Public school districts have an obligation to provide a free appropriate public education to children with disabilities under state and federal law.1 When children with disabilities are in the care or custody of the Department of Social Services (DSS), school districts have questions about: the role of DSS in changing a child's place of residence; the responsibility of the school district when a child is in an out-of-district special education day school program and DSS moves the child to a special education residential school; and how special education residential school costs are shared by DSS and school districts when a child is moved to a special education residential school for non-educational reasons.
When a child is in the care or custody of DSS and is enrolled in a special education day school, the outcome for the child can be improved by interagency cooperation. This advisory restates longstanding Department of Elementary and Secondary Education special education regulations and practices and is being issued to assist school districts in cooperating with DSS in serving these vulnerable children with disabilities.
The following subjects are addressed by this advisory:
If a child is in DSS care or custody, DSS has authority to determine where the child lives. DSS makes residential placement decisions on the basis of a clinical determination in accordance with DSS standards. DSS does not make special education placement decisions.
The Department of Elementary and Secondary Education's special education regulations regard a special education day school as a type of program and do not regard a special education day school run by an educational collaborative or other public entity as a different program type than one operated by a private entity.
If a child has been placed in a special education day school by a school district in accordance with an Individual Educational Program (IEP) and special education placement determination, and DSS changes the child's residence, the school district is required to continue providing a comparable special education day school type of program until the IEP Team decides to change the child's special education program and placement.
If DSS makes a clinical determination in accordance with DSS standards that the child should be placed in a special education residential school, DSS will share the special education residential school costs with the school district.
Each of these subjects is discussed below.
A child may enter DSS care or custody in several different ways.2 Once the child is in DSS care or custody, DSS has authority to determine where the child lives. DSS places children in a residential school following a clinical determination, based on diagnostic and other assessment information, that the child requires such a setting. DSS is making a residential placement but is not making a special education residential school placement as this term is used in the special education law and on the Department of Elementary and Secondary Education special education placement form PL1. DSS does not make special education placement decisions.
When DSS places a child in a residential school, the DSS worker will notify the responsible school district(s) of the changed residence. This notification will occur in advance of the transfer whenever possible.3
The issue of which school district has programmatic and/or financial responsibility is made on a case-by-case basis according to the criteria identified in 603 CMR 28.03(4). If the child is in a private special education day school, in some cases the "move in law," M.G.L.c 71B, §5, may have a bearing on this determination.4
The Department of Elementary and Secondary Education's special education regulations regard a special education day school as a type of program and do not regard a special education day school run by an educational collaborative or other public entity as different from one operated by a private entity.
The special education program type reflects whether programs for disabled students take place in the same location as programs for non-disabled students. A program is defined as a special education day school type of program if the program is located in a facility that primarily serves students with disabilities.5 The special education regulations do not regard a special education day school run by an educational collaborative or other public entity as a different type of program than one operated by a private entity.
Private and public special education day schools are treated as the same type of program under the Department of Elementary and Secondary Education regulations. Therefore, DSS's placement of a child in a special education residential school for non-educational reasons may move a child in a public or private special education day school program to a residential school location but such move by DSS does not, by itself, change the type of special education placement.
The child's IEP Team makes the determination of the appropriate special education program (IEP) and the type of special education placement necessary to implement that IEP. If the child's IEP Team has determined that the child requires a special education day school type of program and placement, the school district is required to continue providing a special education day school type of program until the Team decides to change the child's special educational program and placement. If a child moves to a new place of residence, the child's IEP remains in effect until a new IEP is developed.6 Therefore, when a child is moved to a special education residential school by DSS, the school district, DSS and the special education residential school should all work together to ensure that the child receives an appropriate special educational program, according to the agreed upon IEP and special education day school placement determination.
If the special education residential school agrees to provide the services of the agreed upon IEP, the school district will enter into a written contract with the special education residential school to provide the special education day program in accordance with the IEP.7 The school district should note for the child's file that the location of the special education day program has been changed as a result of a change in the child's residence and that the school district has determined that the contracted facility can provide the program and services as specified in the child's IEP. No further IEP procedure is required.
Alternatively, the school district may convene a Team to consider whether the child's IEP continues to be appropriate, or whether the special education program offered by the residential school is appropriate for the child and is able to deliver the services required by the child's IEP. In addition to the required members of the IEP Team, a representative of the residential school where DSS has placed the child must be invited to participate as a member of the Team. A DSS representative should also be invited to the meeting.
If the Team decides that the residential school is not able to deliver the services required by the child's IEP, the school district must take appropriate action to assure that it provides or arranges the provision of the program and services that the child requires. School district actions may include but are not limited to, providing an extended school day or year, providing supplemental or related services or locating an alternative program that will fulfill the child's IEP.
The public school district will continue to be responsible for convening the Team annually to review the child's special education program and needs, and to develop an IEP and identify the appropriate special education placement to provide the IEP services.
If DSS makes a clinical determination in accordance with DSS standards that the child should be placed in a residential school, DSS will share the residential school costs with the school district.
If DSS has made a clinical determination in accordance with DSS standards that the child should be placed in a residential school, DSS will share the residential school costs. School districts will be responsible for either 50% of the residential school tuition, or, in the alternative, the day portion of the special education residential school costs as determined by the Operational Services Division (OSD) of the Executive Office of Administration and Finance.8
If the special education residential school has a residential rate but OSD has not established a separate day rate, the Department of Elementary and Secondary Education recommends that the school district share the cost of the residential rate equally with DSS. It can be difficult to separate out which aspects of a residential school's program and services meet the child's special education needs and which meet his/her non-educational needs. For this reason, it makes sense to share the cost equally. If a school district shares the cost of the residential program equally with DSS, the district does not need to notify the Department of Elementary and Secondary Education or seek approval of this arrangement. In many circumstances this will be the easiest and preferred arrangement. A school district may not negotiate any other cost-share arrangements with DSS. The equal cost-share arrangement has been the usual and customary practice for many years and has been sanctioned by interagency agreements between the Department of Elementary and Secondary Education and the Department of Social Services since 1983.
OSD establishes tuition rates under two procedures. OSD will either establish a tuition rate following the Department of Elementary and Secondary Education approval of a private day or residential special education school program under 603 CMR 28.09 or upon a special request pursuant to 603 CMR 28.06 (3)(e)(4). These two procedures are described in greater detail below.
If the Department of Elementary and Secondary Education has approved the residential school with a day school component under 603 CMR 28.09, then the program will have both a day school tuition rate as well as a residential tuition rate set by the OSD.
If the Department of Elementary and Secondary Education has approved the special education residential school solely as a residential school program, then OSD will have set only a residential tuition rate. In such circumstances, the school district may seek approval from the Department of Elementary and Secondary Education to request that OSD establish a separate individual tuition rate for the child's special education day school program under 603 CMR 28.06(3)(e). The school district's application to the Department of Elementary and Secondary Education for approval must preserve the full level of services required by the child's IEP, including extended day or year services, as appropriate. Upon Department of Elementary and Secondary Education approval, OSD will establish an individual day school tuition rate covering the day services provided to implement the child's special education placement. Please note that a day tuition rate established for an individual child will not establish an approved special education day school within the residential school. Individual pricing only establishes a rate for the individual child for whom the request was made. Any subsequent placements under similar circumstances for any child in that special education residential school will require full documentation in order to establish an individual day tuition rate for each placement.
Once OSD has established both day and residential tuition rates, the school district(s) with financial responsibility will pay the special education day tuition rate. The DSS will pay the established residential tuition rate less the day tuition rate.
In closing, we hope this information is helpful to public and private special education school administrators in providing special education day program services to children with disabilities in the care or custody of DSS.
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).
1 M.G.L.c.71B and 603 CMR 28.00 and 20 USC 1400 et. seq., 34 CFR 300 et.seq.
2 A child is the "care" of DSS if the child is placed outside of the home under a Voluntary Placement Agreement, or through a Petition for Voluntary Care and Responsibility. M.G.L. c. 119, §23, paragraph A. Through these processes, the parent or guardian retains legal custody of the child but agrees to a temporary delegation of rights to DSS. A child is in DSS "custody" when a court issues an order transferring legal custody from a parent or guardian to the agency. A custody order may be issued in a care and protection petition, a private dispute between parties in which the court gives custody to DSS, or in a CHINS proceeding. See generally, M.G.L. c. 119, §§23-26, §§39E-39G, c. 208, c. 209.
3 DSS Notice to LEA revised April 2003.
4 The application of the move-in law is discussed in an August 10, 1998 memorandum.
5 603 CMR 28.02(1), (2) and 28.09(2)(b)(2).
6 603 CMR 28.03(1)(c).
7 See 603 CMR 28.06 (3)(f) General Requirements for out-of-district placements, Written Contracts. See also, Administrative Advisory SPED 2002-5: Special Education Contracts Between School Districts and Out-of-District Programs.
8 OSD establishes rates pursuant to 808 CMR 1.00 which applies to Contractors and Subcontractors providing Human and Social Services to any Department and to all Contractors operating Programs approved by the Department of Elementary and Secondary Education (DESE) under M.G.L. c. 71B … and to Local Education Authorities (LEAs). See OSD's Special Education Pricing webpage.
Last Updated: April 14, 2004
Massachusetts Department of Elementary and Secondary Education 135 Santilli Highway, Everett, MA 02149
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