Technical Assistance Advisory SPED 2014-5:
Charter School Responsibilities for Students with Disabilities Who May Need an Out-of-District Program - 603 CMR 28.10(6)
Superintendents, Charter School Leaders, Administrators of Special Education, Parents, and Other Interested Parties
Marcia Mittnacht, State Director for Special Education
Cliff Chuang, Associate Commissioner
August 22, 2014
Purpose of Advisory
This advisory is designed to provide guidance to charter schools on the process to follow after an eligible charter school student's IEP Team determines that an out-of-district program for special education services may be needed. This issue is addressed at 603 CMR 28.10(6).
All Massachusetts public charter schools are required to accept, enroll, and serve students with disabilities and to provide a free and appropriate public education to those students in the least restrictive educational environment. Charter schools may not consider a student's disability or the services that may be required to serve a student-including students who may be in out-of-district programs at the time of application for admission-in determining whether to admit the student.
The requirements of the federal Individuals with Disabilities Education Act (IDEA) and state special education law and regulation apply to charter schools, with the limited exceptions described below. To meet these requirements, charter schools must provide specially designed instruction and related services according to an IEP for each student with a disability and seek out, identify, and serve students who may require special education services.
While charter schools are generally considered separate school districts, for purposes of this discussion, terms will be used as follows:
"School district of residence" (SDOR) refers to the public school district that an eligible student would attend if not enrolled at the charter school.
An "out-of-district program" is defined in state regulations at 603 CMR 28.02(14) as "a [full day or residential] special education program located in a building or facility outside of the general education environment that provides educational services primarily to students with disabilities and shall include all programs approved under 603 CMR 28.09. Such program may be operated by a private organization or individual, a public school district, or a collaborative." 603 CMR 28.10(6)(a)(1). Note that a specialized or substantially separate program operated within a school district building that serves students with and without disabilities is not considered an out-of-district program.1
There are three types of out-of-district special education programs:2
- Approved public day schools. These are special education full day programs approved by the Department of Elementary and Secondary Education pursuant to 603 CMR 28.09 and operated by a public school district or a collaborative, and are located in separate buildings and attended exclusively by students receiving special education services.
- Approved private day programs. These special education full day programs approved by the Department of Elementary and Secondary Education pursuant to 603 CMR 28.09. These programs serve publicly funded students and are operated by a private entity. They are located in separate buildings and attended exclusively by students receiving special education services.
- Approved private residential programs. These special education 24-hour residential and day program combinations operate pursuant to 603 CMR 18.00 and are approved by the Department of Elementary and Secondary Education pursuant to 603 CMR 28.09. These programs serve publicly funded students and are operated by a private entity. They are located in separate buildings and attended exclusively by students receiving special education services.
"An 'in-district program' is a special education program operated in a public school district building or other facility that provides educational services to students of comparable ages, with and without disabilities 603 CMR 28.02(10). This is true regardless of the level of interaction between the two groups of students.
Responsibility for Educating Students with Disabilities
Charter schools are required to make available a full continuum of in-district special education services to their students with disabilities who have an IEP and a placement determination that is considered "in-district." When a student with a disability "moves" to another public school district (i.e., the charter school), the last accepted IEP from the former district should be implemented by the charter school in a comparable setting until a new IEP is developed and accepted, as appropriate.3 In most cases, this will mean that charter schools will be providing all needed special education services to their enrolled students with disabilities on the premises of the charter school. The charter school and parent are encouraged to think creatively to address the students' needs within the charter school, and make every effort to keep the student in the least restrictive environment.
In some circumstances, a charter school may have difficulty meeting the needs of a student with a disability due to the nature or severity of that student's disability. Ideally, with good collaboration, the SDOR could be invited to join the charter school in seeking to problem solve how to best serve the student in the charter school environment. If the student then cannot be well-served despite clear and multiple documented efforts to find the right mix of services for the student, then both parties will be knowledgeable about the efforts that have been made. In any case, if the charter school IEP Team determines that the student may require an out-of-district program, then there are specific requirements that must be met in order to offer an out-of-district program, as outlined in the next section of this advisory.
Procedure for Consideration of Placement in an of Out-of-District Program
The IEP Team's role. If a charter school IEP Team determines that a student may be in need of an out-of-district program, the IEP Team is required to conclude its meeting (the "IEP meeting") without identifying a specific placement and move forward as follows:
First, within two school days,4 the IEP Team will schedule another meeting5 to consider the student's placement6 (the "placement meeting") and will invite a representative of the student's SDOR to attend and participate as a member of the IEP Team during the placement phase of the IEP development process.7 The SDOR must be given at least five school days' notice of the placement meeting, which must be held within ten school days following the IEP meeting at which the potential need for an out-of-district program was initially determined.8 See Figure 1 below.
Investigation of Available In-District Program Options. Prior to the placement meeting, the charter school and the parent(s) are required to consider if there is any other means of serving the student at the charter school. The Department encourages the charter school and parents to think as creatively as possible. The parent and the charter school representatives should discuss the parent visiting (with the cooperation of the SDOR) an SDOR existing in-district option if they believe it might meet the student's needs and is available.9 Parents and charter schools are encouraged to share information with the SDOR so they may appropriately identify placement options.
Investigation of Out-of-District Programs. If the SDOR has indicated prior to the meeting that no existing in-district programs are currently available at the SDOR, then the parent and charter school may consider and investigate what options may be available in out-of-district programs in the area that would be able to provide the services on the student's IEP. Parents are not encouraged to investigate out-of-district programs unless in-district services are highly unlikely to meet the needs of the student. Parents are reminded that the special education law requires that students are placed in the least restrictive environment appropriate to meet their needs.
In-District Placement. At any time before the placement meeting, the charter school and the parent may agree on an in-district program option that can be made available at the charter school. If they do not agree, at the placement meeting, the placement Team must first consider whether the SDOR has an in-district program that is able to provide the services that are recommended by the IEP Team, either alone or as a supplement to services available at the charter school. If there is such in-district programming available, the placement Team must propose an in-district program to the parent.10 The services contained in the ultimate IEP may be delivered in the charter school itself, through a program located in the SDOR or a combination of both. For example, the charter school may:
- Independently develop and offer the in-district program described in the IEP at the charter school.
- Join, form, or purchase services from educational collaboratives or other partners to provide or support the provision of some or all of the services described in the IEP.
- Collaborate with the student's SDOR to establish and operate a program at the charter school that meets the needs of the student.
- Collaborate with the SDOR, including contracting with the SDOR to provide services to the student.
In any case, when in-district programming is proposed by the placement Team and the student remains enrolled in the charter school, the charter school retains programmatic and financial responsibility for the student. The charter school has full discretion over where it will propose to deliver any in-district programming. The charter school is not required to contract with the SDOR for service delivery unless the charter school chooses to do so.
Because enrollment at the charter school is always voluntary on the part of the parent, the parent may elect to disenroll from the charter school and enroll, instead, back at the SDOR for any reason. However, the charter school may not require the parent to disenroll at any time as a condition for receiving any service, except when the student is to be educated in an out-of-district program.
Out-of-District Placement. If the placement Team, including the SDOR, agrees that the student cannot be served in-district, then the placement Team shall determine that the student requires an out-of-district placement.11 The placement proposed to the student's parent will be in an approved public or private out-of-district day or residential school that has been identified as capable of providing for the student's special education services.12 If the parent consents to a proposed out-of-district placement type or specific out-of-district placement, then the programmatic and financial responsibility for the student's special education program reverts to the SDOR.13
Dispute Resolution. The Bureau of Special Education Appeals (BSEA) is available to make decisions in the event of a dispute. The charter school Team cannot act independently to offer an out-of-district placement except if the SDOR declines to attend the placement meeting14. The SDOR may not simply refuse to agree to an out-of-district placement. At a minimum, the SDOR must offer an appropriate in-district program in the SDOR that is available to the student upon acceptance of the placement by the parent.15 In the event that the charter school, the SDOR, and the parent cannot agree on the placement for the student, then the student will be educated in the last agreed-upon placement (at the charter school) until the dispute is resolved through the BSEA.
1 As defined, the term "out-of-district program," when used with students with disabilities, specifically relates to the lack of opportunities that students with disabilities have to interact with non-disabled peers. In addition, a program is not "out-of-district" simply because it is not offered within the charter school. It must be one of the three-types outlined in the regulations.
2 These program definitions do not use the exact language of the special education regulations; additional language is added here for clarity in this context.
3 603 CMR 28.03(1)(c). Please note that a "comparable setting" in the charter school may depend on the programs and services available in the charter school and may not necessarily replicate the exact structures or programs outlined in the last accepted IEP. The school should provide these comparable programs and services without delay until a new IEP is developed and accepted by the parent.
4 603 CMR 28.10(6)(a).
5 Unlike the provision in 603 CMR 28.06(2)(e) that provides a school district discretion to hold a separate Team meeting to determine placement, 603 CMR 28.10(6)(a) requires a charter school to schedule a separate Team meeting to discuss a student's placement if an out-of-district placement is being considered.
6 603 CMR 28.10(6)(a)(1).
7 603 CMR 28.06(2)(e)(1).
8 603 CMR 28.06(2)(e). The charter school should use multiple means of communication to contact the SDOR. If no response is received from the SDOR, the charter school may proceed with the placement meeting.
9 603 CMR 28.06(2)(e)(2). The SDOR is not required to allow the parent to visit the program prior to the placement meeting, but may find it helpful for the parent to do so since the parent will be more fully informed about the option during placement discussion. If the parent does not visit the SDOR's program and the placement Team identifies and proposes that program to the parent, the parent will then have the right to observe the program. 603 CMR 28.07(1)(a)(3).
10 603 CMR 28.10(6)((a)(2).
11 603 CMR 28.10(6)(a)(3). See also 603 CMR 28.06(2)(e)(3): "At the placement meeting, the district and parent shall report on the investigation of in-district and out-of-district options. If an in-district program can provide the services on the IEP, such a program shall be identified at the placement meeting …; if not the placement Team shall identify an out-of-district placement."
12 603 CMR 28.10(6)(a)(3).
14 The charter school should use multiple means of communication to contact the SDOR and should document their attempts. If no response is received from the SDOR, the charter school may proceed with the placement meeting.
15 No later than 30 days after receipt of the proposed IEP and proposed placement, the parents are required to accept or reject the proposals in accordance with the options spelled out at 603 CMR 28.05(7).