Administrative Assistance Advisory SPED 2018-3

Guidance on Amendments to Special Education Regulations, 603 CMR 28.10, to Align with ESSA Foster Care Provisions

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Purpose

On March 27, 2018, the Massachusetts Board of Elementary and Secondary Education (the Board) adopted amendments to the Massachusetts Special Education Regulations at 603 CMR 28.10, pertaining to the assignment of school district responsibility for the special education services of students in foster care. The Department of Elementary and Secondary Education ("the Department" or "DESE") must implement the amendments to 603 CMR 28.10, which are often referred to as the "LEA Assignment Regulations."

The amendments to Section 28.10 will go into effect on July 1, 2018 and will apply prospectively, not retroactively. This means the current regulations will apply to assignments made during the summer of 2018 that affect extended school year services as part of a student's 2017-18 IEP. In addition, the Department will not change determinations of district responsibility made prior to July 1, or apply the amended regulations if a student's foster care setting changes before July 1, 2018. All decisions made under the amended regulations will be effective for the 2018-2019 school year. These implementation dates will provide a clear transition from the current regulations to the amended regulations on and after July 1, 2018.

This advisory and the accompanying appendices are intended to assist districts to apply the amended regulations, and to understand how the regulations afford greater educational stability to students in foster care, consistent with the federal Every Student Succeeds Act (ESSA).

Overview of Proposed Amendments

Section 28.10 authorizes the Department to assign, and school districts or agencies to request the Department's assistance in assigning a city, town, or school district to be responsible for the special education services of students in complex living situations, including foster care. The Department makes approximately 400 school district assignments annually under Section 28.10, which was first adopted by the Board in the 1970s.

The federal Every Student Succeeds Act went into effect in December of 2016. It introduced additional considerations about where a student in foster care has the right to attend school.

Among other changes, ESSA guarantees to students in foster care the right, based on the student's best interest, to continue to attend the school the student was attending at the time the student entered foster care (called the "school of origin") or to enroll in the district in which the foster care setting is located (called the "local district"). Under ESSA therefore, students may reside in one district and attend school in another.

Consistent with ESSA, under the amended regulations, school district responsibility depends upon whether a student continues to attend the school of origin or leaves the school of origin and attends a new school. If the student continues to attend the school of origin, programmatic and financial responsibility stay with the school district(s) that was/were responsible prior to the student's entry into foster care or change in foster care setting, and this district stays responsible for as long as the student continues to attend the same school. If the student is enrolled by the Department of Children and Families (DCF) in the district where the foster care setting is located, or if a student in foster care attends a new school in the same district, then the district in which DCF enrolls the student is programmatically responsible, and the district where the parent or legal guardian resides is financially responsible.

The type of foster care setting is not relevant to a student's rights under ESSA, as ESSA broadly defines foster care to include a foster home, group home, state-ordered residential setting, temporary care unit, or similar setting in which DCF has placement and care responsibility for the student.

DESE and DCF have jointly issued guidance on these and other rights extended under ESSA to students in foster care. The amendments to Section 28.10 address only school district responsibility for the special education services of students in foster care. School staff and others who have broader questions and concerns about ESSA's provisions for students in foster care should consult the above-referenced guidance and/or their district's foster care point of contact.

Given ESSA's requirements regarding school attendance, it was necessary to amend Section 28.10 to the extent that it did not provide for situations, now permitted under ESSA, in which a student in foster care resides in one district but attends school in another. In addition to resolving the conflict with ESSA, the amended regulations generally clarify, simplify, and provide consistency for the process of LEA assignments.

We are confident that under the amended regulations students in foster care will receive a more continuous and stable education experience, featuring fewer changes in enrollment. For districts, the amended assignment rules should be more predictable and easier to apply for purposes of planning and budgeting.

As appendices to this advisory, please find:

• Appendix A: Question and Answer Guide that contains additional information, and will assist school district personnel to apply the amended regulations to specific factual situations;

• Appendix B: LEA Assignment Quick Reference Guide, which provides a diagram and step-by-step process for determining district responsibility based on specific circumstances regarding the residence of the parent(s) and the student; and, — updated 03/15/2019

• Appendix C: Form 28M2, revised: "Request for Clarification of Assignment of School District Responsibility under 603 CMR 28.10."

Should you have questions about the application of the amended regulations or this guidance document, please contact the Office of Special Education Planning and Policy at: leaassignment@doe.mass.edu.

Thank you for your continued efforts to help our students in foster care experience educational stability that will enhance their ability to achieve their educational goals.

Last Updated: May 15, 2018