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Archived Information

Special Education

Out-of-District Placements in Unapproved Programs

To:Special Education Administrators
From:Marcia M. Mittnacht, State Director of Special Education
Date:August 6, 2001
Re:Out-of-District Placements in Unapproved Programs
--NOTICE OF CHANGE IN PRACTICE--
Effective September 2001 (Corrected Memorandum)

This memorandum alerts school districts and private schools serving students at public expense to changes in the process formerly known as "sole source of care." The changes make the Department of Elementary and Secondary Education's process consistent with current regulations, reduce paperwork for school districts, and should expedite the placement process for those students who cannot be served in their public school districts or an approved program. These changes apply to all out-of-district placements in unapproved programs, whether day or residential.

I remind districts that responsibility for monitoring individual out-of-district placements rests primarily in the hands of the local school district, whether the placement is made to an approved or unapproved setting. I also want to remind school districts that the state special education regulations clearly state that placement for special education purposes in an "unapproved school" should only occur as a last resort and never should occur without notification to the Department of Elementary and Secondary Education. Massachusetts is fortunate to have more approved private schools, both day and residential, to serve special education students than almost any other state in the nation. Additionally, we have a wide selection of approved public day programs for special education students. The use of unapproved programs by school districts should be minimal and reserved only for the small number of students who cannot be served in an approved program.

School districts must conduct a thorough search for approved programs for students needing out of district placements prior to any consideration of using unapproved programs. Such a search must be conducted initially and updated at least annually when the student's IEP is reviewed. If a school district is unable to serve an individual student's needs in the district and is also unable to locate an approved program for this student, the school district may place the student out-of-district in an unapproved program if it complies with the regulations governing such a placement. These regulations are found at 603 C.M.R. § 28.06(3). Please note that the changes in the Department's process are closely aligned with these regulations and you should review the regulatory requirements. The Department's process, previously referred to as "sole source of care approval," will now be called "authorization for pricing."

As of September 1, 2001, school districts no longer must file an application for a sole source of care waiver with the Department. School districts, however, must notify the Department of each proposed placement of a student in an unapproved private day or residential program prior to placement. This notification must comply with 603 C.M.R. § 28.06(3)(e)(4). Notification submitted by a school district must include the following five items:

  1. Notification of intent to place a student in an unapproved program, using form 28M3;
  2. If applicable, Application for Funding of Special Education Placement and any required documentation, using form 28M4;
  3. Pricing forms consistent with the pricing requirements of the Operational Services Division ("OSD") of Administration and Finance;
  4. A copy of the contract or information on the terms of the contract consistent with 603 CMR § 28.06(3)(f); and
  5. Documentation of the district's plan for monitoring the student's program in the unapproved placement.

Effective September 1, 2001, school districts should send notification to the Department at:

Attention:

Coordinator, Placement/Pricing Authorization
Program Quality Assurance
Department of Elementary and Secondary Education
75 Pleasant Street
Malden, MA 02158

The Department may request additional documentation in specific cases. The Department may deny authorization for pricing if the proposed placement is not made in compliance with the state regulations regarding special education. For instance, placement in unapproved settings prior to notifying the Department and the setting of a rate for the placement violates the special education regulations. Such a placement also may result in denial of state funding for the placement and would be cited as an area of non-compliance in a Coordinated Program Review.

Once notification of a proposed placement from a school district is received, the Department will review the notification for compliance with 603 C.M.R. § 28.06(3)(e). If complete, the Department then will forward the pricing forms to OSD. OSD will review the price authorization request and take action appropriate under its regulations (808 C.M.R. § 1.00). Students may not be placed in unapproved programs nor may public funds be used for payment of tuition or other expenses prior to OSD's authorization of a price for a particular student in a particular unapproved program."

In addition to notifying the Department of proposed placements in unapproved programs, the district must maintain in the student's record the documentation described in detail in 603 C.M.R. § 28.06(3)(e). This documentation includes the following.

  • Documentation demonstrating a comprehensive search for placement in an approved setting;
  • Documentation of an evaluation of the appropriateness of the unapproved program;
  • For schools located in Massachusetts, documentation of the unapproved school's approval from the local school committee to operate under G.L. c. 76, § 1; and
  • A copy of the information sent to the Department, including a copy of the contract between the school district and the out-of-district placement.

The Department has the right to request and to review such documentation at any time. The Department may conduct random, unannounced monitoring visits for the purposes of reviewing documentation maintained locally in the student's record for any student attending an unapproved program. Additionally, during scheduled Coordinated Program Reviews the Department's Program Quality Assurance unit will review the required documentation maintained at the school district level.

Reimbursement

We note that state reimbursement for special education services is scheduled to change in school year 2002-2003, with the possibility of preliminary activity during school year 2001-2002. Although details of such reimbursement program are not yet in place, a preference for funding of approved programs will be addressed in any implementing regulations. Funding of unapproved programs may be affected and the procedures outlined in this memorandum will change as necessary. We strongly recommend if your district makes placements to a particular unapproved school on a regular basis that you directly recommend to the school that it apply for approval in Massachusetts. Applications for approval of special education schools may be obtained from and sent to:

Attention:

Coordinator, Placement Approvals
Program Quality Assurance
Department of Elementary and Secondary Education
75 Pleasant Street
Malden, MA 02158



Last Updated: August 6, 2001
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