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   IDEA 2004

Archived Information

Special Education

Administrative Advisory SPED 2001-1:
Changes to Massachusetts Special Education Law

To:Superintendents, Charter School Leaders, Special Education Administrators, Directors of Collaboratives, Directors of Approved Special Education Schools and other Interested Parties
From:David P. Driscoll, Commissioner of Education
Date:September 1, 2000

As you may know, the Legislature made significant changes to the Massachusetts special education law through approximately 50 outside sections to the FY01 budget. Eighteen of those sections require changes in the recently revised state special education regulations that take effect on September 1, 2000. Most of the statutory changes that are the subject of this memorandum are in effect immediately; a few take effect January 1, 2001. In order to provide consistency of requirements throughout the 2000-2001 school year, the Department of Elementary and Secondary Education intends to propose all regulatory changes for emergency promulgation by the Board of Education at its September 26, 2000 meeting. This memorandum highlights those sections that have immediate effect on special education practices.

  1. Please note the changes that have immediate effect.

  2. Do not wait until September 26 to implement necessary changes in practice, or, where noted, to maintain existing practice.

  3. Note that revised forms are available on the Department's website in relation to some of these requirements.

  4. The change in the special education standard from "maximum possible development" to "free and appropriate public education" is not in effect until January 1, 2002, and district practices in relation to the standard should not be changed until that time.

  5. Additional information and assistance relating to requirements that take effect later or that relate to other areas of special education practice will be forthcoming in additional advisories throughout this year.

Some of the outside budget sections require maintaining "in force and effect" certain special education regulations. The specific regulations are as follows:

106 re: consent122 re: parent203 re: communication204 re: consent
208 re: consent209 re: consent317.2(f) re: observation319 re: 45 day timeline
320.3 re: evaluation322.22 re: placement502.12(g) re: daily duration508 re: facilities
804 re: transportation18.06-8 re: program and safety requirements for approved private schools

As a result of the legislative action, all of the state special education regulations listed above remain in effect, as they were before the Board of Education revised the regulations earlier this year to take effect on September 1, 2000. School districts (including charter schools) and, where applicable, approved special education day and residential schools must continue to comply with the regulations listed above, notwithstanding amendments adopted by the Board. When the Board of Education adopts emergency regulations at its September 26, 2000 meeting, the pre-existing legal requirements contained in the regulations listed above, and not contained in the current Section 28.00 regulations, will be fully incorporated.

The information following is organized by section of the state special education regulations, 603 CMR 28.00. Since emergency regulations have not yet been promulgated, we are not yet providing the specific regulations where regulatory language will change.

Section 28.02: Definitions

  1. Definition of "consent." The law maintains the definition of "consent" in the regulations that had been in effect through the 1999-2000 school year. Since this definition tracks federal language, this action does not change local practice because districts must follow federal requirements.

  2. Related Services. The revised state law expands the definition of "school age child with a disability" to include eligibility when a student with a disability requires related services alone if such services are necessary to access the general curriculum. This change preserves the educational focus of special education and requires school districts to find students eligible if, because of a disability, they are unable to progress effectively in regular education and require special education services, "including a school age child who requires only a related service or services if such related service or services are required in order to ensure access of the child with a disability to the general education curriculum." This substantive change means that eligibility Teams must ask the following questions:

    1. Does the student have a disability? What type?
    2. Does the disability cause the student to be unable to progress effectively in regular education?
    3. Does the student require specially designed instruction to make progress?
    4. If the student does not require specially designed instruction, does the student require a related service or services in order to access the general curriculum?
    Teams must answer yes to each of the questions 1 & 2, identify the type of disability, and answer yes to either 3 or 4 in order to find a student eligible for special education.

    This change affects the definition section and the section in the state special education regulations relating to making an eligibility determination (28.05).

    Additionally, a recently released form related to eligibility determinations has been revised to reflect changed requirements. Please download revised form ED-1 [ PDF || MS WORD ] from the special education section of the Department website.

Section 28.03: School District Administration and Personnel

  1. Facilities. The law maintains in regulations the requirement that districts ensure that all students have access to school facilities including, but not limited to, those areas necessary to implement the student's IEP.

  2. Curriculum Accommodation Plan. The law now requires each district to adopt a Curriculum Accommodation Plan ("CAP") for the purpose of assisting principals in ensuring that all efforts have been made to meet students' needs in regular education. The plan is a systemic plan that will be adopted by the district, and although it does not require individual written plans, the intent is to increase the general education capacity to meet the individual needs of diverse student learners. School principals and school councils are involved in developing and implementing the CAP at the school building level. The CAP is considered an educational activity for the general education program, not solely or specifically special education. Additional information will be provided during the course of the 2000-2001 school year regarding this requirement.

Section 28.04: Referral and Evaluation

  1. Consultation on evaluators used. School districts are now required to provide the student's parent an opportunity to consult with the Special Education Administrator or his/her designee regarding the evaluators who will be used by the school district to conduct any individual evaluation, including the initial evaluation to determine eligibility and any subsequent reevaluations. This requirement may be met by meeting with the parent prior to an evaluation or by incorporating information on this consultation opportunity in the notice sent to the parents when a district is requesting permission to conduct an evaluation. The intent of this new requirement, in conjunction with the existing requirement to consult with the parent on the types of assessments recommended, is to assist the parent to be involved in the planning for the evaluation conducted by the school district in order to maximize parental satisfaction with the district evaluation.

  2. Independent evaluation—sliding fee scale. The law now requires the Department to establish in regulations a sliding fee scale for independent educational evaluations. Although this provision is not in effect until January 2001, the Department will recommend that the Board include this in the emergency regulations in September 2000, to simplify implementation during the 2000-2001 school year. As soon as such regulations are passed, the Department will provide detailed assistance on how to implement this requirement.

Section 28.05: The Team Process and Development of the IEP

  1. Related Services. The law now requires that, when determining eligibility for special education, the Team must consider if the student needs only related services in order to access the general curriculum. See the discussion of this issue in "B" of Section 28.02: Definitions of this memorandum. Additionally, a recently released form related to reporting eligible students has been revised to reflect changed requirements. Please download revised form PL-2 [ PDF || MS WORD ] from the special education section of the Department website.

  2. Transportation. The law maintains specific requirements regarding transportation of students in wheelchairs and information that the Team must include on the IEP. Other transportation requirements are also maintained and will be reflected at section 28.06, including specific training for transportation providers and equipment inspections by the district.

  3. Placement determination. The law maintains requirements related to the Team's participation in making placement decisions. The Team's decision on type of placement may be accompanied by recommendations of specific classrooms or schools. The school district may make the final determination of the specific classroom or school assigned, however, the district must abide by the Team's decision on placement type, must give careful consideration to the Team's recommendations for specific classrooms or schools, and must ensure that final placement is made in compliance with the IEP, the LRE requirements, and requirements related to giving preference to approved programs.

28.06: Placement Types and Service Options

  1. Five days advance notice. The law now requires districts to provide five days advance notice of a scheduled Team meeting to other districts that may be financially responsible for a student's special education program.

  2. Preference to in-state programs. In addition to the preference that districts must give to approved day and residential programs, the law now requires preference for in-state programs, if they are the least restrictive placement, when districts are making out-of-district placements of students. The law does not require school districts to return students in-state if they are currently appropriately served in out-of-state settings.

  3. Unannounced visits. The law prohibits any limitation on unannounced visits to out-of-district placements. Therefore, the school district that places a student in an out-of-district placement may make unannounced visits to the placement at its discretion.

28.07: Parent Involvement

  1. Consent requirements. The law maintains specific regulatory requirements related to parent consent. Note also that the definition of "consent" is also maintained as previously stated in "A" of Section 28.02: Definitions of this memorandum. Maintenance of these requirements has the following effects:

    • School districts may not proceed to evaluate or serve students after documenting multiple attempts to involve non-participatory parents. If parents refuse to participate and/or consent, except for initial evaluation and initial placement, the district must assess whether such lack of participation or response results in a loss of a free and appropriate education for the student. If so, the district immediately must proceed to the Bureau of Special Education Appeals to resolve the matter.

    • The law maintains the requirement that parental consent is required for the initial and each subsequent placement of a student. A recently released form related to placement has been revised to reflect changed consent requirements. Please download revised form PL-1 [ PDF || MS WORD ] from the special education section of the Department website.

  2. Parent Advisory Council. The law maintains the requirement that every district establish a districtwide parent advisory council for parents of students with disabilities. Additionally, each year, districts are responsible to provide training in parent and student rights and responsibilities concerning special education, in accordance with a specific curriculum that will be developed by the Department in cooperation with parent groups.

  3. Communications with Parents. The law maintains requirements related to communications with parents and students when the primary language of the home is other than English. This action has no substantive effect because these requirements appear in the federal regulations for special education.

28.08: Continuum of Options for Dispute Resolution

Authority in relation to other state agencies. The new law authorizes the Bureau of Special Education Appeals to order other state agencies to deliver or pay for services in accordance with the rules, regulations or policies of that agency, if appropriate.

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

The law requires reinstatement of certain regulatory requirements related to program and safety requirements for approved schools. These requirements will be incorporated throughout section 28.09 of the regulations and will apply to all programs, both public and private, seeking approval from the Department for day or residential special education school programs. A selection of the reinstated requirements includes:

  1. Facility requirements. Certain requirements are maintained related to the appropriateness of facilities, materials, and their safety for the population served.

  2. Parent advisory group. The requirement that every approved special education school establish a parent advisory group is maintained.

  3. Prohibited practices. Specific prohibitions of certain disciplinary practices are maintained.

  4. Restraint requirements. Certain requirements on restraint are reinstated and will be included in new regulations in this area that are now authorized by law. The Department will bring proposed regulations on the use of restraint on students to the Board meeting in November for authorization to release for public comment.

In closing, this memorandum provides an outline of key changes in special education that have an immediate impact on special education in Massachusetts. Questions regarding these requirements may be addressed to Program Quality Assurance Services at (781) 338-3700. The Department will provide additional information during the school year. Thank you for working with us for the benefit of students.

Last Updated: September 1, 2000
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