Program Quality Assurance Services
Compliance and Monitoring
March 2004 Question and Answer Guide
Fall 2003 Special Education Area Meetings
Questions Gathered from Twenty Area Meetingsof Administrators of Special Education November and December 2003
Answers Prepared by Program Quality Assurance Services (PQA)and The Office of Special Education Planning and Policy Development
(Also refer to previously issued PQA Area Meeting Question and Answer Guides)
Topic: MCAS (MA Comprehensive Assessment System) and Students with Disabilities
- Q 1: Have all Department of Elementary and Secondary Education approved public and private special education school programs been informed of their legal responsibilities to ensure that enrolled Massachusetts students participate in the MCAS testing program either through taking the standard test with or without accommodations or taking the alternate assessment?
- A: Yes. The Department of Elementary and Secondary Education has implemented extensive outreach and training for ALL public AND private special education schools regarding their duties under law to ensure that ALL students in need of special education appropriately participate in this assessment program. Note that local districts must ensure that all students enrolled in unapproved private special education programs also participate in the MCAS assessment program. Where any person believes that this fundamental responsibility is not being fully implemented on behalf of a student, referral of this matter should be directed to the Department's complaint management system by calling 781-338-3700.
Topic: Public and Private Out-of-district Programs and Related Issues
- Q 2: Will the Department be developing a standard form for local use in onsite monitoring of individual student placements in approved and unapproved public and private special education schools?
- A: No. While the Department has developed extensive monitoring procedures to carry out its duties to monitor approved private school programs , the related legal requirement for local monitoring of individual student placements must at a minimum be designed by the district to ensure that:
- the student is served in an appropriate program;
- the student's program is delivered by appropriately credentialed staff; and,
- the student is served in a safe educational and/or residential environment.
- Q 3: If a local school district or collaborative wishes to know more about the process for approval of a new public special education day or residential school, who should be contacted in the Department?
- A: Contact should be made with the Program Quality Assurance Services (PQA) Liaison assigned to that district or collaborative. The Department is able to conduct group training sessions on these program standards and approval procedures for school districts and collaboratives where a pattern of training needs is identified.
- Q 4: Is there a requirement for an unapproved private day program to apply for ESE approval if it has 20 or more students placed by public school districts?
- A: There is no current legal requirement that addresses this matter. The Department always encourages a private school to apply for formal approval under the Board's regulations if districts regularly use it. Note: A public school that contracts with any unapproved private school for placement of a disabled student must ensure that all regulatory requirements of 603 CMR 18.00 and 28.09 are being fully met by an unapproved program, as the Department does not itself routinely monitor these programs.
- Q 5: If a private school applies for "extraordinary rate relief" by reason of noncompliance that has been documented by the Department of Elementary and Secondary Education, is that private school obligated to inform all of its purchasers of service of the potential for a rate increase?
- A: The Department encourages such notice, however, there is no current requirement for the private school to do this. The Department is considering a policy change in this regard to align such a notice requirement with current requirements related to requests for approval of "reconstructed" private school programs. A district has discretion to include this notice requirement as one element of its student placement contract with a private school.
- Q 6: When the "move-in law" applies to a student's placement in a private day or residential school, does the new programmatically responsible district have to write a new contract for that private program or may the district delay this action until it actually assumes fiscal responsibility for the placement in the next fiscal year?
- A: If the new district is satisfied with the provisions of the contract prepared by the former district with programmatic responsibility, it may delay the development its own contract until the next IEP Team meeting that generates an updated IEP for the student in the private school program.
- Q 7: Are contracts needed when students are placed in the Mass. Hospital School?
- A: No. These placements are made by the Department of Public Health.
- Q 8: Can approved private schools be required to send responsible school districts the Department's Incident Report (Form 2), not the school's own version of an incident report?
- A: Private schools must provide proper reports of critical incidents, including reports of physical restraint, to responsible school districts in a manner that meets the minimum content requirements of the Department's Incident Report Form and Physical Restraint Form. Where this is an issue, the matter of the form and content of these reports should be considered for inclusion in the district's contract with the private school.
- Q 9: Are out-of-district day and residential schools operated by educational collaboratives expected to send Incident Reports and Physical Restraint Reports to the responsible school districts?
- A: Yes.
- Q 10: Where may I obtain a full listing of Department approved private special education schools, or how can I determine if a school has lost its approval from the Department?
- A: The directory of approved private school programs is updated on at least an annual basis. In cases where a district is unsure about the current status of a particular private school program, inquiry may be made with a PQA Private School Team member by calling 781-338-3700. Note, for approved private schools that have been placed by the Department of Elementary and Secondary Education in a "Probationary Approval" status for reasons associated with significant noncompliance with health, safety or educational requirements, such schools are identified in the PQA News section of the Department's website. Such a posting of sanctions continues until the private school has received the Department's approval for corrective action plans associated with the matters of noncompliance.
- Q 11: Can public and private out-of-district programs condition a school district's use of unannounced visits to determine compliance with IEP and other program requirements?
- A: No. The implementation of announced and unannounced onsite visits in approved and unapproved private schools by responsible local school district officials and Department of Elementary and Secondary Education staff are two oversight mechanisms provided under the law. Unannounced visits to programs conducted by local school district officials are conducted for the purposes of observing a particular student's program. Unannounced visits conducted by the Department of Elementary and Secondary Education are generally implemented to observe aspects of the program regulated by the Department. In all cases, the use of unannounced visits should be premised on a circumstance in a particular out-of-district public or private school program that can only effectively be verified through the use of unannounced local or state oversight visits.
- Q 12: What should the district do about an unapproved private school program when that school will not provide the district with information about costs so that the district may proceed to seek the state's pricing of the unapproved program?
- A: Any unapproved private school that is uncooperative in providing information necessary for the district to obtain a price set by the Commonwealth's Operational Services Division of the Executive Office of Administration and Finance should immediately take steps to locate an alternate program that will cooperate with the district. Note that it is not lawful in Massachusetts for a public school to expend public funds for the placement of a disabled child in a private school when the Commonwealth has not set a price for the private school program.
Topic: PQA Problem Resolution System
(i.e., ESE complaint management procedures)
- Q 13: Does the Department maintain data regarding the number and nature of complaints filed alleging noncompliance with state and federal education requirements?
- A: Yes. The overall frequency of complaints has been declining over the past two years. This data is available from PQA upon request (781-338-3700). [See related handout distributed in PQA Spring 2004 Area Meetings describing the frequency and disposition of complaints in special education.]
- Q 14: Can a special education complainant be required to attempt resolution of their complaint with the district before being allowed by the Department to open a formal complaint in PQA?
- A: While state regulations encourage the development of local dispute resolution procedures, federal law does not allow the state to precondition the Department's investigation of formal written complaints upon evidence of the attempts at a local level to resolve an allegation of noncompliance.
- Q 15: If a parent simultaneously files a complaint with the OCR, BSEA and PQA, which agency's dispute resolution procedures apply?
- A: Federal special education requirements prohibit the investigation of a complaint through the state's complaint management procedures (in PQA) when it is simultaneously under review by the state's special education due process system (in the BSEA). However, the parties may seek a hearing through the Bureau of Special Education Appeals on an issue already addressed and closed by the Department of Elementary and Secondary Education in a complaint investigation. Such a hearing, however, is a new proceeding and is not for the purposes of reviewing the Department's decision on the complaint. Any order or decision issued by the Bureau of Special Education Appeals on the issues raised in a complaint would be binding. Where a complainant simultaneously files a complaint with PQA and OCR, OCR will generally defer to the state and allow it to complete its investigation and resolution procedures prior to considering opening the complaint at OCR.
Topic: Special Education Procedural Requirements:
IEPs, IEP Meetings, Special Education Evaluation,
Independent Educational Evaluations (IEE), Progress Reports,
and Special Education Notice Requirements
- Q 16: Since my school district issues to general education students more than the usual four progress reports in each school year (i.e., report cards or other periodic notices describing student progress), are the special education students in the district entitled to that same number of special education progress reports?
- A: Yes, as required by state and federal law. However, if for instance this practice is represented only in a particular regular education classroom in the district and is not a systemic practice, the students with disabilities in that particular classroom would be entitled to progress reports with the same frequency as other students in that classroom receive; however, the district otherwise would only be obligated to comply with the frequency of special education progress reports represented by the system-wide standard for general education.
- Q 17: If a district keeps all information required on the IEP PL-2 Form in an alternative written form, is that district required to use a PL-2 Form?
- A: No, it is not required if all the content requirements of the PL-2 Form are maintained by the district in an alternative written or electronic form that are readily accessible for the purposes of preparing state reports and for auditing/oversight purposes.
- Q 18: How may a district avoid the appearance of unilaterally changing an IEP after a Team meeting when implementing requirements under 28.05(7)(a)(1) (i.e., allowing the Administrator of Special Education and a parent to modify an IEP after the conclusion of a Team meeting)?
- A: If the school district and the parent agree, changes may be made to an IEP without a Team meeting. In such case, a school district may ask the parent to initial such changes on the IEP together with the administrator's initials.
- Q 19: Is an IAES (Interim Alternative Educational Setting) placement in a collaborative program defined as an out-of-district program requiring a contract?
- A: No. An IAES is considered a temporary removal of a student from his or her currently approved program and is not considered a new placement. However, the Team may meet and determine to confirm such location as the placement of the student or may make placement to another location during or at the end of the period of removal to the IAES. If an alternate placement is made for the student in an out-of-district program through the Team process and is approved by the parent, a new contract would be required for any new out-of-district placement.
- Q 20: In the case of a student enrolled in a district under the state's school choice program, and the student develops a need for an out-of-district special education day school placement, can that district charge a tuition to the district of residence if the school choice district has a public day school that it operates?
- A: Yes. Note that the school choice district must involve the district of residence in this IEP and placement meeting. [See 603 CMR 28.03(4)(i)(2).]
- Q 21: The IEP software program our district uses for preparation of the PL-2 form automatically fills in "low" level of service when in fact the student may be receiving a moderate or high level of service. What should be done about this problem?
- A: The Department does not have authority over the design and operation of proprietary IEP software programs. Problems of this sort must be resolved by the district and the particular software vendor in order to avoid generating faulty IEPs for which the district is responsible.
- Q 22: What should a district do when it doubts the veracity of a student's condition with regard to a notice received from a doctor that indicates the need for a home or hospital bound instruction program for a student?
- A: At a minimum, the district should expect that the student's doctor would provide information consistent with the content requirements of the sample Department of Elementary and Secondary Education notice (28R3 ) in this regard. The school district may seek additional information from the doctor if sufficient information is not provided in the original documentation. Where there remains significant doubt regarding the legitimacy or completeness of the information prompting the need for such a home or hospital bound education program, it is prudent for the school district to consult with its legal counsel in order to properly implement the district's duty to provide educational services and to ensure school attendance, if appropriate, for such a student.
- Q 23: Where are cost shares between a district and a parent that are ordered by the BSEA to be reflected on a PL-2 form?
- A: The BSEA is prohibited by federal law from ordering placements where parents are required to share special education costs with districts. Occasionally, settlement agreements are developed between parents and districts (with both parties being represented by legal counsel), and these settlement agreements can be a means of resolving special education disputes. Districts may note such cost-sharing settlement agreements, but such agreements would not be reflected in the ESE data format of DOE39 on the PL-2 form. However, the Department will be removing the data format for DOE39 effective for the 2004-5 school year. For the purposes of "circuit breaker" reimbursement, the district should indicate on the claiming form under "other" the amount of cost provided by any entity not otherwise named, including parents, and may only claim the district's actual expenditure.
- Q 24: Where may I find the current special education Team Evaluation and Services rates for Independent Educational Evaluations that are promulgated by the state?
- A: They may be found at http://www.state.ma.us/dhcfp/pages/pdf/114.3_30.pdf.
- Q 25: I have received a parent request for an independent educational evaluation (IEE). Before I decide how to respond to this parent's request, how can I determine if my district's special education assessments are "comprehensive" or not?
- A: Generally, special education assessments can be characterized as "comprehensive" if the district has completed assessments in all areas required by law that are thorough, well articulated, conducted by qualified persons, and respond to the unique needs identified for a student.
- Q 26: Can the Department provide some clarification regarding eligibility for special education under a mental health category and the assessment of behaviors in regard to this consideration?
- A: Refer to the Department's guidance document entitled, "Is Special Education the right service?"
- Q 27: When a child turns age 3 and is referred to a school district for special education evaluation, can the child's Early Intervention (EI) evaluation results be used instead of having the district do these assessments over again?
- A: EI assessments should be reviewed by the district to determine if they currently reflect the functioning of the child. It should also be noted that not all EI assessment information is relevant to the establishment of a child's eligibility for special education. However, if the assessment information is current and pertinent to a child's potential eligibility, the district may request (but not require) that the child's parent waive any assessment already completed by EI that the district would have been required to perform in completing its own special education evaluation.
- Q 28: Does a school district need to hold a Team meeting when a student on an IEP moves into a MA district from another school district or from another state?
- A: For students moving into a district from another Massachusetts district, the new district is obligated to place the child in a comparable program that is described on the student's current IEP, unless the district believes that student's performance and/or needs are inconsistent with that IEP. In this case, an IEP meeting should be held to consider the needs of the student in the new district and propose any necessary changes or the need for re-evaluation. For a student moving from out-of-state with a current IEP, a district has discretion to determine if it believes that the student is eligible for special education in Massachusetts or not. If the district believes the student is eligible, the district may elect to implement the existing out-of-state IEP in a comparable program until that IEP's expiration, or may convene a Team meeting to develop a new IEP. If the district believes that the student is not eligible for special education in Massachusetts because the identified needs of the student can be met within the new district's general education program, notice should be sent to the student's parent with this determination together with a statement of the parents' rights to refer the student for a special education evaluation conducted by the Massachusetts school district.
- Q 29: What if a parent downloads a Massachusetts evaluation consent form from the ESE's website, completes and sends it to the school - does the school district need to complete the evaluation or ask the parent to separately put their request in writing?
- A: Regardless of what kind of paper the parent uses to request an evaluation, the school district is obligated to respond to the request within 5 days, usually with an N-1 form and N-1A of its own. Then the district must complete a special education evaluation within 45 days of receiving the parent's consent on the N-1A form. Note, however, that it is the district's responsibility to propose the specific components of the requested evaluation after consultation with the parent.
- Q 30: If a student is moving to a different home in a city or town and on the student's IEP service delivery grid it indicates that the student's program is to be "co-taught in XYZ location", do we have to stick to that same school for the year because "stay-put" applies?
- A: No. Stay-put refers to the program type and the array, duration and frequency of services the student is to receive. The assignment of students to specific buildings or instructional locations in a building is an administrative decision. However, we recommend as a courtesy to inform the parents of the changes made.
- Q 31: Scenario: A school district receives a referral; discussion with parents is followed by proposed evaluation and receipt of a consent form; parents agree to all proposed assessments except the district's psychological assessment; parents then request an independent psychological evaluation; what should the school district do?
- A: Please refer to the Department's recent Administrative Advisory on Independent Education Evaluation to determine how to properly respond to a parent's request when the district has not yet had the opportunity to conduct its own assessment.
- Q 32: Scenario: A school district receives a referral; discussion with parents is followed by receipt of a consent form; parents agree to all proposed evaluation components; the evaluation is completed and an eligibility Team meeting is held; during the meeting the topic of a psychiatric issue is raised. Is the school district required to do a psychiatric evaluation?
- A: Yes, if the district comes to believe that this is an area of suspected disability that previously was missed by the district. In this case, if there is enough evaluation information available to propose a partial IEP pending the completion of the psychiatric evaluation, a partial IEP can be issued with an extended evaluation period proposed in order to gather further evaluation information and prepare a full IEP. If, on the other hand, the district determines that the student has no suspected mental health needs, the district may refuse to do the assessment and provide the parents with their rights to appeal such a refusal.
Topic: Special Education Transportation
- Q 33: Regarding the mandated training of special education transportation providers (local or contracted), must such training be provided annually?
- A: No. There is no requirement that training be provided annually to persons who have already received training consistent with their duties and the nature of the needs represented in individual students they are responsible for transporting. However, the district must be continuously prepared to provide (or contract for) appropriate training for new transportation providers at the time of their hire. The district must periodically provide refresher training for existing providers taking into consideration changing laws and regulations and any changing or unique needs of students assigned to receive special education transportation.
- Q 34: Do special education transportation providers have to receive CPR training and hold CPR certification?
- A: There is no specific requirement for this in special education law. However, the district must keep in mind its duty to ensure the safe transport of all students who potentially exhibit a wide range of unique needs. Discretion, therefore, should be used in deciding if CPR is an area of training that should be provided in consideration of the particular characteristics of one or more students assigned to a transportation provider.
- Q 35: Regarding a student placed by DSS in an out-of-district special education school, which district is responsible for transportation to a public high school when the IEP Team has determined that the student can attend school in that setting?
- A: The public school where the child is attending should provide such transportation and may bill back costs to the district where the student's parents reside.
- Q 36: What is the difference between a student who is determined to be a "state ward," a "foster child," or an "abandoned child?"
- A: Regarding the definition of a "state ward", generally this would be a child in the custody of a state agency, However, the context in which the term is used is extremely important in responding to this question. State wards in the context of the circuit breaker program do not include children in the custody of DSS who continue to reside (albeit in a foster home) in their home communities. A "foster child" speaks to the relationship of the child to the placement, as in a foster home and doesn't refer to the matter of custody. An "abandoned child", as the term is typically used, means a child with no parent alive or living in the Commonwealth, or a child who has been surrendered for adoption, or a child whose parent(s) reside in an institutional setting [defined in 28.03(4)(f)]. These students are a subset of "state wards."
- Q 37: How can school districts and private schools regularly be alerted to all new administrative advisories and guidance issued by the Department's various program units?
- A: All important advisories are posted on the main page of the Department's PQA and SPED websites.
- Q 38: Can the Department consider raising the bar (4x foundation) when determining the students who would be eligible for reimbursement under the Circuit Breaker program so that only the most expensive students would be eligible, but they would receive a greater amount of money for a smaller number of students?
- A: No. The current standard included in the Circuit Breaker program is a matter of state statute and regulation, and the Department of Elementary and Secondary Education is not able to unilaterally change this standard.
- Q 39: The role of building principals is pivotal in the success of any special education program in a school district. How does the Department ensure that these general education school leaders are provided with training on their responsibilities to disabled students?
- A: The Department of Elementary and Secondary Education periodically meets with professional associations of regular education school leaders on matters key to their responsibilities in supporting the successful implementation of special education in general education environments, and the Department has provided training to these groups upon request. Additionally, the Department has posted a PowerPoint presentation module related to this topic.
- Q 40: Could the PQA Area Meetings be used as an opportunity for highlighting "Promising Practices" and sharing local strategies?
- A: PQA Area Meetings can and have been used for this purpose. It is always helpful for a local administrator to alert in advance his or her PQA Liaison regarding the need for agenda time to address a "promising practice" presentation.
- Q 41: Parents in our district routinely use "special education advocates" in IEP Team meetings. Our experience is that these persons have a broad diversity of skills and knowledge necessary to support parents of students with disabilities in the IEP process. What is the Department doing to ensure a more consistent level of understanding and skills on the part of special education advocates in Massachusetts?
- A: PQA and the Department's Special Education Planning and Policy Office (SEPP) have recently convened a discussion group with local administrators and representatives of parent advocacy groups to determine the nature and scope of the current system of special education advocacy in the state, its strengths and areas of needed support. The Department will be developing with this discussion group a plan to ensure that parents are systematically provided with necessary information in order to access information on obtaining the services of special education advocates and what to look for in selecting an advocate to meet particular parent needs. Further input from advocates, parents and local school district staff is currently being sought by the administrators of PQA and SEPP, which will assist the Department in this particular project. In this regard, please contact firstname.lastname@example.org and/or email@example.com.
- Q 42: Will the Department be producing advisories on specific disability areas similar to what other states have done?
- A: The Department believes that the agency's working document entitled, "Is Special Education the Right Service?", serves this purpose in many respects. This document will be prepared in a final form after the upcoming federal IDEA reauthorization activities are complete.
- Q 43: With regard to the interface between federal No Child Left Behind requirements (NCLB), if a school is identified as "under-performing", and the student with disabilities by law has the right to go to another school in the district, what do you do if the alternate school doesn't offer the same kind of program or services necessary for the student that were available in the former school?
- A: A district is not obligated under federal law to offer the same program, only a comparable program. As a practical matter, where this standard cannot be achieved, the student's IEP Team should be reconvened to determine an alternate, appropriate placement that is capable of meeting the student's needs.