efforts to document any denial of FAPE with the Bureau of Special Education Appeals.
Q 15: If a district documents its multiple efforts and multiple methods of trying to obtain parent consent to an IEP after 30 days, and the district has made the judgment that FAPE is not being denied by continuing to implement the last agreed upon IEP, then must the district send the unsigned IEP to the BSEA?
A 15: Yes. The IEP and associated local documentation of its efforts to secure parental consent must be documented to the Bureau of Special Education Appeals in consideration of the fact that all IEPs for a subsequent year are developed to describe updated goals and benchmarks to be addressed during the next IEP period. Since all IEPs are presumably designed to provide FAPE, all unsigned IEPs for which documentation of attempts to secure parental consent exists, must be sent to the BSEA. A statement from the district documenting the required meeting at which it determined a denial of FAPE must also be provided to the BSEA. Note that the parent must also be invited to the meeting at which this determination is made.
Q 16: What action should a school district take when it cannot determine eligibility for special education within the 45-school working day time frame?
A 16: By law initial determination of eligibility or no eligibility for special education must be made within 45-school working days. If the Team determines that additional assessments are needed, they may recommend the completion of such assessments. Subsequent discussion of assessment results could result in a changed eligibility determination. However, the initial determination must be made within 45-school working days.
Q 17: Many times parents sign and date consent forms for special education evaluation well before actually delivering them to the district. Considering the implications of this type of delay, what date must be used in calculating the 45-school working day timeframe for the completion of an evaluation, development and proposal of an IEP?
A 17: The evaluation, development and proposal of an IEP must be completed "within 45 school working days after receipt (emphasis added) of the parent's written consent" according to the requirements of 603 CMR 28.05(7). It is, therefore, prudent for school districts to date stamp the N1A form upon its receipt from the parent.
Q 18: The directions for the Department's IEP Notices on p. 9 lists the term "Emergency Evaluation" along with the other junctures for the use of the N1 form. Since MA no longer makes reference to "emergency evaluation" in our state regulations, why is the term used in the IEP directions?
A 18: Although no longer referenced in state special education regulations, there may be a need for expedited evaluations, hence the use of the term in the IEP directions.
Q 19: What is the correct IEP form for responding to a request for an Independent Education Evaluation (IEE)?
A 19: An individual letter from the district is sufficient to document the district's response to a parent's request for an IEE. If the parent is requesting the IEE and the district is not challenging that request, then notice is not required because the school district is neither proposing nor refusing a requested action. A letter to the independent evaluator with a copy to the parent or a letter to the parent regarding how to instruct the evaluator to contact the district or a record of a phone conversation should be sufficient. Paying for the IEE is not a documentation requirement -- it is an action requirement. If the district is refusing the request for an IEE, it must use form N2, the refusal form and include its intent to go to the BSEA to defend its evaluation.
Q 20: Must the full Team reconvene if a parent disagrees with something in the proposed IEP and wants it changed before they will give consent? If the Team is not expected to reconvene in this circumstance, how can the district minimize the appearance of the Administrator of Special Education changing an IEP Team decision?
A 20: Current state regulation [603 CMR 28.05(7) (a)(1)] provides that after the conclusion of the Team meeting a parent and school district representative may meet regarding any part of the IEP with which a parent disagrees, and if mutually agreed, the district may amend its initially proposed IEP for the parent's consent. To minimize the potential appearance that the Administrator of Special Education has unilaterally changed the IEP, agreed upon changes made pursuant to this regulation could be documented in a written note from the Administrator.
Q 21: What obligation does a district have to send all notices, progress reports and report cards, IEPs, Team meeting invitations, etc., to both parents when they are separated or divorced, whether living in the same or different towns?
A 21: The Department is not aware of any law or regulation that requires school districts to send everything to both parents. The only exception to this would be if a non-custodial parent has requested the information pursuant to G.L. c. 71, §34H, the Non-Custodial Parental Notification Law.
Q 22: For the IEP "vision statement", whose statement is it? The parent's or the Team's or somehow both?
A 22: Guidance regarding a Team's proper development of an IEP "vision statement" is provided on page 4 in the Department's June 2001 IEP Process Guide . In general the intent of the IEP Vision Statement is (1) to reflect the thinking of the entire Team (including the parent and the student), (2) to look forward to future goals of the student, (3) to represent high expectations and dreams for the student, and (4) to be reflective of federal requirements for transition aged youth. The character of the IEP Vision Statement will change based on the age of the student.
Q 23: Since some elementary and pre-school students exhibit speech concerns, can these students be simply screened versus provision of a full evaluation with short-term (defined as one school year or less) speech services provided? These are youngsters who would not meet the current definition of having a communication disability. Articulation issues that do not impact on educational progress would be a prime example. Can these students be screened and serviced by a speech and language therapist without following the special education process?
A 23: Yes. The Department encourages the general education program to support students with these types of needs who do not formally meet special education eligibility requirements. This is one example where support services could reasonably be described in and provided through the District Curriculum Accommodation Plan (DCAP).
Q 24: Can an IEP team make a placement at a vocational school?
A 24: No. A special education IEP Team in one school district can not lawfully make a placement in another school district (e.g., a regional vocational high school district). Where a Team has identified the need for vocational education for an eligible student, the Team must use special education placement procedures for such a student that are described in detail in the March 2002 Administrative Advisory SPED 2002-3: Vocational Educational Services for Students with Disabilities.
Q 25: For Independent Education Evaluations, how much time do districts have to respond to a parent's request?
A 25: This and other questions related to IEE will be in an Administrative Advisory on this topic to be issued in the late spring of 2003.
Q 26: What are the obligations of a district to conduct medical evaluations vs. educationally related evaluations? Are districts responsible for conducting medical evaluations? If so, which evaluations are they responsible for?
A 26: Under 603 CMR 28.04(2)(b)(1) a school district may recommend and/or a parent may request the completion of "a comprehensive health assessment by a physician that identifies medical problems or constraints that may affect the student's education." If medical problems are identified as a result of that "health assessment" that relate to the suspected special education needs of the student, the student must be evaluated in those areas. Nothing prohibits the district from inquiring with the parent regarding the use of private insurance to cover the costs of such assessments.
Topic: MCAS (MA Comprehensive Assessment System) and Students with Disabilities
Q 27: Are out-of-district programs responsible for MCAS remediation?
A 27: Out-of-district programs are not required to provide MCAS remediation above and beyond the programs they already offer during the school day. However, these programs must provide an individualized and appropriate education to each student based on the Massachusetts Curriculum Frameworks. Each student's IEP should already have at its core the specialized instruction necessary to address and make progress in learning the content and skills found in the Frameworks, and these goals should continue to be the subject of Annual Team meetings. Out-of-district placements should already be addressing the educational needs of each student to help them pass MCAS tests (or at least to help students make progress toward that goal).
Q 28: Who is responsible for ensuring that a special education student placed in an out-of-state program receives the MCAS test? How do out-of-state schools get materials and training regarding MCAS?
A 28: The placing Massachusetts school district is ultimately responsible to see to it that all students from their district participate in the MCAS testing program. In order to obtain MCAS testing materials, the out-of-state program should contact the MCAS Support Center at 1-800-737-5103. The placing district also bears responsibility to make certain the IEP is implemented correctly and completely, including overseeing the appropriate assessment of their students, especially since their test (or alternate assessment) results accrue to the student's home district. Training on MCAS administration, reporting, and alternate assessment is offered several times each year, and is open to staff from out-of-state programs, as well. Please consult the MCAS webpage for current information on trainings, and other important topics related to MCAS. The Department recommends that the responsibility for obtaining MCAS materials for students placed in any out-of-district program be stipulated in the district's placement contract required under 603 CMR 28.06(3)(f). For more specific guidance on this topic, refer to the Department's October 2002 Administrative Advisory 2002-4R: Special Education Students in Out-of-District Placements - Participation in MCAS Testing and High School Graduation Standards.
Q 29: Can anyone obtain the MCAS results for private day and residential schools, and how do students who attend these programs/schools perform as a group?
A 29: Students who attend private day and residential schools are extremely diverse, and their MCAS results reflect that diversity. Each school typically receives "test item analyses" and an overall report of the results of students who attend the school, so they can coordinate with sending districts to make adjustments and improvements in the instruction given to students. However, rather than making these results public for each school, the Department counts the results for each student in the results of the students' home districts. In addition, when an entire grade level of tested students totals fewer than ten, as it often does, these results are never made public, since by doing so, the confidentiality of students would be violated. When the Department receives a request for this information for a particular school, and the number of students in the tested grade level is greater than ten, these results will be made available to the individual making the request.
Q 30: If a student has received an out-of-state high school diploma and moves to MA, is the MA district obligated to provide services until the student reaches the age of 22 since the student has not received a MA diploma (having passed MCAS)?
A 30: No. Since the student has already graduated with a diploma from another state, thereby fulfilling the definition of "graduation" in IDEA, the student is no longer entitled to receive special education services in Massachusetts.
Q 31: If a student is tuitioned into District B from District A, which district receives the MCAS results? Is it determined by which district will issue the diploma? And do parents get to decide which district will issue the diploma?
A 31: If District A sends the student to another District B, then both Districts A and B receive the MCAS results for the student. However, for accountability purposes, the student's results are counted in the placing district's overall results. The reporting practices in this instance underscore the importance of the placing district's monitoring and oversight of the out-of-district placement to ensure that the student's IEP and access to the general curriculum are being fully implemented and are successful. Either district may give the student a diploma, after he/she passes the grade 10 MCAS ELA and Math tests, based upon agreement of the districts as to which local graduation requirements will be met by the student. Presumably, parents will have input in making the decision as to which district will give the diploma through the IEP Team meeting process.
Q 32: Concerning students in DYS and DSS who are moved frequently, what safeguards are in place to ensure that duplicate MCAS results are not recorded in different districts for the same student? Is this issue controlled through the SASID?
A 32: The Department's Student Information Management System tracks each student from one placement to another and maintains a record of his or her MCAS results. However, schools and districts have an obligation to report discrepancies in MCAS score reports for students who are reported erroneously in those reports. Typically, these students will be removed from a school or district's report once the error has been reported to the MCAS Support Center (1-800-737-5103).
Q 33: If a student is placed in an out-of-state publicly funded special education program, for example in Vermont, is he required to take the MCAS test, and if so, would the student receive a Massachusetts diploma or a Vermont diploma?
A 33: All Massachusetts publicly funded students placed in out-of-state special education programs must take MCAS tests (or alternate assessments) and, if qualified, will eventually receive a Massachusetts diploma (or Certificate of Attainment). Again, please refer to Administrative Advisory 2002-4R, regarding the awarding of diplomas to students in publicly-funded private special education schools. Also refer to Policy and Criteria for the Certificate of Attainment webpage for the Department's policy and specific criteria to earn a Certificate of Attainment.
Q 34: What are the provisions for MCAS appeals for students placed in out-of-district placements?
A 34: The same right to an MCAS Performance Appeal applies to a student in an out-of-district placement as to a student educated within the home district. Although the out-of-district placement obviously must coordinate with the student's home district to provide information needed to complete the required forms, the Superintendent of the home district must file the appeal with the Department. Please refer to MCAS Performance Appeals webpage for details on the MCAS Performance Appeal process.
Q 35: At what point must a special education student take the MCAS test if the student transfers to a Massachusetts school from out-of-state? For example, if the student enrolls in a Massachusetts high school during the last semester of the senior year, does such a student have to take the MCAS test to graduate?
A 35: All Massachusetts students in 2003 and beyond must pass the grade 10 MCAS tests in ELA and Math, and must also meet all local requirements, in order to graduate with a high school diploma. This includes a student (with or without a disability) who first enrolls in a Massachusetts high school in grade 12. A student with a disability is, however, eligible to continue receiving special education services, and to continue retaking the MCAS tests, until he or she passes those tests, turns 22 years of age, or voluntarily withdraws from school.
Topic: Private Schools, School District Contract Obligations for
Students Placed in Public and Private Out-of-district Programs and
Q 36: There are frequently reasons for school districts to conduct unannounced visits at out-of district placements. Some programs/schools are refusing those kinds of visits. What should be done in this case to ensure that the requirements are implemented?
A 36: State requirements under 603 CMR 28.06(f)(3) are clear regarding the obligation of public or private out-of-district programs to allow placing districts and/or the Department of Elementary and Secondary Education to conduct announced and unannounced site visits and to review all documents relating to the provision of special education services to publicly funded Massachusetts students. This obligation is a required element in the placing district's contract [603 CMR 28.06(f)(3)] with any public or private out-of-district program. Where local efforts have failed to ensure that this requirement is being fully implemented, a complaint may be filed with Program Quality Assurance Services by any person who alleges noncompliance with this state requirement (781-338-3700). The Department then has the responsibility to ensure that such a complaint is resolved and compliance documented by the out-of-district program.
Q 37: How many visits to individual out-of-district placements per year are considered sufficient to meet the requirement of the regulations? Can the occasion of the Team meeting be sufficient if the district also checks into the program?
A 37: A Team meeting alone can not suffice for full implementation of the regulatory requirement. Pursuant to these state requirements to monitor individual student placements in out-of-district programs, generally the Department expects monitoring of approved and unapproved out-of-district placements to occur at least once per year. The monitoring activities must be implemented in a manner that documents that the student is continuing to be educated in a safe and appropriate educational environment and that the district's IEP is being fully implemented by persons who meet Massachusetts professional standards. The language of the regulation requiring such monitoring [603 CMR 28.06(3)(b)] is intended to mean that the individualized monitoring plan is included in the required, written, student placement contract and stipulates if an onsite visit is or is not planned. In respect to all monitoring plans and related documentation, the burden is upon the placing school district to demonstrate that the student is not "out of sight and out of mind", whether or not on-site monitoring is taking place. In all cases, it is not permissible for a district to delegate the monitoring of individual student programs in out-of-district placements to parents or their agents, to the Department of Elementary and Secondary Education or to the out-of-district placement itself. [603 CMR 28.06(3)(b)]
Q 38: As a service to member districts, can educational collaboratives be engaged to implement the required local monitoring of school district placements in out-of-district programs?
A 38: Yes. This could be an appropriate service of an educational collaborative to provide for its member districts. Where such collaborative monitoring services are authorized by a member district, the responsible school district should clearly indicate (in writing) to the out-of-district placement that the district has engaged the collaborative to meet its local monitoring requirements required by state special education regulations. Further, under such an arrangement the collaborative would be authorized (under Massachusetts Student Record Regulations) to access personally identifiable student information in the course of implementing this responsibility on behalf of the responsible school district.
Q 39: Private school rate increases for "reconstructed programs": Are responsible school districts required to be notified of pending private school rate increases so districts can anticipate these rising costs? Are the increases ever retroactive? Once they are increased, how long is it until the new rate takes effect?
A 39: With regard to rate increases resulting from a reconstructed private school program, there is a requirement that districts purchasing the services at a private school program be notified no later than December 1 for price authorization for the following fiscal year. Increases are not retroactive, and the effective date for the approved rate increase varies according to the determinations of the Operational Services Division of the Executive Office of Administration and Finance.
Q 40: What is the average turn around time for securing Department of Elementary and Secondary Education approval for a proposed placement in an unapproved private school program? What is needed for an annual renewed approval for such a placement? Is a new program search a required component of such a request for renewed approval?
A 40: First, it is important to clarify that the Department does not "approve" placements of students in unapproved private school programs. The Department is obligated, however, to receive school district notice of its intent to use such a program and then authorize the pricing of such an unapproved program for the district by the Operational Services Division of the Executive Office of Administration and Finance. The Department is required by regulation to notify the school district within ten days of receipt of the "Notification of Intent to Use an Unapproved Program" if there are any objections to the district's use of a particular unapproved program. When all required information is not submitted by the school district with its notification, a checklist is sent by PQA to the district within ten days outlining all missing elements. The requirements for documentation that must be submitted in support of a request are outlined on the Department's 28M-3 form. It should be noted, however, that most of the required documentation to substantiate placement in an unapproved program is not submitted to the Department of Elementary and Secondary Education but must be kept on file by the district in the student record and must be made available for review upon request or at the time of a Coordinated Program Review onsite visit to the district. There is no distinction made in the state special education regulations between an initial notice of placement in an unapproved program and a request for the continuing placement of a student in an unapproved program. The same notice and pricing authorization procedures must be implemented at least annually by a school district and the Department for each IEP proposed for an unapproved private school program.
Q 41: does the Department have written guidance on "home education" procedures for Massachusetts students?
A 41: Yes. The Department has prepared a "Public Draft" of a Home Education Advisory that includes general guidance for school districts in responding to a parent's request for school committee or superintendent approval of a home education program. This draft guidance is available from your PQA Liaison upon request if you have a current need for general guidance prior to the Department's formal publication of this advisory. Note that the guidance on "home education" is separate and distinct from the Department's guidance available in the Department's Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital pursuant to special education requirements under 603 CMR 28.03(3)(c) and 28.04(4).
Topic: "Other Health Impairments"
Q 42: Are alcohol and drug abuse qualifiers for the determination of a disability under the category "Other Health Impairments?"
A 42: No. [Ref. 603 CMR 28.02(7)(i)]
Topic: Student Records
Q 43: Should special education records be destroyed within seven years after dis-enrollment as with temporary records?
A 43: Yes. Special education records are part of the temporary record. It should be noted that the School Finance Regulations require that special education program rosters, IEPs and out-of district tuition records be maintained for seven years after the date of submission to the Department on the End-of-year Pupil and Financial Report. [Ref. 603 CMR 10.05(5).]
Q 44: Can school districts give their temporary student records to students at graduation as a method of "destroying" the record?
A 44: Yes.
Q 45: Are the access provisions for non-custodial parents consistent with their access rights under FERPA?
A 45: Yes. The FERPA Regulations require school districts to give parents full access rights unless there is a court order, state law, or legally binding document relating to divorce, separation, or custody specifically revoking their rights. The Massachusetts Non-Custodial Parental Notification Law, G.L. c. 71, §34H is a state law that limits the access rights of certain non-custodial parents.
Q 46: Under what circumstances may a test protocol be released to a parent or other person requesting such information in regard to a student? In other words, are test protocols considered part of the student's special education record?
A 46: The answer depends on the circumstances. The protocol of a test, usually administered by a school psychologist (most frequently as part of a student's evaluation for special education) may include standardized test scoring forms; student answers, drawings and verbal responses noted by the tester; and the tester's written observations of student behavior. If the test protocol individually identifies the student, and is accessible to other authorized school personnel or third parties, then it is considered part of the student record, and the eligible student or parent has access to it under 603 CMR 23.07(2). However, if the protocol does not individually identify the student, it is not considered part of the student record. Furthermore, it is not considered part of the student record even if it does identify the student, provided that it is kept in the tester's personal files and is not released, in whole or in part, to authorized school personnel or any third party. In those cases, it is permissible but not required to share the protocol with the parent or eligible student.
Q 47: does USDE/Office for Civil Rights prohibit student 504 accommodations plan records and special education records from being housed in the same space?
A 47: The Department is unaware of any prohibition regarding the commingling of student 504 accommodation plans with special education records.
Q 48: Is there an error in some copies of the Department's Student Record Regulations regarding non-custodial parents rights to access student records. 603 CMR 23.07 (5)(b) that says "In order to obtain access, the non-custodial parent must submit a written request for the student records to the high school principal annually...?" (Emphasis added.) What about elementary and middle school records?
A 48: In some published copies of the Department's Student Records Regulations, paragraph 603 CMR 23.07 (5)(b) contains a typographical error. The word "high" under this paragraph is not correct and, therefore, must be disregarded. This error was deleted from the official version of the regulations on file with the Secretary of State's office and is corrected in subsequent Department of Elementary and Secondary Education publications of these regulations.
Q 49: Must special education student records be kept separately from regular education student records? Is there any problem with "commingling" of these records?
A 49: No.
Q 50: What is the obligation of a district to maintain the student records of a student who has left the district? For how long must the records be retained?
A 50: The transcript must be kept for 60 years after the student has transferred or withdrawn from the school district. The temporary record must be destroyed within seven years after the student has transferred or withdrawn from the school district.
Topic: Section 504 and Special Education
Q 51: Can a local Pupil Personnel Services Director and an Administrator of Special Education also be a district's Section 504 Coordinator? If so, is there any conflict of interest under this administrative arrangement?
A 51: The Department is unaware of any requirement that would prevent a person from holding both responsibilities simultaneously. However, recognizing that Section 504 is not a special education law, a district may find it prudent to assign the role of Section 504 Coordinator to a regular education administrator.
Q 51: Are private schools obligated to write and implement 504 accommodation plans?
A 51: If any private school is a recipient of federal funds, it has the obligation itself to fully implement the provisions of Section 504. All Department of Elementary and Secondary Education approved private special education schools hold this responsibility as well as any publicly funded unapproved private special education school.
Topic: Extended School Day/Year Programs
Q 52: If a school district operates a summer gym program that is open (for a fee) to all students, including students with disabilities, is a district required to provide and pay for a 1:1 aide if the student is provided with this support service during his/her gym program during the school year?
A 52: Pursuant to the provisions of Section 504, if such an aide is necessary for the student to participate in the program, the school district is obligated to provide and pay for such a support service. However, the student's participation in the regular gym program is subject to the same enrollment fee as all students.
Q 53: Do school districts have to implement the LRE standard for students needing extended school year programs by enrolling nondisabled peers in such a program?
A 53: Generally the answer to this question is no. However, as with all special education placement decisions, including those involving extended school year programs, every IEP must be individually determined. While court decisions do exist that have required the enrollment of nondisabled students in extended school year programs in order to meet the LRE standard, such a requirement would be dependent upon the unique facts of the case and documentation that a student's extended year program could only be effective if implemented with non-disabled peers.
Q 54: Can local teacher contracts limit the provision of extended school day programs when IEP Teams identify such a need?
A 54: The consideration of an extended school day program by an IEP Team is based on individual student need. Particular provisions of a local teacher contract that would prevent such a program from being proposed or provided can not be used as a barrier for the student's access to needed extended school day programs and services identified by the Team.
Topic: Interagency Cost Sharing and Related Issues
Q 55: Is there a DSS/DMH/ESE interagency agreement about sharing the payment of services for students with disabilities?
A 55: Yes. This agreement was issued in 1976 and is still in effect. A copy of the agreement is available from Program Quality Assurance Services.
Q 56: What recourse does a district have if DSS places a student in a residential school that has a day program but the district believes that a different day program is more appropriate?
A 56: Guidance regarding this issue will be provided in the Department's spring 2003 Administrative Advisory: Student Transfers-Day Schools and will be made generally available to the public on the Department's Internet web site.
Special Education Personnel
Q 57: There are currently numerous passionate concerns expressed about how school districts can retain special education teachers and related services providers who are leaving to take positions in regular education because they are spending 20 - 25 % of their workweek on paperwork. What is going to be done about paperwork reduction in special education that is driving much of the professional dissatisfactions of teachers?
A 57: Reductions of special education paperwork and procedures are currently being vigorously debated in the course of federal IDEA Reauthorization activities across the country. Local Administrators of Special Education, parents and other interested persons are urged to express their concerns and suggestions to their Congressional representatives prior to the Reauthorization of the Act.
Q 58: Can substantially separate classrooms and/or resource rooms staffed by special education staff be used to service some students who may qualify for a 504 plan or who may be regular education students with specific needs at the moment and could possibly benefit from short-term placement in such a setting? Is this possible or does the program being staffed by special educators mandate that it is a special education program and requires eligibility and an IEP for entrance?
A 58: If federal special education monies are used to support the costs of staff, students served by these federally funded staff must be identified as eligible for special education and their programs and services must be described on current IEPs approved by parents. While federal special education regulations do provide that federal special education funds may be used for "incidental benefit" of students who are not eligible to receive special education, districts must be able to demonstrate that such use of federally funded staff to support general education students is not a primary focus of these staff members' responsibilities. There is no such restriction where special education staff are locally or state funded.
Q 59: Is there a way for the Department to recognize attendance of Administrators of Special Education at PQA and SEPP Area Meetings so they may be eligible for PDPs?
A 59: PQA's Area Meetings of Administrators of Special Education do not in and of themselves qualify for the Department's granting of PDP's (Professional Development Points). Administrators should consult with their local supervisors to determine if one or more of the PQA Area Meeting Agendas and related handouts could contribute to an Administrator's documentation of a locally approved professional development plan leading to re-certification. For more information on PDP's and re-certification requirements, please refer to guidance found at Advancing/Renewing a License.
Topic: Home/Hospital Programs
Q 60: Why are there new requirements for home and hospital services for students in private schools at private expense that make a student eligible for special education? Why wouldn't such a student in need of home/hospital instruction be eligible for services under Sec. 504 instead?
A 60: Requirements in this area stem from new state law. [Reference the Commissioner's recent advisory on this topic (Administrative Advisory 2003-1: Changes in Massachusetts Special Education Law). It is possible for private school students to receive home/hospital instruction under Section 504 if the private school is a recipient of federal funds. If this is not possible, the only way to meet the provisions of the new state law is for private school students to receive home and hospital services through publicly funded special education. Again, note that detailed guidance on this topic is available in the Department's Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital pursuant to special education requirements under 603 CMR 28.03(3)(c) and 28.04(4).
Q 61: What are the definitions of the terms "acute" and "chronic" as used in the recent Department of Elementary and Secondary Education Advisory on Home/Hospital Programs?
A 61: These are medical terms and are subject to interpretation. "Acute" customarily means "serious", while "chronic" customarily means "recurring or long lasting."
Q 62: How much are school districts bound by doctor's notes in determining expedited evaluations for home/hospital services?
A 62: Districts are required to "carefully consider" a physician's determinations and recommendations and are responsible to defend their actions in response to a physician's statements.
Q 63: Are Commonwealth and Horace Mann charter schools obligated to implement Home/Hospital programs as described in the Department's recent Administrative Advisory 2003-1?
A 63: Yes, for students actually enrolled in these charter schools.
Q 64: LEA Assignment Letters: Districts receive LEA Assignments without any detailed background information on who filed the request, and what information was forwarded to the Department related to the LEA Assignments. The districts receive LEA Assignment letters from the Office of Special Education Planning and Policy without any knowledge of the entire situation, and are simply left to pay for a student without the detailed rationale for the assignment that is requested by Superintendents and School Committee members. What can be done to improve the depth and clarity of information associated with these many times extraordinarily expensive assignments?
A 64: If school districts wish to receive detailed information regarding the basis of these Department of Elementary and Secondary Education determinations, they may ask for it from the Office of Special Education Planning and Policy.
Program Quality Assurance Services hopes that the information included in this follow up Question and Answer Guide from the Fall 2002 PQA Area Meetings of Administrators of Special Education is helpful to public and private special education school administrators and other interested persons who work to ensure that local practices are consistent with requirements for the provision of programs and services for students with disabilities in the Commonwealth of Massachusetts.
You may also e-mail PQA at firstname.lastname@example.org and your message will be directed to the most appropriate Department of Elementary and Secondary Education staff member.