There are two main special education laws that govern the rights of students with special needs in Massachusetts. The first law is a federal law called the Individuals with Disabilities Education Act (IDEA). The second law is a state law referred to as Chapter 71B. Collectively these two laws provide various protections for students with disabilities. Parents should be aware that there are also various civil rights statutes that provide additional protection for students (such as Section 504 and the Americans with Disabilities Act), however, only the IDEA and Chapter 71B will be discussed in detail below.
Under the IDEA and Chapter 71B, school districts in Massachusetts are required to ensure that all students with disabilities receive a “free appropriate public education” (FAPE). In order to meet this obligation, school districts are required to do the following:
- Child Find
- Qualifying Disabilities
- Initial Team Meeting and Eligibility Determination
- Developing an IEP
- Parental Response to the Proposed IEP
- FAPE, Effective Progress and the Least Restrictive Environment
- Re-evaluations and Revising IEPs
School districts are required to identify all students between the ages of 3 and 22, who reside within the district and who have – or may have – a disability. This obligation is sometimes referred to as Child Find. A school district’s obligation to identify all students residing in the district who are suspected of having a disability is very broad, and even applies to students who are not enrolled in the public schools.
After a school district identifies a child as potentially having a disability, it must then request parental permission to conduct evaluations. Once a parent consents to the testing, the school district will evaluate the student to determine whether or not the student has an impairment or disability. School districts in Massachusetts have 30 school days from when they receive parental consent to complete their evaluations, and 45 school days to convene the Team to discuss the testing results.
Under the IDEA and Chapter 71B, the term “disability” is broadly defined to include:
- autism spectrum disorders
- developmental delays
- intellectual impairments
- sensory impairments
- emotional impairments
- neurological impairments
- communication impairments
- physical impairments
- health impairments
- specific learning disabilities
Parents, teachers, evaluators, and other school staff will convene for an initial Team meeting to discuss the results of the school district’s evaluations. At this initial meeting, the Team will determine whether the student is eligible to receive special education services. In Massachusetts, a student may be eligible for special education if they:
- are between 3 and 21 years of age;
- have not received a high school diploma;
- have been identified as having a disability as defined under the law; and
- as a result of the disability is “unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service.”
If the Team agrees that a child is eligible for special education, the Team will then develop an Individualized Education Plan (“IEP”). The IEP is essentially a written agreement between a school district and a family that sets forth the school district’s proposed plan to ensure that the student will receive an appropriate education. An IEP must include, among other things, a statement of the student’s present levels of academic achievement and functional performance, identify measurable academic and non-academic goals for the student, describe how the student’s progress will be measured during the year, identify all services and accommodations that will be provided to the student, and describe any transition services the student will be receiving if they are 14 years or older. Parents have a right to participate in the process of developing their child’s IEP. A school district must provide parents with two copies of the final proposed IEP immediately after the Team meeting in which it was developed.
Parents should never feel obligated to sign an IEP at a Team meeting. In fact, parents have 30 calendar days to respond to an IEP that has been formally proposed by the school district. Parents can choose to fully accept an IEP, partially accept an IEP, or fully reject an IEP. If parents do not respond to an IEP at all within 30 calendar days, then the IEP is automatically deemed to be rejected. Parents should also be aware that they are allowed to revoke their consent at any time.
How can a parent know if a proposed IEP will offer their child a FAPE? The answer to this question will be highly fact specific for each child, but generally parents should consider whether the proposed IEP will allow the student to make “effective progress.” In Massachusetts, this is defined as making:
…documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.
Stated another way, effective progress means that a student should be making progress that is generally commensurate with their cognitive potential. However, the law is clear that school districts are not required to ensure that a student with an IEP receives an optimal education nor is a school district required to maximize a student’s progress.
School districts are also required to place students with special needs in the “least restrictive environment” (LRE) when offering an IEP. Massachusetts law defines the LRE as “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.” In other words, the LRE is the placement that is the most inclusive (i.e., the setting that will allow a student with special needs the most access to their typically developing peers in a public school setting).
School districts must re-evaluate students who have been identified as being eligible for special education at least once every three years, or sooner if requested by a parent. IEPs must be reviewed and revised by the Team at least once per year, or sooner if needed.
Parents can always request that their child’s IEP Team reconvene if they have concerns about their child’s progress. School districts also must reconvene the IEP Team within 10 school days after receiving an independent evaluation in order to determine whether the IEP needs to be changed based on the new report’s findings.
Unfortunately parents and school districts do not always agree about the types of services or placements special education students may need in order to receive a FAPE. Parents may receive a proposed IEP they feel is inadequate, worry that it remains essentially unchanged from the previous year, or disagree about the kind of program that the school district is offering.
In Massachusetts, there is a state agency called the Bureau of Special Education Appeals (BSEA). When parents disagree with a proposed IEP, and their disagreement with the school district cannot be resolved through the Team process, parents can ask the BSEA to schedule a mediation with their school district, or they can file a request for a due process hearing before a BSEA hearing officer.
It is often a good idea to consult with an attorney before proceeding to the BSEA. If you have concerns about your child’s IEP, contact Moor Law to learn more about your child’s rights and your legal options.