Technical Assistance Advisory SPED 2020-3
Recommended Advance Planning for a Student with an IEP Accepted for Enrollment in a METCO District
|To:||Administrators of Special Education, Superintendents, Charter School Leaders, Vocational School Leaders, Parents, Guardians, and Other Interested Parties|
|From:||Russell Johnston, Senior Associate Commissioner |
Cliff Chuang, Senior Associate Commissioner
|Date:||June 11, 2020|
In this advisory, the Department of Elementary and Secondary Education ("the Department") recommends voluntary advance planning practices for school districts and parents1 of a student with an Individualized Education Program (IEP), after that student has been accepted for enrollment in a METCO district and before the student begins to attend. Sending districts and METCO districts must continue to comply with the federal Individuals with Disabilities Education Act (IDEA) and Massachusetts special education regulations.
The purpose of these recommended advance planning practices is to promote excellent communication and collaboration among sending districts, METCO districts, and families, so that the student transitions smoothly to the METCO district and receives a free appropriate public education (FAPE).2 These practices are also intended to promote equity by ensuring that all families have procedural protections during their initial interactions with districts after student acceptance.
The Department emphasizes that METCO districts cannot discriminate against students with disabilities. Neither the existence nor the extent of a student's disability can be considered or used as a reason to not accept a student with a disability into a METCO district. Sending districts and METCO districts must not pre-judge a student's likelihood of success or failure in a METCO district based on the student's previous placement type(s), or on preconceptions, biases, or generalizations. Furthermore, the advance planning practices described in this advisory cannot be used to counsel a student out of enrolling in a METCO district.
For the purpose of this advisory:
"Local Education Agency (LEA)" means a public authority legally constituted for administrative control of public elementary schools or secondary schools.3 In Massachusetts, each school district is an LEA.
"Sending district" means the LEA in which the student is enrolled during the advance planning process described in this advisory. In most cases, the sending district will also be the student's district of residence. If the student is not yet enrolled in public school (e.g. a young child applying for kindergarten), the sending district is the student's district of residence.
"Placement" means the setting in which special education services will be provided, with a continuum of placements4 ranging from the general classroom with varying amounts of supports, to substantially separate classes, to special separate schools, and finally to hospitals and institutions. A sending district or METCO district is not a "placement." A particular school within a district is not a "placement."5 Rather, a student is placed in a more restrictive placement (e.g., separate special classroom) or less restrictive placement (e.g., general classroom) within the sending district or METCO district. According to federal and state special education law, placement is not part of a student's IEP but is discussed by the IEP Team after the IEP is fully developed.6
A student is admitted to a METCO district when they accept an offer of admission; a student is enrolled in a METCO district as of the first day they are present for classes. The advance planning period in this advisory begins after a parent (or student who is age 18 or older and is their own guardian) has accepted a METCO district's offer of admission for a student and runs until the first day the student begins attending and is enrolled. In most cases, students are enrolled at the beginning of the school year in the fall.
C. Advance Planning
After a student with an IEP is accepted into a METCO district, both the sending district and the METCO district should begin planning before the student begins attending and becomes the responsibility of the METCO district. The Department urges the adoption of the voluntary advance planning processes described below. Neither of these two processes affects the student's admission to or enrollment in the METCO district.
METCO District Requests Student Records from the Sending District
As soon as the student accepts an offer of admission from the METCO district, the METCO district should promptly request the student's educational records from the sending district. Under the circumstances, the Department's student record regulations permit access to the student record by a METCO district without the consent of the parent, but to accomplish the goals and purpose of this guidance, whenever possible, the METCO District should supplement its request for student records from the Sending District with written authorization from the parent. Visit 603 CMR 23.00 for more information on the rules and responsibilities for transferring and retaining student records.
An IEP Meeting is Convened
In many cases, METCO districts are well equipped to address the needs of students with their existing IEPs if they receive the student's educational records in a timely manner and can thus set necessary systems in motion.
In a smaller number of cases, e.g., where student needs are complex, the Department recommends advance planning by means of an IEP meeting to facilitate the student's transition from one district to another. An IEP meeting, with its discussion of the student's strengths and needs in a prescribed format, ensures procedural protections for parents. IDEA provides that IEP meetings need not be limited to annual reviews but may be convened at other times to address "the child's anticipated needs or other matters."7
Any party—the parent, sending district, or METCO district—may request this meeting. The sending district, which retains financial and programmatic responsibility for the student until they are enrolled in the METCO district, has the authority to convene it and must actively endeavor to engage the parent's participation.8 A representative of the sending district will serve as the IEP team chair. With the agreement of the parent, and in consultation with them, the sending district and METCO district should communicate to determine which METCO district staff should be invited, e.g., special education administrators, team chairs, general or special educators, counselors, and/or related service providers. The Department encourages METCO districts to make every effort to send representatives to this recommended meeting.
This IEP meeting will promote communication among all parties. For example, during the meeting, METCO district representatives may provide an orientation to their district, and parents and the sending district will have the opportunity to share key information about the student with the METCO district representatives. The meeting must never be used to dissuade or discourage parents from sending their student to the METCO district. Rather, METCO district representatives will benefit from an in-depth discussion of the student's strengths and needs, so that they can better prepare for the student's arrival.
During the meeting:
a new IEP may be developed, or
the current IEP may be amended.
A new IEP will describe in detail the accommodations, modifications, goals, and services that the individual student will need during the next IEP period, based on up-to-date, age-appropriate assessments.
If a student's IEP has recently been updated, the IEP team may prefer to amend it rather than write a completely new IEP.
State and federal regulations mandate that the development of the IEP must precede and is quite distinct from any discussion of placement.9 The IEP Team should not discuss placement before a new IEP is developed.10 Because at the time of planning, the student remains the fiscal and programmatic responsibility of the sending district, the IEP will not detail specific classrooms, instructional personnel, or schools. Using information shared at this advance planning IEP meeting, the METCO district will implement comparable services as outlined in the IEP, upon the student's enrollment. See Section E below for additional details.
D. Enrollment of Students with Disabilities in METCO Districts
State and federal special education law require that the student who transitions to a METCO district must receive, without delay, special education services from the METCO district that are comparable to those described in the current IEP developed by the sending district and accepted by the parent (see advance planning discussion above). In addition, these special education services must be delivered in a comparable setting.11 What constitutes a "comparable setting" in the METCO district may depend on the programs and services available in the METCO district and may not necessarily replicate the exact structures or programs outlined in the last accepted IEP.
Services begin as soon as the student is enrolled in the METCO district. IDEA permits the METCO district to develop, adopt, and implement a new IEP after the student is enrolled.12
According to Massachusetts special education regulations, METCO districts are responsible for providing the full continuum of special education placements, with the exception of out-of-district placements. In most cases, only sending districts have the responsibility to provide students with access to out-of-district placements. Section 28.10(6) of Massachusetts special education regulations describes the procedure for considering whether a student with an IEP who is already enrolled in a METCO district requires placement in an out-of-district program.
E. Considerations for Services and Placement
The Department encourages IEP Teams to think creatively and substantively about options for individual students with IEPs who will be enrolled in METCO districts, and not to reflexively reject possibilities which at first may seem out of reach. As Massachusetts special education regulations state, "Once eligibility has been determined, the type of disability of the student shall not be used to provide a basis for labeling or stigmatizing the student. Additionally, the type of disability shall not define the needs of the student and shall in no way limit the services, programs, or inclusion opportunities provided to the student."13
As required by federal law, to the maximum extent appropriate, students with IEPs must be placed in the general education environment of any METCO district and educated with students who do not have disabilities.14 Students with IEPs must have the opportunity to participate in and benefit from educational programming that is equal15 to that afforded to others, and that is as effective as that afforded to others.16 Even if permissibly separate or if different programs or activities are available, students with IEPs cannot be automatically denied the opportunity to participate in services, programs, or activities that are not separate or different.
Placement outside the general educational setting can occur only if it is demonstrated through the IEP development process that the education of the student with an IEP in the general education environment, even with the use of supplementary aids and services, cannot be achieved satisfactorily.17 The IEP process must always include appropriate evaluation and the consideration of the full continuum of supports and services. Only the IEP Team can decide if a student's access to the METCO district's programming, equipment, services, or activities should be limited or modified. For example, a student with an IEP might require a substantially separate placement for mathematics but a fully inclusive one for other courses. Over the course of time, as the student builds skills, the student may no longer need the substantially separate placement and can be re-integrated back into a more inclusive environment.
F. During Advance Planning, the Sending District Remains Responsible for Meeting the Student's Service Needs and Convening IEP Team Meetings
As noted above, the student remains the fiscal and programmatic responsibility of the sending district before the student enrolls in the METCO district, even if the parent and the METCO district elect to initiate the advance planning processes described in this advisory. Until the student is enrolled in the METCO district, the sending district is responsible for implementing the student's IEP and for conducting annual reviews and three-year re-evaluations.18 If the student does not have an IEP, and is referred for special education, the sending district is responsible for conducting an initial evaluation.19 If the sending district has scheduled or is obligated to convene an annual review, an initial evaluation, or a re-evaluation during the period before the student enrolls in the METCO district, the sending district should invite the METCO district to the IEP meeting(s) with the permission of the parent (or student who is 18 or older and is their own guardian) and share the results of any assessments with the METCO district.
The Department encourages advance planning as a means of supporting communication and collaboration between sending districts, METCO districts, and parents to ensure that students with IEPs have access to the individualized, appropriate special education services and supports they need when they are enrolled in a new METCO district.
If you have questions about this advance planning process, please contact Associate Commissioner Sheika Edmond .
1 The word "parent" in this document is used as defined in federal regulations. See 34 CFR §300.30.
2 34 CFR §300.101
3 34 CFR §303.23
4 34 CFR §300.115(b)
5 The Department notes that discussions regarding which district school a student will attend is not a placement decision, though a particular school may have implications for placement if certain programs are offered only at certain district schools.
6 34 CFR § 300.116 and 603 CMR 28.05(6)
7 34 CFR § 300.324(b)(1)
8 See 34 CFR § 300.322, especially "Each public agency must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate.""
As noted in bullet number one, the program school is permitted by state regulations to have access to the student's record without first seeking consent from the parent, as long as the sending district notifies the parent that these records have been shared.
9 34 CFR § 300.116 and 603 CMR 28.05(6)
10 If the needs of the student and the services identified by the IEP Team are complex, Massachusetts special education law permits a separate placement meeting within 10 school days, or at a later time with permission from the parent. See 603 CMR 28.06(2)(e). In this case, where the student is moving from one district to another, the "later time" will be when the student has enrolled in the METCO district.
11 34 CFR §300.323(e) and 603 CMR 28.03(1)(c)(1)
12 34 CFR §300.323(e)
13 603 CMR 28.05(2)(a)(1)(b)
14 34 CFR §300.114(a)(2)
15 The Department notes that "equal" does not mean "the same."
16 34 CFR §104.4(b)(1)(i) and 34 CFR §104.4(b)(1)(ii). See also 34 CFR §104.4(b)(2): "Aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and non-handicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs."
17 34 CFR §300.114(a)(2)
18 603 CMR 28.04(3)
19 603 CMR 28.04(1) and (2)
Last Updated: June 11, 2020