The Department of Elementary and Secondary Education (“DESE”) recently released an advisory concerning the responsibilities of charter schools to special education students. Although charter schools have been a feature of the Massachusetts school landscape for over twenty years, there are still misunderstandings about charter schools’ obligations to their students who require special education.  The DESE advisory addresses some of these issues. It focuses on a Massachusetts special education regulation found at 603 CMR 28.10(6)(a), which covers the responsibilities of the charter school and the student’s public school district (“district of residence”) in the event that a student with special needs may need to leave the charter school in order to obtain an appropriate education.  (This regulation also covers special education students who attend vocational schools, Commonwealth of Massachusetts virtual schools, and schools attended through the METCO program.  However, the advisory targets charter schools specifically.)

If a charter school Team determines that a special education student may need an out-of-district placement (i.e., placement in a DESE-approved public day school or a DESE-approved private day or residential program), 603 CMR 28.10(6) requires the charter school to terminate the Team meeting without identifying a specific placement type. The charter school must then invite representatives from the student’s public school district to a placement meeting, to be held within ten school days.  During the interval between meetings, the advisory states, the charter school and parents are required to “discuss whether there is any other means of serving the student at the charter school.”  (This requirement seems counterintuitive, as the charter school and parents would presumably have considered such possibilities at the first Team meeting.)  The DESE also recommends that, during the interval between meetings, the charter school, parents, and public school district discuss the possibility of the parents visiting any options that exist within the public school district and that might meet the child’s needs.  If no such options exist, then, the DESE states, parents and charter school may consider and investigate out-of-district options.

At the placement meeting, the charter school, public school, parents, and other attendees are required to “consider if the school district where the student resides has an in-district program that could provide the services recommended by the Team,” 603 CMR 28.10(6)(a)(2), either alone or as a supplement to the services available at the charter school. The advisory offers several examples of ways in which the charter school and public school district might work together to create a program to be provided either within the charter school or within the public school district (although it makes clear that the charter school is not required to collaborate in this manner).

If the Team agrees that the IEP cannot be implemented in the charter school or in the public schools, the Team is required to propose an out-of-district placement. 603 CMR 28.10(6)(a)(3).  However, the regulation provides no guidance on what to do when a disagreement arises.

Perhaps the parents want the student to stay at the charter school but the charter school and public school district believe that the student will be appropriately served only in the public school district, or only in an out-of-district program. Perhaps the parents want the student to attend an out-of-district school but the public school district insists that it has appropriate programming.  Perhaps the charter school and the public school disagree on where the IEP can or should be implemented.

While the regulation provides no guidance on resolving such disagreements, the advisory provides a few clues. First, if the charter school can implement most of the IEP in-house but requires supplemental services or service providers, the charter school’s decisions on where and how to provide services seem to trump the public school’s views on the matter.  The advisory states that, as long as the student remains enrolled in the charter school, “the charter school retains programmatic and financial responsibility for the student.”  Thus,

• “The charter school has full discretion over where it will propose to deliver any in-district programming,” and
• “The charter school is not required to contract with [the district of residence] for service delivery unless the charter school chooses to do so.”

But what happens when the Team has decided that the charter school cannot provide an appropriate program, leaving placement within the district of residence and out-of-district placement as the only options? Does the charter school, whose staff members have had the most recent contact with the student, control the placement proposal?  Or does the district of residence, which will become responsible for paying tuition costs, control the placement proposal?

The advisory seems to resolve this question in favor of the district of residence. It states:

• “If there is [appropriate] in-district programming available, the placement Team must propose an in-district program to the parent” (emphasis in original).
• “If the placement Team, including the [district of residence], agrees that the student cannot be served in-district, then the placement Team shall determine that the student requires an out-of-district placement” (first emphasis added, second emphasis in original).
• “The charter school Team cannot act independently to offer an out-of-district placement except if the [district of residence] declines to attend the placement meeting.”

Thus, if the parents and charter school are in agreement that a student requires an out-of-district placement and the public school disagrees, the advisory seems to indicate that the Team cannot propose an out-of-district placement. However, the advisory also warns that the public school “may not simply refuse to agree to an out-of-district placement.”  A public school district may decline to place a student out of district only if it has offered an appropriate in-district program.

The advisory also makes some other helpful points, which are useful even when there is no dispute about a student’s placement:

• Charter schools may not consider a student’s disability, or the services that he or she may require, during the admissions process;
• Charter schools have child find obligations (i.e., obligations to identify and evaluate all students within the charter school population who may need special education, even if they have not previously been identified as such); and
• Charter schools are required to make a full continuum of in-district services available to their students with disabilities.

So where does this leave the parents who removed their child from the public school district to the charter school due to a lack of appropriate placement options in the first place, or who do not want their child returning to an in-district option that they perceive as inappropriate? The advisory reminds parties that “[t]he Bureau of Special Education Appeals (BSEA) is available to make decisions in the event of a dispute,” and that, as required by the stay-put law, the student must be educated “in the last agreed-upon placement (at the charter school) until the dispute is resolved.”

This advisory should help to clarify the responsibilities of the various players in disputes over placements for students attending charter schools. Too often, in our experience, charter schools attempt to wash their hands of challenging students by attempting to turn those students over to their home districts ASAP.  This advisory makes clear that the charter school must thoughtfully consider ways to improve the student’s program at the charter school to enable the child to stay in that environment.  On the other side of the coin, we too frequently see public school districts failing to acknowledge legitimate concerns that charter schools (and parents) express.  Some districts propose inappropriate in-district programs in order to evade or delay the need to place a student in a more specialized out-of-district placement.  In either of these situations, parents should know their child’s rights and be prepared to enforce them.  Parents do have options in these situations, including keeping the child in the last agreed-upon placement at the charter school until the dispute is resolved or placing the child unilaterally in an appropriate out-of-district program (with proper notice) and seeking reimbursement from the charter school and/or the district of residence.

Melanie R. Jarboe is an associate in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.