Reminder Regarding Changes to Special Education Regulations Effective July 1, 2018

This is an overview of some of the key amendments recently made to the Massachusetts Special Education Regulations regarding students in foster care. These amendments went into effect on July 1, 2018. They are prospective, meaning they apply to placement decisions made after July 1, 2018. Assignments made during the 2017-2018 school year for the summer or extended school year services are unaffected.

On March 27, 2018, the Massachusetts Board of Elementary and Secondary Education (the Board) adopted 603 CMR 28.10(5)(b). This regulation relates to the special education services for students who are in foster care, including students placed in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes. It does not apply to students who are not in foster care, such as students in the custody of the Department of Youth Services. The amendments allow the Department of Elementary and Secondary Education (DESE) to assign programmatic and financial responsibility for the special education services provided to these students.

By way of background, in 2016, the federal Every Student Succeeds Act (ESSA) went into effect. ESSA affords a student in foster care the right to chose where he or she attends school. DESE’s newly amended regulations are consistent with this mandate. Now, under both federal law and the Massachusetts regulations, students can choose to attend the same school she or he attended prior to their placement into foster care (the “origin” school) or to attend school in the same municipality as the foster care placement (the “local” school”).

If the student remains in the origin district, that district will remain both programmatically and financially responsible for the student’s special education services. If the student choses to attend school in their local district, the local district becomes programmatically responsible for the student but the district where the parent(s) or guardian lives remains financially responsible. This arrangement is referred to as “shared responsibility.” Under a shared responsibility arrangement, the school district with programmatic responsibility may bill for the special education costs from the school district where the parent(s) or guardian resides. The local district (programmatically responsible) must also invite the origin district (financially responsible) to participate as a member of the student’s IEP team.

If the student’s parent(s) or guardian remains in the origin district, the financial responsibility falls on the origin district. If the parent moves, the financial responsibility follows the parent’s residence, unless the student remains in the origin district (in which case, the origin district is financially and programmatically responsible as long as the student remains in that school).

However, when a student who has continued to attend the same school after entry into foster care advances a grade level that requires the student to move to a new school in the same district (e.g. elementary school to middle school or middle school to high school), the Department of Children and Families will enroll the student in the district where the foster care setting is located. The local school then assumes programmatic responsibility and the district in which the parent resides remains financially responsible.

DESE has recently issued guidance on the amendments to 603 CMR 28.10, including a Question and Answer guide and an LEA Assignment Quick Reference Guide. DESE’s guidance can be found here.

If you have any questions about the regulations discussed here or the other amendments made to the Massachusetts Special Education Regulations, or about school law generally, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.