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Archived Information

Special Education

Administrative Advisory SPED 2006-4:
Assignment of Financial and Programmatic Responsibility for Special Education and Enforcement of Assignments

Attachment A: 603 CMR 28.10(8) and (9)

Excerpt from the Mass. Special Education Regulations on Department Assignment of School District Responsibility

(8) Department Assignment of School District Responsibility.

(a) The Department may assign or a school district or agency may request the Department's assistance in assigning a city, town, or school district to be responsible for students in living situations described in 603 CMR 28.10(3) or (4)

  1. who are in the care or custody of a state agency and have no parent or legal guardian residing in Massachusetts; or

  2. when the residence or residential history of the student's parent(s) or legal guardian is in dispute; or

  3. when the student has a legal guardian who has been appointed on a limited basis; or

  4. when a student has not yet been determined to be eligible and/or is not receiving services, or

  5. when a student is in the care or custody of a state agency and is hospitalized and the agency gives notice to the responsible school district that the student will not return to the residence held prior to hospitalization.

(b) A request for an assignment shall not limit the right of the student to timely evaluation, services, or placement in accordance with 603 CMR 28.00. The school district or state agency requesting assignment shall be responsible for providing to the Department all required documentation to ascertain the legal status or residence(s) of the student or the student's parent(s) or legal guardian.

(c) The Department shall use the following criteria to assign a city, town or school district responsibility for a student in a living situation described in 603 CMR 28.10(3) or (4):

  1. If the child has been voluntarily surrendered for adoption or freed for adoption by the Probate Court or the Juvenile Court, the school district(s) where the parent(s) lived at the time that the child was surrendered or freed for adoption or when parental rights were terminated shall be responsible.

  2. If the student is in the care or custody of a state agency and such state agency has obtained a legal guardianship for the student when the student has turned 18, the school district(s) where the parent(s) lived at the time the court granted the request for guardianship shall be responsible.

  3. If the parents' rights have been terminated and the Probate Court or the Juvenile Court has appointed a legal guardian for a minor student, the school district where the legal guardian resides shall be responsible.

  4. If the legal guardian is an agency or organization or the legal guardian has been appointed on a limited basis such as a guardian ad litem, or a guardian appointed solely to monitor medications or finances, the school district where the parent(s) lives or last lived shall be responsible.

  5. If the student's parents live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the student actually resided with either parent immediately prior to going into a living situation described in 603 CMR 28.10(3) or (4) or the parents are divorced or separated and one parent has sole physical custody, then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible and shall remain responsible in the event the student goes into the care or custody of a state agency.

  6. If the student's parent(s) or legal guardian resides in an institutional setting in Massachusetts, including, but not limited to, a correctional facility, a hospital, a nursing home or hospice, or a mental health facility, a halfway house, a pre-release center or a treatment facility, the school district where the parent(s) or legal guardian lived prior to entering the institutional setting shall be responsible.

  7. If the student's parent(s) or legal guardian does not reside in Massachusetts, and the parent's or legal guardian's whereabouts are unknown, the school district of the last known Massachusetts residence of the student's parent(s) or legal guardian who lived in Massachusetts shall be responsible.

(d) Using the above criteria, the Department shall notify in writing the assigned school district(s) of its decision. Upon notification of responsibility for provision of special education to a student under 603 CMR 28.10(8)(d), the school district(s) shall immediately assume responsibility for the student in accordance with the requirements of 603 CMR 28.00. Until such notification, the school district(s) that had been responsible for providing special education to such student under 603 CMR 28.00 shall continue to be responsible.

(e) The school district(s) that had been responsible for providing special education to the student prior to assignment by the Department under 603 CMR 28.10(8)(d) may bill and shall be eligible to receive payment (using the procedures of 603 CMR 10.07 to calculate such costs, including transportation expenses where applicable), from the newly assigned district for the special education costs that were incurred during the period of time in which the newly assigned district should have been responsible.

(f) A school district may seek a review of the Department's assignment under the procedures of 603 CMR 28.10(8) at any time that the district has information that was not available to the Department at the time that the assignment was made. The Department will review the information presented and will confirm or change the assignment of school district responsibility, and notify the districts of this decision under 603 CMR 28.10(8)(d).

(9) Appeal of Assignment of School District Responsibility. The assigned district may appeal the Department's assignment of responsibility to the Bureau of Special Education Appeals, subject to the following procedures:

(a) A district may appeal the assignment of school district responsibility within 60 days of the most recent notification of assignment.

(b) The request for appeal shall meet the following standards:

  1. A request for appeal shall be based only on the information provided to the Department under 603 CMR 28.10(8)(b) and 603 CMR 28.10(8)(f) if applicable;

  2. The request shall state the basis of the appeal;

  3. The request for appeal shall identify the district(s) that the appealing district claims should have been assigned responsibility; and

  4. The appealing district shall include such district(s) as a party to the appeal.

(c) A party may request a decision without a hearing with the agreement of all parties.

(d) The Bureau of Special Education Appeals shall render a decision within 45 days of receipt of the hearing request. The granting of a postponement shall not extend the 45-day deadline for issuance of a decision unless the postponement is requested by a party and allowed by the hearing officer for good cause.

(e) The Bureau of Special Education Appeals may return the case to the Department of Elementary and Secondary Education based on new information presented at the hearing.

(f) The decision of the Bureau of Special Education Appeals shall be limited to a determination of the assigned school district and the effective date of such assignment.

See a complete copy of regulation 603 CMR 28.10.



Last Updated: January 10, 2014
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