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SPECIAL EDUCATION IN MASSACHUSETTS
Under state and federal law, children with disabilities
that affect their educational progress are entitled to an academic
program individually tailored to meet their unique needs. But, they
are only eligible for services if they require specially designed
instruction in order to make effective progress and/or if they need
related services in order to access the general curriculum. Special
education involves federal and state law. Massachusetts' laws governing
this entitlement, often referred to as "Chapter 766",
can be found in the Massachusetts General Laws Chapter 71B; the
related regulations are found in the Code of Massachusetts Regulations,
Chapter 28 of title 603. The major federal law governing special
education is the Individuals with Disabilities Education Act, found
at Title 42 of the United States Code, part 1400; the federal regulations
are at Title 34 of the Code of Federal Regulations, Part 300. The
following is a guide to the rights that are afforded to children
with disabilities who are entitled to special education, and some
important terms that should help you to understand special education
in Massachusetts. This packet of information is intended to be a
guide only; you should consult an attorney for specific information
concerning your child's case.
WHEN IS A STUDENT ELIGIBLE FOR SPECIAL EDUCATION
SERVICES?
A student is eligible for special education or related services,
if
1. the child is aged 3 to 21, and
2. the child has a disability consisting of one or more of the following
impairments: autism
developmental delay
intellectual impairment
sensory impairment (hearing, vision)
neurological impairment
emotional impairment
communication impairment
physical impairment
health impairment (includes ADD/ADHD)
specific learning disability
and
3. as a result of the disability, the child is unable to make effective
progress in the general education program, and
4. the child requires specially designed instruction in order to
make effective pro gress and/or
the child requires related services in order to benefit from special
education or in order to access the general curriculum.
WHO CAN REFER A STUDENT FOR A SPECIAL EDUCATION EVALUATION?
Schools have a duty to identify and assess the needs of children
who may be eligible for special education services. However, a student
may be referred for a special education evaluation by a parent,
any person in a caregiving position, or any person in a professional
position who is working with that child. This can be a doctor, a
teacher, a day care provider, a coach, etc.
WHEN MUST THE EVALUATIONS BE COMPLETED AND
DISCUSSED?
If a student is referred for a special education evaluation, a school
district must send parents a form requesting their permission to
test their child within 5 days of receiving the referral. The parents
must sign and return the consent forms to the school district in
order for the testing to begin. After receiving parental consent
the district must proceed with testing. The school district must
consult with parents about the content of the testing and the evaluators
being used.
The school district must complete its assessments
within 30 school working days of receiving parental permission to
complete the testing. Once the school's tests are complete, a TEAM
meeting must be scheduled. The TEAM meeting must be scheduled within
45 school working days of receiving parent's permission to complete
testing. The parents can and should request reports or summaries
of the results of the tests in advance of the TEAM meeting. After
a
parental request is made, the school district must make copies of
the reports of testing available to parents 2 days before the TEAM
meeting.
WHAT KIND OF TESTING MUST THE SCHOOL DISTRICT
PERFORM?
The school must assess a child in all areas related to their suspected
disability(ies), and must provide the following tests:
? an educational assessment by a representative
of the school district
? additional assessments in all areas related to the suspected disability
(for example, speech and language, physical therapy, occupational
therapy)
Parents also have the right to request, or a
school district may recommend any of the following assessments:
a psychological assessment, a health assessment, a home assessment,
an assessment by a classroom teacher, a medical assessment by a
physician, a Braille assessment, and other assessments which may
be required. Parents should carefully review the consent forms that
are sent to them, and in consultation with any of their child's
care-givers, add to the form any assessments that they believe may
help clarify their child's disability. (In the past, state regulations
required school automatically to complete some of these assessments;
this is no longer the case under the State regulations. *State law,
however, requires that the school districts complete all of the
above-assessments. Thus, if a Parent would like these assessments
completed as part of a child's evaluation, parents should request
them and the school district should, by law, perform these assessments.)
Some parents may also wish to request early intervention assessments
for children age 3 and younger, or functional behavior assessments
for children whose behavior is interfering with their learning in
school or at home.
WHAT IF THE PARENT DISAGREES WITH THE RESULTS
OF THE SCHOOL'S
ASSESSMENTS?
If a parent disagrees with all or part of the school district's
assessments, the parent has the right to request an independent
evaluation at school committee expense. The evaluation can be completed
by a qualified professional whom the parent chooses, but the professional
must agree to get paid at a rate that is set by the state. In addition,
the parent is only entitled to independent evaluations in areas
which the school district tested (e.g., school completes speech
and language evaluation, parent disagrees with results, parent has
right to independent speech and language evaluation.) When seeking
an independent evaluation at school committee expense, a parent
can proceed either under state or federal law. Parents must share
the results of a publicly funded evaluation with the school district.
Once an independent evaluation is completed, a new TEAM meeting
should be held to discuss the results.
Independent Evaluation Rights Under Massachusetts Law
Under Massachusetts law, parents whose children are eligible for
free or reduced cost lunch are entitled to an independent evaluation
that is fully funded by the school district. If child is not eligible
for free or reduced cost lunch, parents may still be able to get
an independent evaluation at school committee expense, however they
must provide the school district with documentation of their income.
Once provided with this information, the school district must determine
whether the family is eligible for either total or partial funding
of an independent evaluation under a sliding scale. School districts
must keep family financial information confidential, and must return
all documentation to families. The district must respond within
five days to the parent's request, either by seeking income information
from the family, if applicable, or agreeing to fund the evaluation.
The parent must request an independent evaluation within 16 months
of the date of the evaluation with which the parent disagrees. Again,
the professional the parent chooses to complete the independent
evaluation must agree to get paid at a rate that is set by the state.
Independent Evaluation Rights Under Federal Law
Parents can also request an independent evaluation under federal
law. Under federal law, within five days of receiving a request
for an independent evaluation, a school district must take action
by either 1) agreeing to pay for the evaluation; or 2) filing for
a hearing at the Bureau of Special Education Appeals (BSEA) to show
that the district should not have to pay for an independent evaluation
because its evaluation was both comprehensive and appropriate. Unless
the BSEA finds that the district's evaluation was comprehensive
and appropriate, the district must pay for the evaluation. For families
that do not qualify for a publicly funded evaluation under Massachusetts
law, it may be worthwhile to proceed under federal law.
Independent Evaluations at Private Expense
A parent can always get an independent evaluation at private expense,
or through a parent's private health insurance. If a parent gets
an independent evaluation at private expense, the parent generally
can choose whether or not to share results with the school district.
HOW OFTEN MUST A SPECIAL EDUCATION CHILD BE
RE-EVALUATED?
Once a child is identified as a special education student, a re-evaluation
should be completed every three years, or sooner if necessary. Parents
(and teachers) can, however, request a re-evaluation at any time,
or a TEAM meeting at any time. In addition, a re-evaluation can
be completed whenever the TEAM determines that it is necessary to
determine whether the child continues to be eligible for special
education services, to determine what the child's present levels
of performance and educational needs, to determine whether the child
has a continuing need for special education and related services,
and/or to determine whether changes to special education and related
services are necessary to meet IEP goals or to progress in the general
curriculum. In addition, before terminating special education services,
a re-evaluation must be completed.
If a child is not identified as a special education
student, the school district must seek consent of a parent for a
child to be re-evaluated if another referral for special education
services is made. Thus, if the parent, at a later date has new concerns
regarding the child's progress or behavior, the parent can ask for
another set of assessments.
WHAT IS A SPECIAL EDUCATION TEAM?
A TEAM is a group of individuals and professionals who work with
and who know the student, and who are responsible for developing,
revising and reviewing the child's individualized education plan
(IEP). Every child who is evaluated for special education services
and who is a special education student has a TEAM of people who
must determine whether the student is eligible for services and
if so, what services should be provided as part of the student's
individualized education plan (IEP).
By law, the TEAM must be comprised of the following
people:
" the parent(s)
" at least one regular education teacher
" at least one special education teacher or service provider
" a school official with the authority to commit resources
" a professional who is qualified to interpret and explain
test results
" a representative of any agencies that may be responsible
for transition
services
" the student, if age 14 or over, and
" any other person(s) the parent or school district wishes
to invite.
A TEAM meeting cannot be held without a parent/guardian.
Once a child is 14, s/he has a right to be present at a TEAM meeting,
although s/he is not required to attend. The parent or child can
invite other people, including advocates, attorneys, outside psychologists,
doctors, counselors or other individuals who work with the child
or family.
WHAT HAPPENS AT A TEAM MEETING?
At an initial TEAM meeting and at every re-evaluation TEAM meeting
thereafter, the results of any assessments should be discussed.
The TEAM, as a group, determines whether a child has a disability,
whether the child is making progress, and whether the child needs
special education, that is, specially designed instruction and/or
related services.
Once the TEAM determines that a child needs special
education, that child has the right to a Free Appropriate Public
Education in the Least Restrictive Environment. The right to a Free
Appropriate Public Education generally means that children who have
disabilities, including children who have been suspended or expelled
from school, have the right to be educated at public expense, in
a manner appropriate to meet their unique needs. Least Restrictive
Environment refers to the right of students with disabilities to
be educated as much as possible with children who do not have disabilities.
At the TEAM meeting, the TEAM should decide what,
if any, special education needs the child has, whether the child
needs any related services in order to benefit from special education
or access the general curriculum, and what modifications must be
made to the child's regular school curriculum and/or accommodations
must be made to allow the child to access the general curriculum.
If the TEAM decides that the child needs special education services,
any specialized instruction and/or related services should be incorporated
into an Individualized Educational Plan (IEP) - a document that
details the child's educational needs and the school's plan to meet
those needs. The TEAM develops this IEP at the TEAM meeting and
the TEAM decides what services go into the IEP. All TEAM members
have the right to provide input.
The TEAM also decides the appropriate placement
for the child, and how restrictive that placement should be. This
could be placement in one of any number of settings, for example,
placement in a regular education classroom with aids and supports,
placement in a resource room in a public school, placement in a
private day school or placement in a residential school. It is important
to remember that placement is a TEAM decision and depends on the
unique needs of the student. In addition, the TEAM must also consider
other special factors, including behavioral interventions and strategies
if the child's behavior impedes the child's learning or that of
others, the language needs of children with limited English proficiency,
the possible need for Braille in cases where a child is visually
impaired, the communication needs of a child, including the communication
needs of a child who is hearing impaired, and the need for assistive
technology devices and services.
Once the TEAM determines that a student needs
special education and/or related services, a TEAM meeting should
be held at least every year to review the child's IEP and progress.
WHAT HAPPENS AFTER THE TEAM MEETING?
Immediately following the development of the IEP, and within 45
school working days of receiving consent from the parent to evaluate
the student, the school district must provide the parent with 2
copies of the IEP. At times, at or after a TEAM meeting, a parent
requests more or different services than school personnel feel the
child needs. After being presented with the IEP, the parent has
30 days to make a decision about it. The parent has the right to
accept the services offered by the school, or to request a greater
or lesser amount of services. If the parent agrees with the services
proposed by the school, the parent may accept the services as offered
by signing the IEP and marking the "accept" option on
the IEP. Remember, the parent has 30 days to make the decision,
and may want to consult with other professionals such as therapists,
doctors, or counselors before making the decision. If the parent
disagrees with the services that are proposed in the IEP, there
are a number of options, including:
? The parent may reject the IEP in full. If the IEP is rejected
in full, the child will continue to receive the last agreed upon
special education services. Because school districts must have parental
consent before the initial provision of special education and related
services, if this is the first IEP provided to the child, the child
will not receive any special education or related services that
may be called for in the IEP.
? If the parent disagrees with the school's evaluations,
the parent may postpone a decision on the IEP and request an independent
evaluation. Until the independent evaluation is completed and another
TEAM meeting is held, the child will receive the services detailed
in the last agreed upon IEP. Again, because school districts must
have parental consent before the initial provision of special education
and related services, if this is the first IEP, the child will not
receive any special education or related services that may be called
for in the IEP.
? The parent may reject the IEP in part. The
rejected services will not be provided, but any services which are
not specifically rejected will be delivered to the child. In addition,
parents can assert Stay-put with respect to changes in the IEP.
(See below.)
IF THE PARENT REJECTS THE IEP, WHAT PROGRAM
SHOULD THE CHILD HAVE?
"Stay Put" is another right afforded to children who have
IEPs, or who are eligible for special education services. "Stay
Put" is the student's right to stay in the last educational
placement that the parent and the school agreed upon, at least until
a dispute over a new proposed educational placement is resolved,
unless the parents and the school district agree otherwise.
For example, if a student is receiving speech
and language therapy two times per week, the school may propose
an IEP which reduces the speech and language services to once per
week. If the parent does not agree with this reduction, the parent
may reject that portion of the IEP and the child should, under his
or her right to "Stay Put," continue to receive speech
and language two times per week until the parent and school can
agree upon the amount of services, or until a hearing officer resolves
the dispute. This can apply to individual services or to an entire
IEP. "Stay Put" guarantees that the child remains in his
or her last agreed upon educational placement until a new Individualized
Educational Plan is agreed upon or ordered.
HOW DO THE PARENTS AND SCHOOL RESOLVE A DISAGREEMENT OVER AN IEP?
If a parent rejects an IEP in full or in part, the school district
should send a notice of the disagreement to the Department of Education.
The DOE should then notify the parents of their rights and how they
might be able to resolve the disagreement. Generally, if the parent
and school cannot agree on services for the child, the parent or
school district may request either mediation or a hearing at the
Bureau of Special Education Appeals (BSEA). The BSEA is an administrative
division of the Massachusetts Department of Education that resolves
disputes between parents and school districts over special education
issues. (See referral information at the end of this packet.) Again,
until a new placement is ordered or agreed upon, the child should
"Stay Put" in the last agreed upon educational placement.
As a practical matter, prior to considering a
hearing at the Bureau of Special Education Appeals, the parent should
have some evidence that the child needs the services the parent
desires. For example, if a parent feels that a child can only learn
to read if she has one-to-one reading instruction, there should
be some support for this position in addition to the parent's belief.
That support could be the results of an independent evaluation,
the recommendation of a reading specialist, the results of the school's
evaluation, or other evidence. Both the hearing and mediation processes
are intended to be accessible to families without legal representation.
The hearing process is more adversarial and formal than the mediation
process. At a hearing, similar to a court trial, the parents have
a right to present documents and witnesses in support of their position.
Most importantly, special education is an entitlement.
Children with disabilities in Massachusetts who are eligible for
special education are guaranteed educational services which will
provide for them a free and appropriate public education. Enclosed
are some sample letters and a request for hearing form that may
be helpful in negotiating the special education process in Massachusetts.
Best of luck in obtaining appropriate services
for your child!!
ADDITIONAL RESOURCES FOR SPECIAL EDUCATION
The following is a list of further resources
in special education. While the Children's Law Center is aware that
some of the following list of groups do special education work,
the decision to seek representation is an individual one. The Children's
Law Center does not specifically recommend any of the following
resources, and cannot guarantee whether these agencies will provide
you with assistance.
Disability Law Center, Inc. Mass. Advocacy Center
11 Beacon Street, Suite 925 100 Boylston Street
Boston, MA 02108 Boston, MA 02116
(617) 723-8455 (617) 357-8431
Federation for Children with Special Needs Department
of Education
1135 Tremont Street, Suite 420 Problem Resolution System
Boston, MA 02120 350 Main Street
(617) 236-7210 (ph) Malden, MA 02148
(800) 331-0688 (in MA) (781) 338-3737 (ph)
(617) 572-2094 (fax) (781) 338-3394 (fax)
TTY:
N.E.T. Relay 1-800-439-2370
Bureau of Special Education Appeals
350 Main Street
Malden, MA 02148
(781) 388-3300
Massachusetts Bar Association
Lawyer Referral Service
1-800-392-6164
Please also consider calling your local legal services organization.
Some legal services organizations provide representation in the
area of special education.
By law, each school district is required to have a Parent Advisory
Council (PAC). These organizations are generally made up of parents
who have disabled children in the local school district. For this
reason many PACs can be a wealth of information about the local
district, local advocates, and administrators. Please call your
district's administration building for information on how to contact
your local PAC.
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