Administrative Advisory SPED 2002-5

Special Education Contracts Between School Districts and Out-of District Programs [603 CMR 28.06(3)(f)]

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The Massachusetts special education regulations require school districts to enter into a written contract (sometimes known as a "placement agreement") with out-of-district public and private agencies for every eligible student placed by the school district. 603 C.M.R. § 28.06(3)(f). Out-of-district programs are defined under 603 C.M.R. § 28.02(14). This advisory explains the contract requirements and provides guidance on additional contract elements that the Department of Elementary and Secondary Education recommends for consideration by the contracting parties.

The special education regulations specify the minimum terms that such a contract must contain. Among other terms, the contract must provide for:

• the out-of-district program's agreement to provide the services on the Individualized Education Program ("IEP") for the student in compliance with the law and the elements of the IEP;
• the out-of-district program's completion and issuance of written student progress reports;
• the school district's access to any or all records necessary to ensure appropriate monitoring and evaluation of the education of the student in the out-of-district program;
• the out-of-district program's agreement to abide by the Massachusetts Student Record Regulations;
• the out-of-district program's agreement to provide access to the school district and/or the Department of Elementary and Secondary Education to conduct announced and unannounced site visits and to review any or all documents relating to the provision of special education services at public expense;
• the out-of-district program's agreement to ensure provision of all the substantive and procedural rights held by eligible students;
• the out-of-district program's assurance that it is and will be in compliance with all other applicable requirements of Massachusetts special education regulations and applicable policy statements and directives issued by the Department; and
• the out-of-district program's assurance that it does not discriminate on the basis of race, color, religion, sexual orientation, and national origin and does not discriminate against persons with disabilities.

The Department's role with respect to the precise terms of such contracts is limited to determining compliance by school districts with 603 C.M.R. § 28.06(3)(f) and to approving public and private special education programs under 603 C.M.R. § 28.09. The Department does not approve contract terms or participate in the negotiation of such terms.

Compliance with 603 C.M.R. § 28.09

The Department anticipates that contract provisions will differ depending on whether a student is placed in a Department-approved or in an unapproved out-of-district program. If a school district is placing a student in an unapproved program, the district must ensure that the program meets requirements relating to health and safety, appropriately certified educational staff, educational facilities and materials, and all requirements consistent with those found under 603 C.M.R. § 28.09 and §18.00. The specifics of these requirements are generally described under 603 C.M.R. § 28.09 and §18.00 and are detailed in the Department's Application Procedures for Department of Elementary and Secondary Education Approval of a Massachusetts Public or Private Day or Residential Special Education School Program. This program approval document is available from the Department's Program Quality Assurance Services unit (PQA) and also is available on the Department's Web site at Special Approvals and Notice Requirements webpage.

If a student is placed in a program approved by the Department of Elementary and Secondary Education, however, the school district need not make these inquiries with the program. If the program has received approval, the Department will monitor these issues generally on a program-wide basis and the school district must ensure that these matters are implemented with respect to the individual placement(s) made by that district. This is consistent with 603 C.M.R. § 28.06(3)(a) ("the Department shall determine that programs approved under § 28.09 of these regulations have appropriate policies, procedures, and appropriately credentialed staff"). Program approval sought and received by out-of-state programs either from the Department of Elementary and Secondary Education in Massachusetts or in other states will also be acceptable to meet these additional requirements.

School District Monitoring of Placements and Records

In contrast to the Department's role with respect to approved programs and the requirements in section 28.09, school districts remain responsible for monitoring "the programs of individual students enrolled in the approved programs." 603 C.M.R. § 28.06(3)(a) and (b). The Department anticipates that such monitoring will include careful review of student progress reports, announced and unannounced site visits, a review of documentation sufficient to verify and evaluate the full implementation of education services at public expense, and all other activities necessary to ensure that the student's education and program comply with federal and state law. While the parties may negotiate some reasonable terms regarding the implementation of these requirements, the contract language to which the parties agree must not impede the school district's ability to monitor the placement of individual students and may not purport to limit the Department's authority, function, and role.

Provision of Services

With respect to the services specified on a student's IEP, 603 C.M.R. § 28.06(3)(f)(1) states that the "out-of-district placement shall comply with all elements of the IEP for the student." While providing certain services specified on an IEP may require negotiation, the Department does not expect out-of-district programs to agree to provide all services specified on IEPs yet to be developed. The provision of services specified on future IEPs should be handled through a simple amendment to the original contract as opposed to an open-ended provision that may require a program potentially to provide services inconsistent with its approval status with the Department of Elementary and Secondary Education and the pricing of the program by the Commonwealth.

Pricing of and Payment for Private Out-of-District Programs

As specified in 603 C.M.R. §§ 28.06(3)(e)(4) and 28.09(3)(a), the Operational Services Division ("OSD") of the Executive Office of Administration and Finance establishes the rates for all placements in approved and unapproved private special education school programs made by school districts at public expense. These requirements are described under 808 C.M.R. 1.00 (setting of prices for placements in private programs for special education). School districts are not authorized to establish, agree upon, or pay tuition for an approved or unapproved private placement of any type without a rate having been set by OSD. Typically, approved program rates will be available from OSD well in advance of the placement of the student. However, such rates may change and the contract may not be used to limit the ability of private programs to seek rate adjustments consistent with the requirements of law and regulation. The parties may negotiate other terms related to payment provided that such terms comply with all federal and state laws including the timely placement of students served in out-of-district programs.

Optional Elements that May Be Included in the Contract

Public and private out-of-district programs in most instances serve students with the most complex disabilities. The Department's Program Quality Assurance Services unit receives many inquiries regarding the complex circumstances of individual students, particularly as they intersect with regulatory requirements for which the Department has oversight responsibilities. The Department has observed that the lack of clear, written communication of expectations between the parties involved in out-of-district placements may result in unintended noncompliance with state and federal special education requirements.

Communication and planning are essential to the successful partnership between a school district and a public or private out-of-district placement. Drafting and negotiating the school district/out-of-district contract affords the parties an opportunity to discuss and consider additional items, beyond those required by the regulations, that define respective responsibilities and expectations. Parties benefit by discussing issues sooner rather than later, even if they decide not to incorporate these or other optional provisions in a contract. The Department recommends, therefore, that school districts and out-of-district special education programs use the contracting process as a vehicle to clarify and address each party's expectations. Students' rights to a free, appropriate, public education (FAPE) and their needs for a predictable environment are best served when potential areas of confusion or conflict are identified and addressed in advance.

For these reasons, the Department recommends, but does not require, the consideration of the following additional elements for inclusion where deemed appropriate by the parties in a contract required under 603 C.M.R. 28.06(3)(f):

• responsibility to conduct unscheduled Team meetings, re-evaluations and 3-year re-evaluations (school district has legal responsibility, but certain aspects described below could be delegated to the out-of-district public or private program);

• responsibility for developing IEPs in a timely fashion (school district has legal responsibility for notice to parents and convening the Team meetings);

• issuing of proposed IEPs with proper notice of procedural safeguards and notice of parents' rights (school district has legal responsibility and out-of-district public or private school has obligation to keep itself current regarding parents' rights and offer parents' rights education via the public school special education parent advisory council (PAC) or private school parent group);

• chairing IEP Team meetings (school district has legal responsibility, but meeting management responsibilities could be delegated to out-of-district public or private school provided that an administrative representative of the district with power to commit the district's resources is in attendance at every Team meeting, and where Team members are unable to agree on the IEP, the school district's administrative representative states the proposed elements of the IEP);

• special considerations for parent communications in instances where parents are limited English-proficient or require accommodations to ensure their understanding of all required communications to and from the program;

• information regarding methods of reaching responsible school district officials when the public school district is not in session or when the usual contact person is unavailable;

• information-sharing concerns (e.g., out-of-district public or private school notifications to school district should include not only student-specific incidents but also changes in major policies/procedures/practices, and major changes in program and staff. Note that out-of-district public or private approved special education schools are required to notify the Department of Elementary and Secondary Education of planned and unplanned major program changes on PQA Forms 1 and 3; and it is recommended that responsible school districts be similarly notified.);

• responsibilities for health-related services, or other services not a part of the student's IEP;

• responsibilities for communications regarding student discipline issues (this includes but is not limited to matters related to a program's overall code of conduct and behavior management systems, restraint policies and procedures consistent with applicable state regulations, suspension and termination policies and procedures);

• responsibilities for and appropriate follow-up to student discipline problems, (i.e., conducting functional behavioral assessments and manifestation determinations, proposing or changing behavioral intervention plans and "interim alternative educational settings," incident reporting to the local school district and Department of Elementary and Secondary Education including reports of physical restraints. (school district has legal responsibility to convene the IEP team and take the lead, but out-of-district public or private school will likely first notice signs of problems; certain aspects of these federally required processes could be delegated to out-of-district public or private school);

• specific procedures for addressing situations when out-of-district public or private school is considering discharge or termination of the student for any reason;

• mechanisms for transition and change-in-placement planning, including change in decision-making authority at age 18, decision-making in regard to high school graduation and issuance of high school diploma or certificates of course completion, achievement, attendance, or participation. (See Department of Elementary and Secondary Education Special Education Advisory 2002-4 for further guidance on these matters.);

• the provision and funding of transportation for the student to and from home and to and from school-sponsored activities; and

• responsibility for the payment of incidental expenses unrelated to the school district's obligation to pay the tuition established by OSD.

Elements that Should Not Be Included in the Contract

The written contract between a school district and an out-of-district special education program pursuant to 603 CMR 28.06(3)(f) is intended to address the placement of students consistent with federal and state special education requirements. The contract should not include elements or parties unrelated to the specific intent of this regulation. The required contract may not be used as a mediation agreement or a settlement agreement. School districts should not include the following items in contracts under 603 CMR 28.06(3)(f):

• matters related to the relationship or obligations of other public or private agencies;
• matters related to the payment or receipt of a rate different than that approved by OSD or agreement to maintain an OSD rate beyond effectiveness;
• disclaimer of responsibilities that by law or regulation must remain with the school district;
• matters that appear to abridge the rights of a parent or student;
• a commitment for placement of an eligible student beyond a single calendar year;
• any requirement for specific educational or related service methodologies;
• any cost share arrangement with the parent or other entity; and
• any other matters that are inconsistent with state or federal law.

In closing, we hope this information is helpful to school districts and out-of-district public and private special education programs in carrying out their obligations relating to the provision of special education and related services to eligible students with disabilities. If you have any questions or require additional information, please contact Program Quality Assurance Services at the Department of Elementary and Secondary Education (781-338-3700).

Thank you for your attention to this memorandum and for assuring that students with disabilities receive appropriate services.

Last Updated: June 21, 2002