William C Peever, J.D.
Shared Responsibility for Special Education Services in Institutional Settings
To:Superintendents, Administrators of Special Education, and Other Interested PartiesFrom:Russell Johnston, Deputy Commissioner of Elementary and Secondary EducationDate:November 19, 2021
Each year, Massachusetts youth enter1 facilities operated by the Departments of Youth Services (DYS), Mental Health (DMH), Public Health (DPH) and the County Houses of Correction (CHC) (collectively "host agency facilities"). These youth include students who are eligible for special education, and in some facilities, students with disabilities may make up a greater proportion of the student population as compared with statewide data. The Department of Elementary and Secondary Education (DESE),2 local school districts, and host agency facilities each play a role in providing special education and related services to students in host agency facilities. The purpose of this Technical Assistance Advisory is to explain those roles in greater detail, and to explain how these entities can provide special education and related services to students who require them.
Federal and state laws and regulations3 outline the responsibilities of DESE, districts, and host agencies to provide special education to eligible students in host agency facilities. In particular, Massachusetts regulation 603 CMR 28.06(9) explains that, when an eligible student enters a host agency facility:
Host agencies provide residential, medical, and clinical services to students. Although these services may overlap with services called for in a student's Individualized Education Program (IEP), the responsibility for providing IEP services to students in institutional settings remains with the school district, with support from DESE's Special Education in Institutional Settings (SEIS). The IEP Team may wish to consider the services provided by the host agency to determine how best to meet the student's needs during their stay in the facility, and host agency staff may participate in IEP Team meetings to explain the services and programs provided in the facility.
DESE, through SEIS provides certain special education services to students. DESE retains the discretion to determine, based upon resources, the type and amount of special education and related services that it provides.4 Some examples of services SEIS may provide include: small group and direct instruction in a variety of subjects, as well as modifications and accommodations to help students access grade-level curricula aligned with their IEP and MA Curriculum Frameworks. Some examples of services that SEIS does not provide include: counseling, music therapy, vision therapy, one-to-one aide services, speech and language therapy, occupational therapy, and physical therapy.
School districts maintain fiscal and programmatic responsibilities for students in host agency facilities, just as they would for students who attend school in their school buildings.5 If an IEP calls for a type or amount of services that DESE does not provide, the school district remains responsible for implementing the student's IEP by arranging and paying for the provision of such services.6 School districts also remain responsible for conducting referrals, evaluations, and Team meetings, just as they would with a student physically present at their school.7
Identifying Special Education Students Entering Host Agency Facilities
Youth that enter a host agency facility go through intake processes to identify their educational needs. In DYS facilities, SEIS performs a "data match" that uses information available through DESE's Student Information Management System (SIMS) to determine whether a minor student was receiving special education services in their home district prior to entering the facility. In DMH and DPH facilities, the host agency asks parents/guardians to release a student's educational records, including IEPs, to SEIS. For students who have reached the age of majority (18) and make their own educational decisions, privacy considerations mean that the host agency facility asks them to self-identify as eligible for special education. If a student is identified as eligible for special education services, SEIS will assign a school district liaison (SDL) to serve as a point of contact with the host agency, school district, and education service providers contracted by the school district. After intake, the SDL or other SEIS staff will contact the school district to discuss their student's admittance to the host agency facility.
Implementing Special Education Services
SEIS requests the student's IEP from their home district, if it is not already available. When they receive it, an SEIS teacher and the student's SDL review the materials and immediately begin implementation, as SEIS' resources permit, within the host agency facility. The school district is responsible for those IEP services not provided by SEIS. Given the unique challenges that may be posed by the new instructional environment, DESE strongly recommends that the school district reconvene the student's IEP Team to discuss IEP implementation at the host agency facility. See "Reconvening the IEP Team" below for more details.
In many host agency facilities, SEIS provides services in the form of direct instruction from special education teachers to students. In DYS facilities, the SEIS teacher may also consult with, support, and teach alongside DYS' general education staff. SEIS staff also participate in IEP Team meetings convened by the school district, and can provide factual information about the student and their environment where appropriate. SEIS staff further communicate outside of IEP Team meetings with the student's school district to share information about the educational services available at the particular host agency facility.
Reconvening the IEP Team
Classrooms in host agency facilities are different from typical school classrooms. Class sizes may be smaller and include multiple educators, educational support staff, and host agency staff. In addition, there may be security measures in place, medical or clinical interventions, and other differences that students and educational providers need to take into account. To that end, DESE strongly recommends that districts reconvene a student's IEP Team as soon as practicable after the student enters a host agency facility, and ideally within two weeks of the student's intake. The availability of remote conferencing services may prove especially useful in facilitating this IEP Team reconvening.
SEIS and host agency staff can join the student's IEP Team meeting to explain the facility's environment and applicable practices and procedures, along with the services SEIS will provide. The IEP Team meeting can provide the district with the opportunity to learn more about how it can implement the student's IEP and provide the student with access to a free appropriate public education (FAPE) within the facility. For example, the host agency facility can explain the degree to which services can be provided remotely, and the process by which school district staff are admitted in-person to provide services to the student (e.g., background checks prior to scheduling visit; safety and security practices; visitor processing requiring valid, acceptable picture I.D.; successfully passing through metal detectors). Or, if the district is not sending its own staff to the host agency facility, SEIS may be able to give names of service providers who have worked with students previously at the facility.
Reconvening the IEP Team further provides an opportunity for all team members—parents/guardians, the student, district, SEIS, and the host agency—to collaborate on the implementation of an IEP that will support the student's meaningful educational progress during their stay, identify and agree on how best to serve the student and implement their IEP in the host agency facility, and begin planning, as soon as possible, for the student's transition to successfully re-enter the community, a practice referred to as "exit at entry."
Modifying the IEP
If the IEP Team determines that a student's IEP should be modified, it should also consider the best method to modify the IEP for that student while in the host agency facility. The Team should make an individualized determination on how best to proceed based on the needs of the student within the host agency facility and should accompany proposed modifications with any required documentation. The IEP Team should also be mindful of the impact that modifications to the IEP may have on a student's stay-put rights, where applicable.8 Finally, it is important to note that entrance into a host agency facility is not synonymous with a change in educational placement under federal and state special education laws.9
Discharging a Student
When a student is discharged from a host agency facility, SEIS, their district, and the host agency should collaborate to promote the student's successful transition. DESE strongly recommends that all team members work to remain informed of the student's progress while in the host agency facility, to collaborate on IEP implementation, and to proactively plan for the student's return to their prior educational setting—including any modifications that may be needed in the student's IEP.
As ever, I appreciate the cooperation of districts and host agencies with DESE/SEIS as we work together to serve students.