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Archived Information

Special Education

Administrative Advisory SPED 2001-2:
Compliance Activities Required by the U.S.
Office of Special Education Programs (OSEP)

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

The Department of Elementary and Secondary Education recently received a report from the U.S. Office of Special Education Programs (OSEP) reflecting on monitoring activities that took place in Massachusetts during the 1998-99 school year. The monitoring report and Massachusetts' preliminary response are posted on the Department of Elementary and Secondary Education website under special education. Districts will be learning about the findings and various actions in which the Department and school districts will engage during the coming year.

Certain practices that had been found non-compliant in either the 1991 OSEP monitoring or the 1995 OSEP monitoring or both, continue to occur in Massachusetts schools as evidenced by the 1999 monitoring report and are considered "serious systemic noncompliance." The two areas we must address immediately are related to:

  1. the development of the IEP at the Team meeting; and,

  2. placement practices that may conflict with least restrictive environment (LRE) requirements.

Inappropriate practices in these areas, if not corrected, may jeopardize services for students with disabilities as well as Massachusetts' receipt of over $110 million in federal special education funds. For that reason, I am writing to you to highlight your responsibilities in these two key areas related to OSEP's findings and I urge you to take steps to ensure that your district's and schools' practices are appropriate and consistent with the requirements of law. Massachusetts must demonstrate systemic compliance in these areas and ensure that all districts implement procedures that are fully consistent with federal requirements.

More detail in these two areas of concern is provided below. Please note that OSEP based its findings on a sample of school districts. OSEP acknowledged in its report that there was variation in implementation in Massachusetts districts; some districts do very well and others do not. Although your district's practices may be appropriate in one or both of these areas, please carefully review the requirements for each area and the OSEP findings to ensure that your understanding and practice of appropriate procedures is consistent with the requirements of law. The ten districts visited during the 1998-99 OSEP monitoring activities will be contacted soon by our Program Quality Assurance Services unit regarding specific followup monitoring in these areas.

I. Development of the IEP at the Team Meeting:

  1. All components of the IEP must be determined by the IEP Team in a meeting with all required participants.

    • The requirements: 34 CFR 300.347 identifies the components of the IEP and includes, among others, the components related to transition planning. 34 CFR 300.29 defines "Transition services." 34 CFR 300.344 identifies the required Team participants and requires that the IEP Team be composed of a group that includes the parents of the child with a disability; at least one regular education teacher of the student (if the student is, or may be, participating in the regular education environment); at least one special education teacher; a representative of the public agency; at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the student; and whenever appropriate, the student. 34 CFR 300.343 requires annual meetings to develop, review, and revise IEPs as necessary. 34 CFR 300.343 details the efforts districts must make to involve parents.

    • OSEP's findings: OSEP found that Massachusetts districts did not make sufficient efforts to ensure parental participation in IEP meetings; even though parents are notified in writing about a Team meeting, this notification is sent only once. OSEP did not find evidence that school districts had taken additional steps to encourage parents to attend. Additionally, OSEP found that general education teachers did not consistently participate as Team members for students who received at least a portion of their education in the general education classroom. OSEP found that IEPs for students 14 years of age or older did not include required information related to transition or needed transition services.

  2. Each IEP accurately reflects the decisions made by the IEP Team regarding the content of each of the IEP components.

    • The requirements: 34 CFR 300.343 requires school districts to conduct meetings for the purpose of developing, reviewing, and revising the IEP. The IEP Team is responsible to complete all required components of the IEP.

    • OSEP's findings: OSEP found that annual goals and short-term objectives were not developed during a meeting with the required participants, but were developed afterwards and sent to the parent. In addition, parents and local school district personnel have different understandings of the purpose and use of "draft" or "pre-organized" IEPs that are brought into IEP meetings by school staff. Parents stated that they believe the "draft" IEP is a finished product into which they have no input and which does not represent their concerns, ideas, and wishes for their child.

  3. None of the components of the IEP are subsequently changed, outside of an IEP meeting, by school district staff.

    • The requirements: 34 CFR 300.344 requires that the IEP Team include a representative of the public agency who is "knowledgeable about the availability of resources of the public agency." This requirement has consistently been interpreted to mean that the district representative serving in this role has authority and responsibility to commit resources at the Team meeting.

    • OSEP's findings: OSEP found that IEP Teams were unable to commit to needed services for students with disabilities because services are reviewed and approved by a higher authority. Decisions that change from the IEP meeting to the IEP document include: 1) agreed upon goals and objectives for the student; 2) the extent to which the student will be involved in and participate in the regular education environment and State and District-wide assessments; and 3) the services needed to support that involvement and participation.

Massachusetts has taken steps to assist districts to meet the requirements in Section I(a-c):

  1. Revision of state special education regulations removed a regulation allowing the school district up to ten days to produce a copy of the IEP for the parent, and now requires that the parent receive a copy immediately following the development of the IEP. 603 CMR 28.05(7)

  2. Monitoring criteria have been strengthened in these areas and will assist in identifying school district's compliance with state and federal requirements.

  3. Complaints received through the Department's Problem Resolution System related to these areas will be tracked and districts will be required not only to respond to and resolve the complaint but also to demonstrate that training has been provided to ensure that staff of the district understand the requirements.

  4. A new IEP form incorporating all required components, including transition requirements, has been developed and statewide training occurred in Spring 2000. All districts are expected to begin using this form in September 2000. Training emphasized that all elements of the IEP must be completed by the Team at the IEP meeting. Follow-up training during 2000-2001 will continue to emphasize these expectations.

  5. School districts must ensure that multiple efforts are made to involve parents in IEP Team meetings or, if parents are unable to attend, to ensure in some other fashion, parental input to the IEP.

  6. School districts must ensure that a person fully able to commit district resources is either present at the IEP Team meeting, or immediately available to the school district representative who does attend the Team meeting, in order to ensure that service decisions made at the Team meeting are not subject to change after the meeting occurs.

  7. School districts should encourage parents to respond to the proposed IEP as soon as possible following its development and ensure that the student receives required services immediately following parental consent for such services.

II. Placement and the Least Restrictive Environment Requirements:

  • The requirements: 34 CFR 300.550 requires that all students with disabilities, including students placed in separate classes or schools, are educated to the maximum extent appropriate with nondisabled students. Students with disabilities are not removed from the general education environment unless the nature or severity of their disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR 300.551 requires a continuum of alternative placements to meet the needs of students with disabilities. 34 CFR 300.552 requires that placement decisions are based on the IEP, are as close as possible to the student's home, and do not remove a student from education in age appropriate regular classrooms solely because of needed modifications in the general curriculum. 34 CFR 300.347 requires that the IEP include any services necessary for the student to be involved and progress in the general curriculum, participate in extracurricular and other activities, and be educated and participate with other students with and without disabilities. The IEP must also include an explanation of the extent to which the student will not participate with nondisabled students in curricular, extracurricular, and other non-academic activities.

  • OSEP's findings: OSEP generally found that elementary schools do a much better job with inclusion than middle and high schools. Data indicated that students with disabilities do not have access to the full range of support services and accommodations necessary to participate in regular education classes and non-academic activities with nondisabled students. Students in separate classes were included in general education classes with their peers only for "specials," such as art and music, with no individual determination of the portions of the day for which they could be educated with nondisabled students. OSEP found that the explanation on the IEP of the extent, if any, to which a student with disabilities will participate with non-disabled students was not individually determined based on the needs of the student. Reasoning was either not explained, explained based on a standard level of academic achievement, or explained with insufficiently general language such as "consensus of the Team."

OSEP found that, in some districts, participation for students with disabilities in specific programs or activities was denied based on the preferences of individual teachers or contingent on agreement to demands for funding, resources, or staff, and was not based on the individual needs of the students nor a non-discriminatory policy. Students with behavior issues were consistently "required" to attend segregated programs. Students with severe disabilities had little to no opportunity to participate in activities with nondisabled students.

OSEP found that location of separate programs was often determined because of space availability and administrative convenience. School districts often remove collaborative programs from comprehensive school buildings in order to accommodate school district space needs and with little regard for LRE considerations for the students served in the collaborative program. Districts consistently reported policies or funding concerns resulting in limited access to services, assistive technology, or other needed supports that would have increased students' ability to participate in general education classes.

OSEP found that general educators often do not participate in planning goals or objectives for students with disabilities and do not participate as members of the Team. When students are served in separate environments, it was reported that participation of general education staff on the Team was never considered, because it is already assumed that the student would not be participating in the general education environment.

OSEP found, based on reports of teachers and administrators, that the point system used to determine admissions to vocational schools emphasized academic achievement and good behavior, and, in combination with the quota system giving a predetermined number of student slots for each school in the region, resulted in limited admission opportunities for students whose disabilities resulted in behavior problems or below average academic skills. OSEP found that IEP Teams were not used to consider services or supports that would have enabled students to participate in regular vocational programs.

Massachusetts has taken steps to assist districts to meet the requirements of Section II:

  1. Revision of state special education regulations emphasizes the district's continuing responsibility for students placed in out-of-district programs and requires regular monitoring of the appropriateness and adequacy of the program. Revised regulations emphasize LRE requirements and address specific situations where problems have arisen in the past. (For example, charter schools are required to provide special education services if those services would be available in the original district of residence rather than placing the student in an out-of-district placement. 603 CMR 28.03(4)(i)(1)) Additionally, the revised regulations allow the district to convene a separate placement Team meeting up to fifteen days after the IEP Team meeting. 603 CMR 28.06(2)(c) This additional time allows the district to explore in-district capacity and prevents automatic out-of-district placement for students with complex needs.

  2. Revisions of state special education regulations removed the long-standing practice of characterizing placements by "prototype" - use of prototypes had resulted in acceptance of a "prototype" determination as sufficient to determine amount of inclusion that a student received and limited consideration of individual needs and individual abilities of students. The Department has provided training, and will continue to do so, to emphasize that each student's program and placement must be individually determined and not force-fitted to a particular placement description.

  3. Monitoring criteria have been strengthened in these areas and will assist in identifying districts not following state and federal requirements.

  4. Complaints received through the Department's Problem Resolution System related to these areas will be tracked and districts will be required not only to respond to and resolve the complaint but also to demonstrate that training has been provided to ensure that staff of the district understand the requirements.

  5. The new IEP form does not include placement information. The revision of the overall process emphasizes that the placement decision is based on the student's IEP. Our revised process provides a separate form for consideration of placement needs based on the IEP services that have been identified by the Team. Additionally, within the IEP, the requirements of the law are restated and the Team is required to explain specifically any removal of the student from the general education program.

  6. Massachusetts has had a long-standing funding program providing direct financial assistance for placements made by school districts to separate residential programs. That program (known as the 50/50 program) has been revised by the state Legislature and funding, beginning in FY 2002, will be based on the cost of the overall student program. Reimbursement for programs serving students in less restrictive environments will be somewhat higher than reimbursements for students served out-of-district. This will serve as a strong support to districts to develop in-district supports and services and to encourage service to students with disabilities in the least restrictive environment.

In closing, we hope this information is helpful to districts in ensuring that local practices are consistent with requirements. We urge districts to take immediate steps to correct any practices that do not conform with federal special education law and regulation. Further information will be forthcoming throughout this year on these and other findings related to Massachusetts' compliance with federal requirements.



Last Updated: September 1, 2000
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