SUMMARY REPORT OF PUBLIC COMMENT

Jody Williams

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• Publié par: Megar
• Nombre de lectures: 21
• Langue: English

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SUMMARY REPORT OF PUBLIC COMMENT on the Proposed Revisions to the MASSACHUSETTS SPECIAL EDUCATION REGULATIONS   At its meeting on December 21, 2004, the Massachusetts Board of Education invited public comment on proposed revisions to Massachusetts’ special education regulations contained in 603 CMR 28.00 et seq. This summary report reflects all of the public comment received by the Department during the public comment period from December 22, 2004 to March 1, 2005 relative to all of the proposed changes. The proposed changes were publicized widely, and posted on the Department’s website. The Department contacted and held meetings with advocacy groups, and with state agencies involved in the cooperative promulgation of these regulations to discuss these proposals and receive additional comment.   On February 15, 2005, in response to public concerns about certain of the proposed changes, Commissioner David Driscoll determined to withdraw many of the proposed changes to allow further public discussion. While this report contains a summary of all public comment receiving during the public comment period, the Department is moving forward only with technical changes to the regulations and with proposed changes related to the assignment of school district responsibility, primarily in the new proposed Section 28.10.   This report is organized in two sections: (1) Section 1 reflects on the public response to areas of proposed regulations related to technical changes and to the assignment of school district responsibility, and includes the Department’s response to the comments received in relation to the proposals that will be presented to the Board of Education for final promulgation. (2) Section 2 contains a summary of the public response the Department received to all other areas of proposed regulation. Section 2 does not include the Department’s response to the public comment in these areas because these proposals will not be considered by the Board at this time.   •  At the public hearings: The Department held two public hearings attended by over 225 individuals. 117 commenters comprised of 96 individuals and 21 organizations, legislators and PAC chairs/co-chairs offered oral testimony, often accompanied by written comments reiterating oral testimony and offering additional written detail.   • Via e-mail and regular mail: 456 commenters, including 442 individuals and 14   organizations, public agencies and legislators offered written comments via e-mail and regular mail.   •  Generally: Of the 573 total commenters, 138 general comments were made concerning five general areas of concern, and 435 commented on specific sections of the proposed regulations.   •  Regarding changes related to assignment of school district responsibility:    The Department received four general comments and 46 specific section comments regarding proposed changes in new Section 28.10. Commenters included four Massachusetts organizations, three public agencies, two advocate groups, two legislators and four school districts. 1

Section 1: Technical changes and Assignment of School District Responsibility Comments and Responses   General Four general comments were received: Comments •   expressing support for providing all parties involved in school district assignment issues a clearer and more comprehensive set of regulations, and expressing appreciation for clarifying responsibility when there are unclear residency issues; •   recommending avoiding using the singular “mother” and “father” because of the permissibility of same sex marriage in Massachusetts; •   recommending using the term “legal guardian” more consistently throughout the entire section; and •   recommending that when the section refers to students in the “custody” of a state agency, the fullphrase “care or custody of” should be used to more accurately describe the relationship of state agencies. Department Response:  The final proposed regulations o  use the term “parent”  rather than   “father” and “mohter”  throughout section 28.10;  o  include consistent use of the term “legal guardian;” and o  adopt the full phrase “students in the care or custody of state agencies” as recommended.   28.03 & 28.07  Two commenters supported moving the reference to parent advisory Training for council annual workshops   from   28.07(4) to 28.03, the section on Parents school district responsibility; Department Response:  The final proposed regulations move this provision to Section 28.03 without revising the language.    28.10(1)(d) One commenter supported proposed Section 28.10(1)(d), stating that   it provides a clear and decisive interim process for determining district Maintaining responsibility until there is a final resolution of responsibility. responsibility for Three comme r ncerns: assigned nters exp essed the following co students until a •  t s h tu e  d r e e n f t e s r   e a n tt c e e n  t d o i   n “ g M   a e s d s u a c c at h i u o s n e a t l t   s p   r s o t g u r d a e m nt s ”  i   n c   o ot u h ld e   r b  s e t   a r t e e a s d ;     t   o exclude  new district is •  there is a need to avoid possible impasses if a school district assigned   refuses to assume assigned responsibility for a student; and   •  there is a need to clarify that transfer to a new school district will   not take place until the other school can provide FAPE and is   ready to provide services. Department Response:  The final proposed regulations o  remove the designation “Massachusetts” student to reduce confusion, and o  rephrase the regulation and use the term “deemed responsible” to clarify that school districts cannot wait until formal assignment has been made as a means of delaying or refusing responsibility under these regulations. No changes are made in response to the third comment about transfer because school

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districts may not delay providing services to students in this situation.   28.10(2)(a) One commenter was concerned that if two districts are jointly responsible there is increased potential for confusion, disagreement, S w t it u h d  t e h n e t   s p  r a e r s e i n d t i   ng  a di n s d sign e if m ic e a n n t t s     d b e e p t l w et e i e o n n     d o i f s   t s r t i a c f t f s  t . i    me and resources in resolving  agre Department Response:  The Department agrees further clarity in this section is needed, including reducing the number of circumstances where two districts share responsibility. The final proposed regulations include revised language to specify the following: o   if a student requires an in-district placement to implement the IEP, the student lives with both parents, and the parents live in two different school districts then the school district where the student is enrolled is responsible (28.10(2)(a)(1)); o   if a student requires an out-of-district placement to implement the IEP, the student lives with both parents, and the parents live in two different school districts then the school districts where each of the parents resides are equally responsible (28.10(2)(a)(2)).

  28.10(2)(b) One commenter urged the Department not to delete language addressing students 18 and over living in a residence funded or Students 18 supervised by a human se years or older that sentence school distric r t v s i   c c e o  a ul g d e   n di c s y a ,  g express t i o n   g r   e c s o p n o c n e s r i n b   i t li h ty a . t         without ree as Department Response:  The regulation section regarding state agency-funded or supervised students is included in 28.10(4) and does not require repetition in 28.10(2).   28.10(2)(c) One commenter expressed concern that the regulation for students Students in that are Department of Social Services-funded or placed in foster homes r h does not account for unanticipated educational needs and associated foste omes   financial costs of such actions by DSS, and suggested holding the originating school district fully responsible if the student’s educational costs exceed the average per pupil special education rate. Department Response: The regulations have consistently treated school district responsibility for students in foster homes in the same manner as students living with their families and will continue to do so.   28.10(3) Two commenters objected to the proposed deletion of the phrase Responsibility “when eligible students are in hospitals” out of concern that these based on students may languish in such settings without special education services   residence of because school districts do not provide interim services or actively work parent(s)  with hospital staff and other agencies.

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Department Response: The Department agrees that providing services to children who are hospitalized is essential. Changes to the regulations require the community that had been responsible prior to hospitalization to maintain responsibility through the period of hospitalization. This is expected to assist in ensuring services and stability for students in the receipt of necessary services. An exception is provided in 28.10(8)(a)(5) for students in the care or custody of a state agency who are hospitalized and the agency does not intend to return the student to the residence held prior to hospitalization. No changes were made to 28.10(3), as this regulation no longer relates to the concern raised.   28.10(4), 4(b).  Four comments were received. Shared school •  One commenter expressed concern that the phrase “and students district residing in an approved residential special education school as a responsibility   result of action by the Department of Social Services” does not adequately address shared responsibility with a state agency.   •  Another comment suggested adding to the phrase that application of this regulation is limited to in-district placements. •  One comment suggested the need to limit financial responsibility of school districts when placement is made by DSS. •  One comment suggested adding to 28.10(4)(b) reference to the the provision that directly paying tuition to the out-of-district school does not preclude school districts from making such other required payments. Department Response:  The final proposed regulations o  are not intended to address shared responsibility with state agencies and are not limited to in-district placements; therefore no changes are made in response to the first two concerns raised. o  Financial responsibility of school districts when DSS makes placement has been adequately addressed in the Department’s Administrative Advisory 04-4; therefore, no changes were made in response to the third comment. o  The final proposed regulations adopt the recommendation of the fourth commenter regarding 28.10(4)(b).

  28.10(5), 5(a), These sections received six comments. 5(b). •   One commenter suggested using the phrase “temporary, transitional Responsibility or emergency placements” in place ofterms like “foster care,” “bridge for homeless home” or “group home” in determn i ng whether or not a child is students   covered by the McKinney-Vento Homeless Assistance Act. •   Three commenters perceived an unfair negative financial impact on  large, urban districts in which large numbers of families live in homeless shelters and temporary residences. •   One commenter was concerned about a conflict between this provision and the delay in fiscal responsibility pursuant to M.G.L. c. 71B, § 5 (the “move-in law”). •   One commenter proposed adding to the phrase “parent or guardian” the additional language “or state agency with care or custody of the student.”         

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Department Response:  The final proposed regulations o  refer to homeless students as defined by   McKinney-Vento   and   do not use the terms “foster care,” “bridge home”or “group home.” o  The Department agrees that disproportionate financial impact could have resulted from the proposed language and therefore has adopted the suggestion that financial responsibility for homeless students should remain with the school district that was financially responsible for the student prior to becoming homeless for students served in out-of-district settings. o  With the change in financial responsibility noted above, the application of the move- in law is properly limited to change in “residence.” No additional changes are necessary. o  The suggested language regarding care or custody has been added.

  28.10(6) Charter, vocational, Metco and choice schools    

The Department received two supportive comments and nine comments suggesting modifications to current and proposed language. •   One commenter supported the flexibility provided to charter, vocational or Metco schools in providing in-district programs. •   One commenter supported this section overall, but suggested that choice schools are not like charter, vocational and Metco schools. •   One commenter suggested inviting the school district of residence to Team meetings when out-of-district placements may be discussed, rather than having a separate placement meeting. •   One commenter suggested adding an explicit statement that the parent or legal guardian must be invited to the placement meeting.   One commenter expressed a sense of potential for conflict between • “program districts” and other distrcits when responsibility for a student is returned to the school district of residence. •   One commenter expressed concern about a possible conflict with the school finance regulations (603 CMR 10.07), which references that receiving schools provide and pay for those students whose special education needs can be met by in-district programs. This commenter felt that requiring small schools to continue to have responsibility for students who are served elsewhere rather than simply reassigning the responsibility was an inefficient use of public funds. •   One commenter believed the phrase “may contract with the school district where the student resides” was ambiguous with respect to what district is financially responsible. •   One commenter expressed concern that choice schools are not being treated the same as charter, vocational and Metco schools under 28.10(6)(b) in relation to out-of-district programs. •   Several commenters expressed concern regarding the provision that required a charter school to continue responsibility for students whose special needs could not be served by the charter school but could be served by the school district of residence in an in-district program.

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Department Response:  The final proposed regulations o  continue to include “choice” schools in this section, based on the common factor that all of these schools are created through provisions of the Massachusetts General Laws. o  The final proposal retains language related to inviting the school of residence to the Team meeting because Teams do not make placement determinations before developing the IEP, and therefore it is not possible to accommodate this suggestion. o  The parent is a necessary member of the placement Team; therefore, specific reference to the parent’s participation is not necessary. o  Although there is potential for conflict when responsibility is returned to the district of residence, these regulations cannot prevent conflict in every case, the proposed final regulations strike a balance by seeking to include the district of residence in placement decisions that may result in changed responsibility. o  The Department reviewed the school finance regulations and found no conflict with the proposed changes to this section. Small schools, like larger school districts, are required to provide a full range of in-district services, and many schools or districts contract with other districts to provide services for children who cannot be accommodated with the existing school or district program; however, if the placement team agrees that in-district services provided by the district of residence are the appropriate service, then, upon parental acceptance of that proposed change in placement the responsibility will shift to the district of residence. o  The difference in treatment for choice schools is related to different statutory provisions, and therefore no changes are made to the final proposed regulations. o  Although the Board considered changes that would have transferred responsibility to the district of residence when a student whose IEP services could not be provided in the charter, choice or vocational school is placed in an in-district program in the district of residence, the Board ultimately determined to wait on changes to this regulation to allow for additional public discussion during the fall of 2005-6.

  28.10(7) Two comments were received in this section. T as e s m i porary n   ts   •   t O h n at e     t c h o ey m  p m r e o n vi t d er e     e fo x r p   r a e  c s l s e e a d r     f a u n ll d  s  d u e p c p i o si rt v   e f   o i r n  t t h er e i   m c   h p a r n o g c e e s s , s     a f n or d    stated  gnme determining responsibility until there is a final resolution of a dispute.   •   One commenter was concerned that using “best information available” for a temporary assignment of responsibility lacks a substantive standard, will result in increased confusion, and will add to administrative time and effort in ascertaining information. Department Response:  The Department agrees that clarifying the phrase would be helpful, and has deleted the word “best,” which connotes a subjective opinion. The final proposed regulation changes the phrase to “based on the information available to the Department.”        28.10(8)(a)(3) T   he  O D n e e p  c a o rt m m m en e t n  r te e r c   e s i u v g e g d  e t s w te o  d c  c o h m a m ng e i n n t g s     t o h n e     t l h a i n s  g s u e a c g ti e o   n t . o    read “when a  • Limited legal guardian is appointed on a limited basis or   is not acting as the guardianships  parent.” •   One commenter suggested adding the examples of legal guardians 6

who are assigned on a temporary basis, as in 28.10(8)(c)(4). Department Response:  28.10(8)(a) describes the circumstances in which a request for assignment may be made. 28.10(8)(c) describes the criteria that will be used when an assignment request is received and is, therefore, more descriptive. The language regarding a legal guardian appointed on a limited basis is revised in both 28.10(8)(a) and (8)(c), and removes the terminology “not acting as the parent.”   28.10(8)(b) The Department received one comment recommending that the word Entity l “ i a m g it e  t n h c e y  r ” e  i g n u c l l a u ti d o e n   ’ t s h   e a  t p e p r li m c   a   t “ i s o t n a   t f e or ”     a t s o  s c i l g a n ri m fy e  t n h t  a t t o  t  l h o e c r a e l    i e ns d o  u inte ti ntion to  requesting ca on assignment  agencies only. Department Response: The Department adopted the recommended change.   28.10(8)(c), Six comments were received. Criteria to •   c O ri n te e r   i c a o  t m ha m t  e w n i t ll e   r b   e e   x u p s r e e d s   s t e o d d  a et p e p r r m e i c n ia e t   i s o c n h  f o o o r l     t d h i e s   t s ri e c c t  t r io e n s ’ p s o  li n s s t i i b n il g i   t o y. f    the  assign a city, •   One commenter suggested replacing the word d” with “at the time town or school ”war district   the court granted the request for guardianship” in 28.10(8)(c)(2). •   One commenter suggested defining the circumstances in which a  legal guardian is “acting as a parent” in 28.10(8)(c)(3). •   One commenter supported 28.10(8)(c)(6), but suggested it does not go far enough in describing related situations in which the parent does not have freedom to choose where he or she lives. •   Two comments were received in relation to 28.10(8)(c)(8). Both recommended deleting this provision entirely since it is not based on residency, and one commenter also asserted that the state and not a school district should have responsibility in situations where the student has not had any parent or legal guardian in the state. Department Response:  The final proposed regulations o  adopt the recommended change in 28.10(8)(c)(2) replacing “at the time the student became a ward of the state” with “a t  he time the court granted the request for  guardianship.” o  The Department agrees clarification to 28.10(c)(3) is helpful, and has added, “If the parents’ rights have been terminated”, anddeleted the phrase “is acting as a parent.” o  The Department has added additional examples of institutional settings in 28.10(8)(c)(6) to provide additional clarity. o  Deleted the provision at 28.10(8)(c)(8), because it deals with an extremely limited circumstance which can be addressed through other provisions of the regulations.

  28.10(8)(d) Two comments were received in this section. •  One commenter suggested notifying di Department Department has identified the district as s   tr h i a ct v s i   n i g n w o ri t t e in nt g i   a w l  h re e s n p  t o h n e s   ibility  shall notify in where information is uncleissing.  This c   o p mmenter also  writing the ar or m assigned school suggested that after an assignment has been made and 7

district(s)   communicated to the school district the Department should furnish, if requested, all information it relied upon in making the assignment.   •  One commenter suggested the phrase “for that period of time dating from factual changes to notification” needs clarification. Department Response:     o  To the extent that districts are known to be involved, the Department does notify those districts in writing of their responsibilities, and provides full documentation supporting that determination upon request. However, the Department has determined that there is no need to regulate this administrative process. o  The Department agrees that the meaning of the phrase “for that period of time dating from factual changes to notification” is unclear, and has changed the language in renumbered section 28.10(8)(e) to “that were incurred during the period of time in which the new district should have been responsible.”

  28.10(9) The Department received six comments regarding this section. •   One commenter objected to a separate appeals process for LEA Appealing assignments. assignment of school district •   One commenter suggested including in 28.10(9)(b) a mechanism for responsibility   the school district to receive a copy of its file from the Department before the school district has to file a request for an appeal to the  BSEA. •   One commenter was concerned that 28.10(9)(e) conflicted with the BSEA hearing rule regarding the Hearing Officer determining whether or not a pre-hearing conference is necessary. •   One commenter suggested adding to 28.10(9)(f) “unless the postponement is requested by a party and allowed by the Hearing Officer for good cause.” •   One commenter suggested changing the word “remand” to “returned to” in 28.10(9)(g) to avoid suggesting something was returned to a lower court. •   One commenter expressed concern that 28.10(9)(h) needlessly limits the scope of the Hearing Officer’s decision. Department Response: The final proposed regulations o  maintain the separate appeals procedure because appealing LEA assignment does not affect an eligible student’s special education program and does not require the same procedures as other matters under the BSEA’s jurisdiction. o  The Department is reviewing its protocols to ensure that the reasons for its assignment decision are included in the notice sent to interested parties. To allow for sufficient time for an appealing party to obtain additional information from the Department that it may wish to request and include with its appeal, the time for filing an appeal has been extended from 30 days to 60 days from the date on which the Department’s notification of assignment is made. o  The regulations delete the reference to pre-hearing conferences. There is no need to regulate in this area where the Hearing Officer may exercise his or her discretion. o  The Department has adopted the suggested changes to 28.10(9)(f), which is included in renumbered 28.10(9)(d). o  The recommended change in wording was adopted. o  The limited scope of the determination in the appeals process is related to the separate procedure for assignment of responsibility. Other issues related to the

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student’s evaluation, services or placement are subject to different hearing procedures, and parties must comply with specific requirements under IDEA 2004 regarding notice and resolution sessions.These latter requirements are outside of the scope of assignment of responsibility.

          Section 2: Other Areas – Public Comment Only     A. GENERAL COMMENTS   The Department received 138 general comments concerning five general areas of concern. The comments, which did not refer to specific proposed regulations, are summarized below Also, one parent expressed gratitude for the Commissioner’s decision to postpone moving forward at this time with all the proposed changes, except for limited technical changes and those related to Section 28.10. Because the Department is not recommending changes to these areas at this time, the Department has not responded to the public comment received.   1. Opposition to any changes to the regulations: 61 parents, family members, taxpayers, registered voters and a former school business manager opposed all changes to state special education regulations. Half of the commenters expressed satisfaction with the way in which their children are benefiting from appropriate services and placements under the current regulations, and favored making no changes to them. Three parents requested that the Department make no changes until final federal regulations are issued. Others expressed general opposition to changes to the regulations.   2. Proposed regulations will take away parental rights, and violate state and federal law: 23 parents and other family members of children and adults with disabilities, and one professional, expressed concern that the proposed regulations would remove decision-making authority away from parents of children with disabilities. Some expressed concern that the proposed regulations conflicted with federal and state law in the areas of civil rights and special education. The commenter who was working in the field as a professional indicated the importance of the parent perspective in special education decision-making.      3. Changing regulations would increase the difficulty already experienced by parents in accessing special education services: 21 parents described their current struggles with securing an appropriate education for their children, and were concerned that changing the regulations would make it more difficult to do so. One parent indicated a particular concern about these changes in light of the MCAS standards. Many parents described the daily challenges, roadblocks and struggles they face in raising children with disabilities. Five family members additionally expressed concern that the proposed changes are ambiguous and leave too much room for interpretation. These commenters expressed an interest in the Department’s adopting regulations that use everyday language that is more easily understood. A licensed social worker expressed concern that families without economic resources would be disproportionately affected by the changes. One 9

parent expressed concern that the proposed regulations do not specifically refer to the goals of special education law to ensure that no child is stigmatized and that the child’s maximum development is achieved.   4. Proposed regulations disproportionately benefit school districts: 10 parents expressed concern that the proposed regulations would disproportionately benefit school districts and give them too much authority to make educational decisions for eligible students. The commenters expressed concern that financial considerations have a significant impact on educational decisions. Similarly, four other commenters expressed concern that the proposed regulations were based only on the budgetary concerns of the state and local authorities.   5. Proposed regulations send the wrong message about educational priorities: Eight parents expressed concern that the proposed regulations did not emphasize sufficiently that that children’s needs take priority in all decisions about special education. They expressed concern that the Department should take care not to send the wrong public message. One school adjustment counselor expressed concern that current programming would be severely altered under these changes, and that the proposed regulations would do a disservice to children with special needs and their families. A former Board of Education member expressed the concern that the proposed regulations would undermine full inclusion at the earliest age for children.   B. COMMENTS REGARDING WITHDRAWN SECTIONS OF THE REGULATIONS Summarized below are the comments received about specific areas of regulation that have been withdrawn from consideration by the Board at this time.   28.02 18 comments from parents and other interested parties related   concerns about the proposed changes to the definition of Autism Definitions   (28.02(6)(a)) . In particular, a number of commenters expressed strong concerns that •   changes to this definition will negatively impact students diagnosed with autism who also have mental retardation or emotional disturbances; and •   Teams may be less likely to find students eligible under the autism category or multiple disability category, resulting in a reduction in necessary services. Over 325 parents and advocates, approximately 70 state legislators, and various other interested parties made comments related to the proposed definition of Placement (28.02(17)) . The majority of commenters expressed concern that school administrators who are not a part of the IEP Team would have the authority to assign a particular school or classroom. Commenters felt this added definition would •  allow districts to change IEPs without parental consent; and •  no longer allow the student’s placement to be a Team decision.

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Additional clarity was requested in the proposed changes to definitions of Approved private special education school (28.02(1)) and Progress effectively in the general education program (28.02(18)) .

  28.03 Over 225 parents, approximately 70 legislators, 11   advocacy organizations, and various other interested parties School District made comments regarding the placement of special Administration education facilities (28.03(1)(b)(4)(iii)), and the proposed and Personnel  use of a Department approval process that would allow for separately-sited special education classrooms. There was great concern for •  least restrictive environment requirements; •  avoiding segregation of students with special needs; and •  removing students from inclusive classrooms. In addition, clarity and criteria was requested to address what the proposed phrase ”overriding educational purpose” means. One special education administrator requested changes in language and clarity in the areas of Responsibilities of the School Principal (28.03 (2) (a)(b)), and Educational Services in Home or Hospital (28.03 (3)(c)).  

  28.04   Referral and Evaluation  

 

Approximately 185 parents, 69 state legislators, and 12 organizations expressed concern that proposed language in Referral for Evaluation (28.04(1)) would allow school districts to refuse to conduct initial evaluations or re- evaluations for students who have been referred for an assessment by a parent, teacher, or other professional.   Additional comments were made on the following: •  One organization requested changes and provided recommendations in Required assessments (28.04(2)(a)(2)(i)) regarding Limited English Proficient students. •  One organization and three parents expressed concern that changing home assessment to parent interview (28.04)(2)(b)(3)) would eliminate an “important piece to   the delivery of a child’s educational services” and recommended that the current language remain. •  One commenter emphasized the importance of the current regulations in providing affordable independent evaluations   (28.04(5)) .

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