To:Administrators of Special Education and Other Interested PartiesFrom:Russell Johnston, Senior Associate Commissioner, State Director of Special Education Jamie Camacho, Director of Special Education Planning and PolicyDate:May 11, 2021
The Special Education Regulations, at 603 CMR 28.10(8), authorize the Department of Elementary and Secondary Education (Department) to assign a city, town or school district to be responsible for providing and paying for the special education of students in certain situations in which the student's residency is unclear. The purpose of this memo is to explain the process for making and enforcing these school district assignments.
The Department assigns special education responsibility to a school district for students in several situations, including students who are in the care or custody of a state agency, students who have no parent or legal guardian residing in Massachusetts, and students whose parent's or legal guardian's residence is in dispute. Often these cases are factually complex, involving series of consecutive moves within a school year and associated challenges accessing their special education program. To ensure that students receive the free appropriate public education to which they are entitled, without delay, the regulations require that, "[u]pon notification of responsibility for provision of special education to a student…the school district(s) shall immediately assume responsibility for the student in accordance with the requirements of 603 CMR 28.00." (603 CMR 28.10(8)(d)).
It is the responsibility of the parties requesting an LEA Assignment to provide DESE with all facts related to it. As a single state-wide repository for the resolution of all such situations, DESE's role in the LEA assignment process is to apply the regulations consistently and fairly. To ensure that the assignment process is fair, based on accurate information, and so that assignments do not come as a surprise, DESE often issues written "Alerts" to all parties potentially impacted by an assignment before the assignment is issued. "Alerts" ensure all parties, if they so choose, to have an opportunity to submit facts related to the assignment, and avoid cycles in which, repeatedly, assignments are met with new information. After DESE has issued an assignment, to ensure fairness and accuracy, the LEA Assignment regulations give school districts the right to seek a review of an assignment by presenting new information to the Department, and also the right to appeal the assignment to the Bureau of Special Education Appeals.
School districts demonstrate exemplary professionalism and concern for students by acting promptly to assume responsibility for a student's special education in these cases, and we appreciate your cooperation. Occasionally, however, a district that has been assigned programmatic responsibility is not responsive to requests for evaluation or services, or a district that is assigned financial responsibility does not pay for the required IEP services or placement. A district that fails to assume its responsibility risks denying a free appropriate public education to an eligible student, because its inaction prevents the student from participating in his or her full IEP program or from receiving other services to which he or she is entitled.
While a school district may seek review of an assignment at any time if the district has information that was not available to the Department at the time of the assignment (603 CMR 28.10(8)(f))i, the district cannot delay the actual assumption of responsibility because it intends to seek review, has requested review, or has filed an appeal under 603 CMR 28.10(9).ii If the district provides all information with its request for a review of an assignment, then response by the Department can be expected promptly. If further investigation or confirmation of documentation by the Department is necessary, a review can take a number of weeks. A school district may not delay assumption of responsibility for any amount of time, regardless of its belief that an assignment should be revised. Further, since the regulations provide for reimbursement to any district that has assumed financial responsibility and is subsequently found by the Department not to have been responsible during the period in question, there is no reason for a school district to delay assuming responsibility. See 603 CMR 28.10(8)(e).
Under federal and state law, the Department must ensure that eligible students receive the special education services to which they are entitled. Therefore, we are instituting procedures to ensure that school districts assume programmatic and/or fiscal responsibility, without delay, as required by M.G.L. c.71B and 20 U.S.C. § 1416(a)(C)(2). If the Department has notified a school district of its responsibility for a student under 603 CMR 28.10(8), and the Department receives a complaint that the district is not taking such responsibility, the following actions will occur:
The Department will send the school district a notice that a complaint has been received regarding assumption of assigned financial and/or programmatic responsibility, stating that the district is required to assume immediately its assigned responsibility. The notice will be sent from the Special Education Planning and Policy Development Office (SEPP) (with a copy to the Problem Resolution System (PRS)) or from PRS. The notice will state that even if the district disputes the assignment, it must assume responsibility until the dispute is resolved through procedures described in the regulations. The district will be informed that if it does not assume its assigned responsibility, the Department is authorized to withhold future disbursements of special education funds and will do so, if necessary. See 20 U.S.C. § 1413(d)(1).
If the district immediately assumes its responsibility and documents this to the Department, then the Department will take no further action.
If the district does not assume its assigned responsibility, PRS will open a formal complaint on the issue, and will investigate whether the refusal is interfering with the student's right to FAPE. The right to FAPE includes timely and appropriate evaluation, services, Team meetings, notices, and other special education services, and can also include the refusal to pay for services in a timely manner if such refusal may cause service delivery to be jeopardized.
At the same time that PRS initiates the complaint investigation, PRS will issue a "Notice of Intent to Withhold Funds" identifying the funds to be withheld from the district.iii As provided under federal law, the district may request a hearing with the Department regarding its intent to withhold federal special education funds. See 20 U.S.C. § 1412(a)(13); 20 U.S.C. § 1413(d)(1). If the district requests such a hearing, a public notice will be required before the hearing is conducted. See 20 U.S.C. § 1413(d)(2).
We hope this memo clarifies the process for making and enforcing school district assignments under the special education regulations and that it will assist districts in understanding and fully implementing the requirements of the law. We encourage school districts to use the review mechanisms provided by the regulations (603 CMR 28.10(8)(f) and 28.10(9)) to seek reconsideration of assignments in appropriate cases, provided that the student's program, services, or placement are not jeopardized by inaction on the part of any school district.
Thank you for your attention to this memo and for all the work you do on behalf of students. If you have any questions or require additional information, please contact Problem Resolution System at the Department of Elementary and Secondary Education (firstname.lastname@example.org or 781-338-3700).