Overview
Federal regulations require states to implement the requirements of the Individuals with Disabilities Education Act, which, among other things, guarantees the right of every student with a disability to receive free and appropriate public education (FAPE).7 However, during our review of the most recent contracts between the Department of Youth Services (DYS) and the Collaborative for Educational Services (CES) for CES to provide general education services, and the contracts between the Department of Elementary and Secondary Education (DESE) and CES for CES to provide special education services, to children in institutional settings, we noted that the contracts lacked certain required provisions.
According to Section 300.154(a) of Title 34 of the Code of Federal Regulations (CFR), the chief executive officer of a state’s Department of Education, or his/her designee, must make sure that there is an agreement between each noneducational public agency (such as DYS, the Department of Mental Health, or county houses of correction) and the state educational agency, which in the Commonwealth is DESE, to ensure that all required services associated with FAPE are provided.
Despite these requirements, we found that there was no agreement between DESE and DYS and that CES’s contracts with DESE and DYS did not include any provision or other responsibilities on the part of these agencies to ensure the timely and appropriate delivery of services associated with FAPE.
The Office of the State Auditor believes that DESE, DYS, and CES should collaborate and ensure that all contracts for general and special education services meet all of the requirements of 34 CFR.
Auditee’s Response
The Department of Youth Services [contracts] with the Commonwealth Corporation to provide general education and vocational services in accordance with DYS statutory mandate to provide general education to youth in its care and custody. G. L. c. 18A, §2. The Commonwealth Corporation subcontracts with CES to provide general educational services as well as transitional services.
DESE has opined that DYS is not [a local education agency] subject to the licensure requirements of 603 CMR 7.00 that dictate that teachers teach “out of field” no more than [20%] of the time. Our positions are consistent with DYS and DESE’s interpretation of the law and regulations and those two agencies have the right and authority to interpret their own legislation and their own regulations.
Further, there is no evidence to suggest that the educational outcomes of DYS youth are negatively affected by the educational structure in DYS programs.
The [Office of the State Auditor] cites that DYS and DESE need to enter into an agreement to ensure certain services are provided in accordance with CFR 300.154(a). This Regulation provides that the requirements of (a) can be met through a statute or regulations. Since DESE has statutory authority as well as regulations governing its requirement to provide special education in institutional settings 603 CMR 28.06(9), the requirements of (a) are arguably met.
Auditor’s Reply
As noted above, the contracts between CES, DESE, and DYS that were in effect during our audit period did not contain certain provisions required by 34 CFR 300.154(a) that are related to ensuring that all required services associated with FAPE are provided. Although DESE may have the authority to implement these requirements for institutional settings through its regulations, it has not done so; therefore, we urge DESE, DYS, and CES to collaborate and ensure that all contracts for general and special education services meet all of the requirements of 34 CFR.
| Date published: | July 22, 2021 |
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