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SPECIAL EDUCATION

Under the Individuals with Disabilities Education Act (IDEA), public schools have the obligation to provide a Free Appropriate Public Education (FAPE) to students ages 3 through 21 with identified disabilities who require special education and related services in order to make educational progress.  See 20 U.S.C. § 1401(3)(A)(9) & 34 C.F.R. 300.101.

What is FAPE?  It sounds straightforward but there is not an easy answer.

“Free” means at public expense and at no cost to students or their families.  “Public Education” is educational programming from the public school district(s) with programmatic and financial responsibility for the special education student.

But what about “Appropriate”?

For this we can look to two key United States Supreme Court decisions in cases involving the legal analysis of the definition of FAPE.

In Endrew F. v. Douglas County School District, 580 U.S. __ (2017), the US Supreme Court clarified that the IDEA requires an individualized “educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” and “appropriately ambitious in light of [those] circumstances”.  “The goals may differ, but every child should have the chance to meet challenging objectives.”

The first US Supreme Court case to analyze the FAPE standard was Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).

Massachusetts uses the same legal definition for FAPE as the federal standard in IDEA.

In special education law, Least Restrictive Environment (LRE) is a requirement that special education students be educated in the general education setting with non-disabled peers as much as possible and that they only be removed from that setting if necessary to receive services and/or specially designed instruction in order to make progress in light of the student’s circumstances.

Under federal law, public schools “must ensure that – To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”  34 C.F.R. § 300.114.

Massachusetts defines Least Restrictive Environment (LRE) essentially the same way in 603 CMR 28.02: “Least restrictive environment (LRE) shall mean the educational placement that assures that, to the maximum extent appropriate, students with disabilities, including students in public or private institutions or other care facilities, are educated with students who are not disabled, and that special classes, separate schooling, or other removal of students with disabilities from the general education environment occurs only when the nature or severity of the student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

Special education students are entitled to receive a free appropriate public education in the least restrictive environment (LRE) in which they can make effective educational progress across all domains of identified need (e.g. academic, social, emotional, behavioral).

LRE is defined by how much a student is within or outside the general education setting.

The absolute least restrictive environment is an inclusion setting.  This is where a student is primarily or solely within the general education classroom.  Within the classroom the student may receive support from specialized staff and/or receive accommodations.  The student may also get pulled out of the classroom to receive specialized instruction or related services, such as small group reading, occupational therapy, speech and language therapy, or counseling.

In a substantially separate setting, the student is still in the public school but more outside the general education format than in it.  The profiles of these students tend to be more intense or complex, thereby necessitating much more specialized and comprehensive programming on their Individualized Education Programs (IEPs).  This could be a small class language-based classroom for students with significant literacy deficits, or a classroom with intensive emotional and behavioral supports for students struggling to self regulate.

Some students are no longer able to make progress in a public school with access to the general education setting.  The next level of restrictiveness is a separate day school, which may be in a public regional collaborative or a private school approved by the Massachusetts Department of Elementary and Secondary Education (DESE).  These schools have different specialties with varying target populations.  For example, they may focus on therapeutic support for social, emotional, and behavioral needs, be dedicated to students with specific learning disabilities, use Applied Behavior Analysis (ABA) programming for students with autism, or specialize in young adults who require transitional support through age 21.  School districts must provide transportation for student who attend these schools.

The most restrictive environment is a residential school.  These are for students with the most significant need who cannot live at home.

In Massachusetts, placement through the special education Team process at an out-of-district school must first consider DESE approved schools, with a preference for schools within the state.  There are some approved schools outside Massachusetts.  A school district may seek individual student program approval from DESE for placement at an unapproved school if the Team is unable to identify an available and appropriate DESE approved school for the student.

A special education student’s Individualized Education Program is a working document developed and written by the special education Team that describes the impact of the student’s disability or disabilities on the student’s ability to receive an appropriate education and includes the specially designed instruction, related services, accommodations, supplementary aids, and placement necessary to make educational progress.

In detail, 34 C.F.R. § 300.320, an implementing regulation for the Individuals with Disabilities Education Act, specifies that an “individualized education program or IEP means a written statement for each child with a disability that is developed, reviewed, and revised in a meeting … that must include—

(1) A statement of the child’s present levels of academic achievement and functional performance, including—
     (i) How the child’s disability affects the child’s involvement and progress in the general education curriculum (i.e., the same curriculum as for nondisabled children); or
     (ii) For preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities;
(2)
  (i) A statement of measurable annual goals, including academic and functional goals designed to—
     (A) Meet the child’s needs that result from the child’s disability to enable the child to be involved in and make progress in the general education curriculum; and
     (B) Meet each of the child’s other educational needs that result from the child’s disability;
  (ii) For children with disabilities who take alternate assessments aligned to alternate academic achievement standards, a description of benchmarks or short-term objectives;
(3) A description of—
     (i) How the child’s progress toward meeting the annual goals described in paragraph (2) of this section will be measured; and
     (ii) When periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided;
(4) A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided to enable the child—
     (i) To advance appropriately toward attaining the annual goals;
     (ii) To be involved in and make progress in the general education curriculum in accordance with paragraph (a)(1) of this section, and to participate in extracurricular and other nonacademic activities; and
     (iii) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section;
(5) An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in paragraph (a)(4) of this section;
(6)
     (i) A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments … ; and
     (ii) If the IEP Team determines that the child must take an alternate assessment instead of a particular regular State or districtwide assessment of student achievement, a statement of why—
        (A) The child cannot participate in the regular assessment; and
        (B) The particular alternate assessment selected is appropriate for the child; and
(7) The projected date for the beginning of the services and modifications described in paragraph (a)(4) of this section, and the anticipated frequency, location, and duration of those services and modifications.”

In Massachusetts, 603 C.M.R. 28.05, states:”Upon determining that the student requires special education and based upon the evaluative data, the Team shall write an IEP for the student and decide the student’s placement. The IEP shall describe the special education and related services that the student requires and shall include all elements required under federal and state law.(a) The IEP shall include specially designed instruction to meet the needs of the individual student and related services that are necessary to allow the student to benefit from the specially designed instruction, or may consist solely of related services that are necessary to allow the student to access the general curriculum, consistent with federal and state requirements.(b) The Team shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.(c) For any student approaching graduation or the age of twenty-two, the Team shall determine whether the student is likely to require continuing services from adult human service agencies. In such circumstances, the Administrator of Special Education shall make a referral to the Bureau of Transitional Planning in the Executive Office of Health and Human Services in accordance with the requirements of … Chapter 688.(d) The daily duration of the student’s program shall be equal to that of the regular school day, unless the Team states that a different duration is necessary to provide a free appropriate public education to the student. In such case, the Team shall specify the daily duration of the program, and the Team shall state on the IEP the reason for such different duration.

    1. An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.
    2. If residential services are required, the IEP must clearly specify the reasons for such determination and how such services will be coordinated with the day education services provided to the student. Additionally, the goals and services on the student’s IEP must reflect the comprehensive nature of the educational program required.
    3. If a longer program is required, the student’s IEP must specify why a longer program is necessary.
    4. Camping or recreation programs provided solely for recreational purposes and with no corresponding IEP goals or specially designed instruction shall not be considered extended year programs.”

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., requires that an IEP include transition planning for older students to develop skills to promote success with identified post-secondary goals.

In enacting IDEA, the United States Congress stated in 20 U.S.C. § 1400 that “Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”  One stated purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education . . . designed to meet their unique needs and prepare them for further education, employment, and independent living . . . .”

In Massachusetts, “[b]eginning age 14 or sooner if determined appropriate by an individualized education program team, school age children with disabilities shall be entitled to transition services and measurable postsecondary goals”.  M.G.L. c. 71B, § 2.  “The school district shall ensure that options are available for older students, particularly those eligible students of ages 18 through 21 years. Such options shall include continuing education; developing skills to access community services; developing independent living skills; developing skills for self-management of medical needs; and developing skills necessary for seeking, obtaining, and maintaining jobs.”  603 C.M.R. 28.06(4).

Under IDEA, the IEP must include “the transition services (including courses of study) needed to assist the child in reaching those goals” in the IEP.  20 U.S.C. § 1414(d)(1)(A)(i)(VIII).  “The term ‘transition services’ means a coordinated set of activities for a child with a disability that—(A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; (B) is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and (C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.”  20 U.S.C. § 1401(34).

Public schools must provide extended school year (ESY) services to special education students as part of their Individualized Education Program (IEP) if required to receive a free appropriate public education (FAPE).  This is required by the Individuals with Disabilities Education Act (IDEA).  See 34 C.F.R. § 300.106.

This is also required by Massachusetts law: “An extended year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.”  603 C.M.R. 28.05(4)(d)(1).

The Massachusetts Department of Elementary and Secondary Education issued a Question and Answer Guide for special education Teams assessing whether ESY is necessary for a particular student.  Among the guidance is the following:

“Specifically, significant regression and recoupment consist of the following inter-related elements: (1) the loss of performance levels that were attained before a break in service, (2) the child’s limited learning rate, which lengthens the amount of time the child requires to review and/or relearn previously attained objectives, and (3) the fact that the time for that child to accomplish such recoupment is greater than the period of time the school district allows all other children for review and/or relearning.”

“In addition to significant regression and/or limited recoupment, courts have set forth other ESY criteria to be applied by a Team, as follows: the degree of the child’s impairment, the parents’ ability to provide structure at home, the child’s rate of progress, the child’s specific behavior and/or physical problems, the availability of alternative resources, the child’s ability to interact with non-disabled children, the specific curricular areas in which the child needs continuing attention, the vocational and transition needs of the child, whether the service requested is ‘extraordinary’ rather than usual in consideration of the child’s condition.”

“When there is no previous record of a child’s substantial regression after a significant break in service, a Team should still consider the need for an ESY program if the following circumstances are present: 1. there is lack of progress in meeting short-term objectives over two marking periods, resulting in little or no progress made over the school year, 2. there are significant regression/recoupment problems over short-term vacation periods or other breaks in the school year, and /or 3. the unique nature of any specially designed instruction or related services due to the disability of the student requires such extended school year programming.”

In Massachusetts, parents have the right to observe their child’s current special education program and any program proposed for the child in connection with the child’s Individualized Education Program (IEP).  The parent may designate an evaluator or consultant to observe as well.

Pursuant to Massachusetts General Laws chapter 71B, section 3: “To insure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall, upon request by a parent, provide timely access to parents and parent-designated independent evaluators and educational consultants for observations of a child’s current program and of any program proposed for the child, including both academic and non-academic components of any such program. Parents and their designees shall be afforded access of sufficient duration and extent to enable them to evaluate a child’s performance in a current program and the ability of a proposed program to enable such child to make effective progress. School committees shall impose no conditions or restrictions on such observations except those necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation by a parent or a designee.”

The Massachusetts Department of Elementary and Secondary Education (DESE) issued an extensive advisory with more details on the implementation of the law: Technical Assistance Advisory SPED 2009-2: Observation of Education Programs by Parents and Their Designees for Evaluation Purposes.  The advisory addresses what “timely access” and “sufficient duration and extent” mean, and elaborates on the types of conditions and restrictions on observations contemplated by the law, including those related to student safety, educational program integrity, and protecting the confidentiality of personally identifiable student information.

In Massachusetts, formal litigation begins at the Bureau of Special Education Appeals (BSEA).  A parent or school files a complaint to get the process started.  The complaint states the facts of the situation and lists requests for legal relief, such as changes to the IEP or placement, compensatory services, reimbursement for a unilateral placement, an evaluation, or other equitable relief.  The case is assigned a hearing officer, who is like a judge.  An evidentiary hearing is scheduled.  This hearing is like a trial.  Whoever filed the complaint has to prove to the hearing officer why the other party did not follow the law and what legal relief should be ordered as a result.  Parents are strongly advised to have an attorney for a BSEA proceeding.

Every state or jurisdiction has an administrative law agency like the BSEA for special education legal disputes.

The Massachusetts Department of Elementary and Secondary Education (DESE) has a Problem Resolution System (PRS) that assesses and investigates complaints about school districts not abiding by their legal obligations, including for special education procedures.  PRS issues a Letter of Finding and can require corrective action from the school district, such as updating policies, training staff, and compensatory services.  A PRS complaint must be filed within one year of the event at issue.

The Office for Civil Rights (OCR) at the United States Department of Education receives and investigates discrimination complaints, including based on disability.  OCR may enter into a resolution or compliance agreement with a school district or seek to take enforcement action.  OCR may also facilitate a resolution between the parties, which can result in an agreement between a family and school district.  An OCR complaint must be filed within 180 days of the event at issue.

We have represented clients in the following school districts: Acton-Boxborough Regional School District, Andover Public Schools, Arlington Public Schools, Assabet Valley Regional Vocational Technical School District, Bedford Public Schools, Belmont Public Schools, Berlin-Boylston Regional School District, Billerica Public Schools, Boston Public Schools, Braintree Public Schools, Bridgewater Raynham Regional School District, Brookline Public Schools, Burlington Public Schools, Cambridge Public Schools, Cape Cod Regional Technical High School, Concord Public Schools, Concord-Carlisle Regional School District, Dedham Public Schools, Dover Public Schools, Dover-Sherborn Regional School District, Dracut Public Schools, Duxbury Public Schools, Easthampton Public Schools, Everett Public Schools, Fitchburg Public Schools, Framingham Public Schools, Franklin Public Schools, Greenfield Public Schools, Groton Dunstable Regional School District, Harvard Public Schools, Haverhill Public Schools, Holliston Public Schools, Hopkinton Public Schools, Hudson Public Schools, King Phillip Regional School District, Lexington Public Schools, Lincoln Public Schools, Lincoln-Sudbury Regional School District, Lowell Public Schools, Malden Public Schools, Mansfield Public Schools, Marblehead Public Schools, Marlborough Public Schools, Martha’s Vineyard Regional School District, Maynard Public Schools, Medford Public Schools, Melrose Public Schools, Methuen Public Schools, Milford Public Schools, Millis Public Schools, Milton Public Schools, Minuteman Career and Technical High School, Monomoy Regional School District, Nantucket Public Schools, Nashoba Regional School District, Nashoba Valley Technical School District, Natick Public Schools, Nauset Public Schools, Needham Public Schools, Newburyport Public Schools, Newton Public Schools, Norfolk County Agricultural High School, North Andover Public Schools, North Reading Public Schools, Northbridge Public Schools, Old Rochester Regional School District, Pentucket Regional School District, Plymouth Public Schools, Quincy Public Schools, Somerville Public Schools, Springfield Public Schools, Stoughton Public Schools, Sudbury Public Schools, Tantasqua Regional School District, TEC Connections Academy, Wachusett Regional School District, Wakefield Public Schools, Waltham Public Schools, Watertown Public Schools, Wayland Public Schools, Wellesley Public Schools, Westford Public Schools, Weston Public Schools, Westwood Public Schools, Wilmington Public Schools, Winchester Public Schools, Woburn Public Schools, Worcester Public Schools.

Federal and state laws guarantee a free appropriate public education for eligible students with disabilities in the form of special education and related services from public school districts.

The key federal law is the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.  The federal implementing regulations that apply to children and students ages 3 through 21 can be found at 34 C.F.R. Part 300.

In Massachusetts, the special education law in found in Chapter 71B of the Massachusetts General Laws.  The state implementing regulations are at 603 CMR 28.00.

OneLaw attorneys represent clients in all stages of the special education process, from evaluation and eligibility to IEP development and school placement.  Our services include formal consultation, attendance at Team meetings, representation at the Bureau of Special Education Appeals and in court, filing complaints with state and federal agencies, and negotiating settlements with school districts.