Program Quality Assurance Services
Compliance and Monitoring
October 2006 Question and Answer Guide
Fall 2005 PQA Area Meetings of Administrators of Special Education
|Questions Gathered from Twenty-two Area Meetings of Administrators of Special Education |
November and December 2005
Answers Prepared by The Office of Special Education Planning and Policy Development
and Program Quality Assurance Services
Topic: McKinney-Vento Act and Temporary Placements by DSS
- Q 1. Is there a definition for the term "temporary" as it relates to DSS placements such that the student is to be deemed homeless?
A 1. No. In accordance with the McKinney-Vento Homeless Assistance Act, students who are awaiting foster care placement are considered homeless. Students who have been placed by DSS into temporary, transitional or emergency placements are awaiting foster care and thus are homeless. Generally, a temporary placement is one that is not intended as a long term, foster care living arrangement.
Topic: Optional 3 Year Reevaluations based on IDEA 2004
- Q 2. How should districts be documenting the agreement with the parent not to do a 3-year reevaluation?
A 2. IDEA 2004, 20 U.S.C. § 1414(a)(2)(B)(ii) and 34 CFR § 300.303(b)(2), provides that three-year reevaluations are not required when the parent and the district agree that the reevaluation is unnecessary. How this agreement gets documented is up to individual districts to decide, but the Department does recommend documenting these decisions in some manner. No matter what the choice is, to reevaluate or not, a new IEP must still be written at the expiration of the current IEP.
Topic: Mandated Form 28M/3 - Notification of Intent to Use an Unapproved Program & Mandated Form 28M/4 - Application for Funding of Special Education Placement
Special Note: These two forms have recently been combined into a single 28M/3 form called the "Notification of Intent to Place in an Unapproved Program."
A school district must complete and submit this three-page form (28M/3) and obtain prior approval from the Department when it intends to place a student in an unapproved program. School districts are required to send the Department this form on an annual basis for each student placed in an unapproved program. School districts are required to enter into a contract with the private school annually for the purpose of placing a student into an unapproved program.
Please note: Districts had been required to file the former 28M/4 form when the Department had the 50/50 tuition program. With the advent of Circuit Breaker this is no longer required.
If a school district claims expenses under Circuit Breaker then the Department's School Finance Office will check whether the district that placed the student in a unapproved program has completed the paperwork required by PQA, which includes the newly created three-page form.
- Q 3. Should the documentation demonstrating the district's search for an approved program be kept locally, or does it have to be provided to the Department when the Notification of Intent to Place in an Unapproved Program form (28M/3) is filed?
A 3. The supporting documentation should be kept locally and made available to the Department upon request. The Department requires the form 28M/3 in order to verify that the sending school district has met all of the regulatory requirements of 603 CMR 28.06 (3)(e) before it may place a student in an unapproved school.
The 28M/3 form contains the district's signed assurance that all of the required documentation referred to on the checklist page has been completed and will be maintained in the student's file, and the form further directs districts to have this documentation on file for review by the Department when it completes its next scheduled Coordinated Program Review (CPR). In certain cases, however, PQA may require the district to produce this supporting documentation before its next scheduled CPR as a result of a complaint received by PQA's Problem Resolution System or for other reasons.
Topic: Contracts with Approved Special Education Day and Residential Schools
- Q 4. When must contracts for the education of public school students in need of special education and/or related services be entered into between public school districts and approved special education day and residential schools?
A 4. These must be entered into on an annual basis.
Topic: The 30 School Day Timeline for Obtaining Evaluations & the 45 School Day Timeline for Convening a Team Meeting to Review the Evaluation Data
- Q 5. How should districts address the difficulty they experience when contracting with providers for evaluations conducted by Specialists in trying to adhere to the "within 30 school days" timeline in 603 CMR 28.04(2) and the "within 45 school working days" timeline of 603 CMR 28.05(1)?
A. 5. School Districts should do as much advance planning as possible in order to anticipate and have reasonable alternative plans to address any delays that may occur. One strategy is to discuss with parents at the earliest possible point in time any anticipated difficulty in adhering to the timelines and the reasons for any delay. In most cases, parents will work cooperatively and agree to reasonable extension of timelines. However, districts cannot "count" on parents willingness to delay.
Topic: Securing the Paperwork Necessary for Medicaid Reimbursement from Private Special Education Schools Located in States Outside of Massachusetts
- Q 6. How should districts address the difficulty they sometimes experience in getting contracted private special education school outside of Massachusetts to complete the paperwork the district needs in order for that district to obtain reimbursement from Medicaid for such expenses?
A 6. If the district has entered into a valid written contract with an out of state Special Education School that contains a provision requiring certain paperwork be completed and provided to the district, the breach of any terms of that contract is enforceable in court pursuant to Massachusetts contract law. School districts experiencing difficulty in this regard should contact their own legal counsel for advice and any necessary legal action.
Topic: BSEA Statute of Limitations
- Q 7. does the 2-year statute of limitations apply to allegations of a denial of FAPE?
A 7. Yes. Pursuant to IDEA 2004, all impartial due process hearing requests must be received by the BSEA within 2 years of the date the party knew or should have known about the alleged action that forms the basis of the complaint unless a parent was prevented from making such a request based on misrepresentations or withholding of necessary information by the school. See Hearing Rule 1(C) of the Hearing Rules for Special Education Appeals. See also 20 U.S.C. § 1415(b)(b) and 34 CFR § 300.507(a)(2).
Topic: Special Education Advisories, Other Department Guidance issued and BSEA Hearing Decisions
- Q 8. How should districts resolve a conflict in the event that the Department issues a Special Education Advisory or other written guidance that differs from a BSEA Hearing?
A 8. Advisories issued by the Department of Elementary and Secondary Education, i.e., the agency's interpretation of its own regulations, are considered policy and are entitled to "due deference" by BSEA Hearing Officers. As policy, however, they do not carry the force of law as do statutes and regulations. Therefore, school districts would be well-advised to consult their own legal counsel in the event they believe a conflict exists.
Topic: Bureau of Special Education Appeals (BSEA) and the Enforceability of Certain Settlement Agreements
- Q 9. Are locally created settlement agreements concerning educational disputes legally enforceable at the BSEA?
A 9. There are no federal court decisions within the First Circuit and no Massachusetts court decisions that resolve the issue of whether or not locally created settlement agreement are enforceable by the BSEA. Several BSEA decisions have concluded that enforcement of a locally created settlement agreement does not fall within the jurisdiction of the BSEA unless the agreement is included within the student's IEP. See In Re: Dedham Public Schools, BSEA # 05-5290, 11 MSER 155 (2005); In Re: Agawam Public Schools, BSEA # 02-2374, 8 MSER 103 (2002); Andrew v. Norfolk Public Schools, BSEA # 97-2792, 3 MSER 55 (1997); In Re: Timothy W., BSEA # 96-3796, 2 MSER 213 (1996). At the same time, a number of BSEA decisions have effectively enforced agreements by precluding parents from litigating issues before the BSEA where those issues had previously been settled through agreement. See In Re: Dartmouth Public Schools, BSEA # 02-3969, 37 IDELR 113 (2002); In Re: Sharon Public Schools, BSEA # 02-1490, 8 MSER 51 (2002); In Re: North Reading Public Schools, BSEA # 98-0944, 4 MSER 78 (1998); In Re: Sarina, BSEA # 93-2019 (June 1993). Note however that newly promulgated IDEA 2004 regulations provide that written agreements reached as a result of resolution meetings are enforceable in court or by the SEA if the state has other mechanisms or procedures that permit parties to seek enforcement of such agreements. (34 CFR sections 300.510(d) (2) and 300.537) To date, no such procedures have been established by ESE.
- Q 10. Are settlement agreements that have been reached as a result of the BSEA Mediation process enforceable at the BSEA?
A 10. These agreements can be revisited by BSEA Mediators to address enforcement related issues if both parties are willing to participate in such discussions. If a bringing back together of the parties is unsuccessful, however, the aggrieved party may file a Complaint and proceed through the formal BSEA Hearing process.
In addition, newly promulgated IDEA 2004 regulations provide that written agreements reached as a result of a mediation are legally binding and can be enforced through a court of competent jurisdiction (not the BSEA). See 34 CFR § 300.506(b)(7).
Topic: Resolution Sessions based on IDEA 2004
- Q 11. How should districts be documenting the resolution sessions that are taking place and will trainings be offered concerning how to conduct the sessions?
A 11. The BSEA has developed a form which is to be completed and returned to the BSEA when a hearing request is withdrawn because the matter has been resolved through a resolution session. The Department has been investigating opportunities to provide training about the resolution session process.
In addition, Project SPOKE Collaborative will be sponsoring a conference on March 30,l 2007 about conflict resolution and issues resolution. Contact Margaret Reed, 64 W Main St, POB Z, Norton, MA 02766, Phone: (508) 339-3715, FAX: (508) 286-4212, E-mail: firstname.lastname@example.org.
Topic: IDEA 2004 New Team Excusal Option at IEP Meetings
- Q 12. Must a Team member who is being excused from attending an upcoming Team meeting produce written input to the parent and to the other Team members prior to that Team meeting?
A 12. Yes, if the Team meeting will concern a modification to or a discussion of that member's area of curriculum or related services. Otherwise no written documentation from that properly excused Team member is required. See 34 CFR § 300.321(e)(1).
Topic: IDEA 2004 Summary of Student Performance Requirement
- Q 13. When should the summary of student performance be prepared and by whom?
A 13. IDEA 2004 requires that the district address in written form the student's academic achievement; the student's functional performance; and recommendations on how to assist the student in meeting her/his desired postsecondary outcomes (including information on postsecondary courses of study, employment, community experiences, and daily living skills and needs). This summary should be prepared for all students whose special education eligibility terminates due to graduation or exceeding the age eligibility requirements. Districts are free to determine the timing of when they issue this information as well as the person(s) preparing the summary. Districts might choose to issue the summary along with the issuance of the last IEP progress report for the student, for example, or at some other point in time prior to or at the time of the student's exit. Districts are also free to determine the written format they will use. However, the Department developed a recommended format for this summary. See also 34 CFR § 300.305(e)(3).
Topic: IDEA 2004 Making IEP Amendments
- Q 14. Under what circumstances are districts and parents not required to convene an IEP Team in order to amend an IEP?
A 14. In making changes to a child's IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the local educational agency may agree not to convene an IEP meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the child's current IEP. Changes to the IEP may be made either by the entire IEP Team or, as provided above, by amending the IEP rather than by redrafting the entire IEP upon agreement of the parent and the district. Upon request, a parent must be provided with a revised copy of the IEP with any amendments made incorporated in it. See 20 U.S.C. § 1414(d)(3)(D) & (d)(3)(F) and 34 CFR § 300.324(a)(4).
- Q 15. How might districts document the IEP Amendment when doing so by agreement outside of a Team meeting?
A 15. Depending on how the agreement for the amendment is reached, the documentation could consist of a series of email messages culminating in an agreed upon amendment. Alternatively, if agreement is reached verbally, the school district should acknowledge in written form the agreement. This written acknowledgement could take the form of using the N1 form, or through providing the parent with a copy of the amended IEP highlighting the newly agreed to amendment(s).
Topic: The Move In Law and 504 Plans
- Q 16. does the requirement that a student's IEP be fully implemented as soon as a student moves into a town or city pursuant to the Move In Law also apply for students on 504 plans?
A 16. The requirement under 34 CFR § 300.323(e) & (f) that an IEP be implemented by the new community of residence when a student moves is part of the federal special education law and is reiterated in our state special education regulations at 603 CMR 28.03(1)(c). It is not contained in G.L. c. 71B, §5, the so called "move-in" law. Although there is no specific corollary requirement that applies to Section 504 plans, it is certainly best practice for a school district to be responsive to the needs of disabled students as articulated in 504 plans. If a district is unable to implement a 504 plan created in another district, the district should offer to meet with the parents to create a new 504 plan if needed, as soon as possible upon receiving information that the student has required such a plan in the past.
Topic: Highly Qualified Teachers
- Q 17. does the Department have a work group with colleges and universities addressing the issue of Highly Qualified Teachers in the area of special education?
A 17. The Department's Comprehensive System of Personnel Development (CSPD) Advisory Council, composed of representative parents, students, educators, and other interested stakeholders, is currently addressing this issue, among others. From time to time, the Department convenes other groups to discuss issues related to meeting NCLB qualifications for Highly Qualified Teachers.
Topic: DSS Placements
- Q 18. What should a district do if DSS makes a placement for a student and the district does not believe the program can implement the IEP?
A 18. The Department issued an advisory in 2004 that responds to this concern. Please review the advisory and especially section 3 which is entitled "If a child has been placed in a special education day school by a school district in accordance with an Individual Educational Program (IEP) and special education placement determination, and DSS changes the child's residence, the school district is required to continue providing a comparable special education day school type of program until the IEP Team decides to change the child's special education program and placement." This section addresses actions the district should take if it believes the residential school is unable to provide the student's IEP program.
- Q 19. At what point is the district responsible to pay under the above-described circumstances?
A 19. See Administrative Advisories 2004-4 and 2006-4 which address this subject matter. Some excerpts follow:
Upon notification of responsibility for provision of special education to a student the school district(s) shall immediately assume responsibility for the student pursuant to 603 CMR 28.10(8)(d).
A school district may not delay assumption of responsibility for any amount of time, regardless of its belief that an assignment should be revised.
Since the regulations provide for reimbursement to any district that has assumed financial responsibility and is subsequently found by the Department not to have been responsible during the period in question, there is no reason for a school district to delay assuming responsibility. See 603 CMR 28.10(8)(e).
A district that fails to assume its responsibility risks denying a free appropriate public education to an eligible student, because its inaction prevents the student from participating in his or her full IEP program or from receiving other services to which he or she is entitled.
Topic: Response to Intervention and Determining SLD
- Q 20. How can districts comply with the 45 school day requirement in evaluating a student suspected of having a specific learning disability by using a Response to Intervention (RtI) model when it takes 60 days to complete the evaluation?
A 20. Unless school districts have an ongoing Response to Intervention (RtI) program, it is unlikely that initiating one upon referral will be completed within timelines. The Department encourages districts to develop and use a RtI process within their schools to assist all students who are struggling to find the appropriate and effective methods of teaching and learning. In this way, districts will be able to identify to parents an alternative to an immediate evaluation and, with parental agreement, can delay an evaluation for special education eligibility. Used properly, RtI information can be an important part of an evaluation determining if a student is special education eligible. RtI was primarily designed as a student support methodology for general education, however, and should be developed in schools for a similar purpose.
Topic: Determining Residency for Enrollment Purposes
- Q 21. What criteria should districts use in determining the residency of a student for the purposes of enrollment when, on a weekly basis, that student splits his/her time between two towns or cities in Massachusetts?
A 21. Although a person may have only one domicile, it is generally recognized that a person may have more than one residence. Thus, a factual determination must be made as to where a student actually resides. Since the statute does not discuss the method of inquiry, school officials should use reasonable discretion in deciding how to determine the circumstances of a student's residence. If it is determined that a student does in fact reside in two different towns and/or cities, that student is then entitled to attend either of the corresponding public schools.
Topic: Interim Alternative Educational Settings (IAES) Under Special Disciplinary Circumstances
- Q 22. If a special education student is removed from a current educational setting based on specified special disciplinary circumstances and placed into an IAES but dos not attend that IAES right away then when does the 45 school days timeline begin?
A 22. The 45 school days timeline begins upon the student's removal based on specified special circumstances, not upon the placement into the IAES. This is the case even if the student is at home for a period of time as a result of such a removal. See IDEA section 20 U.S.C. § 145(k)(1)(G) and 34 CFR § 300.530(g):
School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability in cases where a student (i) carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency; (ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or (iii) has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.
Topic: Residential Schools
- Q 23. Is a residential school required to also seek approval as a day school?
A 23. No.
Topic: State Performance Plan (SPP)
- Q 24. Will the data required in the SPP Indicators be asked for in the SIMS Report?
A 24. Some of the data will be, but not all of it.
- Q 25. What is the state's timeline for the SPP?
A 25. The SPP timeline is aligned with the federal fiscal years (FFY) starting with FFY '05 (2005-2006) and ending with FFY 2011 (2010-2011) pursuant to 20 USC 1416(b)(1)). See Special Education's Policy and Guidance webpage.
Topic: Waiver of Foreign Language Requirements
- Q 26. May a district waive a foreign language requirement of a special education student?
A 26. The district may have a policy allowing waiver for a foreign language or other class requirements for a special education student. Such policies must be applied fairly and consistently for all students, regardless of disability. Also, the district must provide the parent and student with notice if the waiver will affect the student's eligibility for graduation.