By Daniel T.S. Heffernan, Esq.
Obtaining appropriate educational services for a child with special needs is a significant issue for myriad families in Massachusetts. In Massachusetts, there are approximately 200,000 students currently eligible for special education. While the vast majority of these students receive special education services within public school settings, approximately 7,000 of these students receive their special education in private special education schools. Knowing the basic law about eligibility, the types of services available, and a student’s right to special education is essential for family law practitioners.
Two federal laws, the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and one Massachusetts law, M.G.L. c.71B (“Chapter 766”), provide the major statutory framework for special education law in Massachusetts. Under these statutes, eligible students with disabilities are entitled to a wide array of services between age three and the earlier of their graduation from high school or their twenty-second birthday.
IDEA provides that each eligible student must receive a “free and appropriate public education” (FAPE). FAPE entitles a student to special education and related services that are provided at public expense, under public supervision, and that meet the state’s education standards. This education must be individualized to address the unique needs of the child. Services cannot be based solely on the type of disability, such as tracking all middle school children with autism into a particular classroom. Eligible students have an entitlement to appropriate services, which cannot be made dependent upon such factors as the cost of services, caseloads or schedules of service providers, openings in programs or classrooms, administrative convenience, or conflicting school district policies or procedures.
To be eligible for special education, a child must have a disability, not be making effective progress in regular education because of the disability, and require specially designed instruction or related services to access the general education curriculum.
A child’s disability must fit into enumerated disability categories (see 20 U.S.C. §1401(3); 34 C.F.R. §300.8; 603 C.M.R. §28.02(7)) or constitute a “specific learning disability.” “Effective progress” is often difficult to quantify, but includes meaningful progress in acquiring key skills, including social and emotional skills, within the general education program.
A parent or any person in a care giving or professional position may refer a child for initial evaluation for special education services. Upon receiving such a referral, the school district must obtain parental consent for the evaluation and afford the parent an opportunity to have input into the evaluations. Once the consent is received, the school district must conduct the evaluations. The evaluation must assess all areas of suspected disability and the child’s educational history, and can include health or psychological assessments, as well as a home assessment. For students already eligible for special education, reevaluations must occur regularly and at least every three years. 20 U.S.C. §1414(a)(2)(B). In addition, the school district must review an eligible student’s individualized education plan (IEP) every year. Parents dissatisfied with a district’s evaluation have the right to request an independent evaluation, which may be funded by the school district. 20 U.S.C. §1415(b)(1); 34 C.F.R. §300.502. Parents always retain the right to have their children privately evaluated and have the school district meet to review the reports of those evaluations. In addition, parents and, by extension, their experts, have the right to a reasonable observation of any program proposed for their child. See M.G.L. ch. 71B, §3. In disputes with school districts over eligibility and programming, independent evaluators are essential. Litigation of these disputes often comes down to a “battle of the experts” and it is therefore essential for the parents to have qualified independent experts with well-founded opinions.
If the child is found eligible for special education services, a “team” must meet to decide programming issues for the student. The team includes the parents, at least one regular education teacher if the child is in regular education, at least one special education teacher, a district representative with knowledge of district curriculum and the authority to commit district resources, someone to interpret the tests, the student if appropriate, and other “knowledgeable” individuals.
This team prepares the IEP, an extensive document with many components, including: parent vision statement and concerns; the child’s current levels of performance; a description of the services and accommodations the child requires; the delineation of measurable goals in myriad potential areas; a determination as to whether the student will take statewide assessments with or without accommodations; transportation services; and, a service delivery grid detailing services to be provided. These services can include such things as tutoring or specialized instruction, the provision of an aide, speech language services, counseling, occupational therapy, home services, speech therapy, and social skills training.
The IEP also lists the placement where the proposed services will be delivered. Students have a right to be educated in the “least restrictive environment” (LRE), which means that to the maximum extent appropriate, students are to be educated with their non-disabled peers. There is a continuum of possible placements ranging from full inclusion in the general education setting, to some services being delivered outside the general education setting, to most of the services being delivered in a substantially separate class, to a separate public or private school and finally to a residential placement where the only peers a student interacts with are students with special needs.
There are numerous private special education schools that are “approved” by the Massachusetts Department of Early and Secondary Education (DESE). In addition to the approximately two hundred approved schools located in Massachusetts, there are approximately sixty out-of-state private special education schools that are approved by DESE. There are also many “non-approved” private special education schools. Private special education schools typically focus on educating students with a particular disability, such as dyslexia, autism spectrum disorders, mental health challenges, and chronic medical conditions. They can range in cost from $35,000 to over $350,000 per year.
In an exception to the basic tenet of contract law that a contract does only exists when there is agreement on all material terms, an IEP allows for a “line item veto” approach. Parents may accept or reject the entire proposed IEP or reject certain parts and accept others. This is so a dispute about the provision of some aspect of the IEP does not hold up the provision of other services to the student. In Massachusetts, 8,860 IEPs were rejected in whole or in part in fiscal year 2013.
If the school district and parents cannot resolve the dispute on their own, both parties have access to two dispute resolution avenues. The first is mediation. The Massachusetts Bureau of Special Education Appeals (BSEA) offers mediators free to the parties. Neither side can be compelled to mediate and mediators have no authority to rule for or against either party. In Massachusetts, 818 mediations occurred in fiscal year 2013, resulting in the parties coming to written agreement 86.2% of the time.
The second dispute resolution avenue is litigation at the BSEA, which has exclusive original jurisdiction over any dispute relating to the provision of special education in Massachusetts. The BSEA is a specialized court – it only hears disputes regarding special education. Parents initiate most hearing requests, although school districts do also. Upon the receipt of a hearing request, the BSEA assigns one of its seven hearing officers to the matter and sets a hearing date within thirty-five days of the hearing request. While this “automatic” date is often postponed, matters move lightning quick to hearing in the BSEA as compared to superior or federal court. The BSEA has its own hearing rules and hearings are governed by the Massachusetts formal rules of administrative practice. 801 C.M.R. §§ 1.01, 1.03. The burden of proof is on the party seeking relief. After the completion of the hearing, the hearing officer issues a written decision that is typically quite extensive and detailed. While hearing officers do not have authority to order money damages, they can order an extensive array of services and programmatic changes, reimbursement to the parents for the cost of unilaterally placing their child in a private placement, or placement in a particular school. 552 hearing requests were filed in the BSEA in fiscal year 2013. Pre-hearing settlements of these disputes often involve some type of “cost share” where the district and parents (and sometimes a state agency such as the Department of Mental Health or Department of Children and Families) share the cost of the tuition, responsibility for providing transportation, or other services. 30 matters went all the way through hearing and resulted in written decisions by the hearing officers in fiscal year 2013.
One “hot” area of special education involves services and planning surrounding a student’s transition from his post-secondary education life. When IDEA was reauthorized in 2004, it required that transition planning begin when an eligible student turns fourteen. Higher expectations for students with special needs, the limited funding and lack of entitlement for adult services, and a boom in private and public transition programs are factors that have made transition a significant area. Since the receipt of a high school diploma terminates the school district’s obligation to provide services, parents sometimes refuse these diplomas, claiming that a student still requires services, such as independent living skills, from the school district.
Special Considerations for Children of Divorced Parents
When divorced parents reside in separate towns, the issue of what each town’s fiscal and programmatic responsibilities are can be significant. Pursuant to 603 C.M.R. § 28.10, when a student who requires an in-district placement to implement his or her IEP lives with both of his or her parents during the school year, irrespective of school vacation periods, and the parents live in two different Massachusetts school districts, the school district where the student is enrolled shall be responsible for fulfilling the IEP. Having the resources of two school districts available can be significant where an expensive private school placement is sought. When a student who requires an out-of-district placement to implement his or her IEP lives with both of his or her parents during the school year, irrespective of school vacation periods, and the parents live in two different Massachusetts school districts, the school districts where the parents reside shall be equally responsible for funding the outside placement. While an exact 50/50 living arrangement is not required, if the child spends significant time with both parents during the week such that one would reasonably say they lived with both parents, the districts must evenly split the cost of the outside placement.
While the vast majority of divorced parents I have represented are able to be on the same page about their child’s education, I offer two suggestions regarding resolving significant disputes between them in the area of their child’s special education. One is to have them solicit the advice of an independent expert who has worked with the student and has the trust of the parents. Second, if need be, the divorce agreement or probate court should designate which parent has authority in this area.
Since special education impacts so many families, having this overview of special education law should help family law practitioners better represent their clients.
Daniel T.S. Heffernan, Esq. is a partner at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts. He concentrates his practice in representing families in special education, civil rights and personal injury matters. Dan has been designated as Super Lawyer in the area of special education law. From 1995 to 2007, Dan served as president of the board of directors of The Federation for Children with Special Needs. In 2002 Dan and his wife, Julie, received the Dr. Allen C. Crocker Award of Excellence from the Massachusetts Down Syndrome Congress. He is a member of the MDSC Education Task Force. He writes and lectures frequently on special education law and advocacy. Dan is a cum laude graduate of Harvard Law School. Dan can be reached at firstname.lastname@example.org.