The Individuals with Disabilities Education Act (IDEA) of 2004 is the federal law ensuring services to students with disabilities. IDEA provides eligible students from ages three to 22 a free and appropriate public education. Assistance may include consultative or psychological services, transportation, speech or occupational therapy, and are provided at no cost to the student. Similar state protections are provided under Massachusetts General Law Chapter 71B. Associated federal regulations are at 34 C.F.R. 300 and 201, and state regulations are at 603 C.M.R. 28.00.
In Massachusetts, over eighty percent of the children involved in the busiest courts have unmet educational needs and nearly ninety percent have school discipline problems (Citizens for Juvenile Justice, Special Education Reform). Often behavior issues result from unmet educational needs. Identifying children who may be eligible for special education services based on their early school career is one more way to ensure their success.
Parents, youth serving professionals, and advocates need to be zealous in pushing for appropriate services at the first sign of academic difficulties. Special education services can be very expensive and school districts often have limited resources. Detecting and addressing educational needs early can reverse academic failure, reduce the need for future arduous interventions and ultimately bring a halt to a youth’s progression through the school-to-prison pipeline.
In order for a student to be evaluated for special education services, a parent, caregiver or youth-serving professional needs to request an evaluation referral. The request should be in writing, signed and dated, and copies should be retained by the parent. A student with these issues might benefit from an evaluation to determine whether he or she is eligible for special education or related services due to:
- a medical condition relating to the student’s physical, mental, or emotional health/development that may affect his or her ability to progress in school
- failure to make progress in school
- a history of behavioral issues and/or frequent disciplinary action
Special Education Timeline
Obtaining special services for an eligible student requires the cooperative involvement of both the school and parent/guardian. The initial request for an education made by a concerned party (e.g. a parent, teacher, mentor, etc.) should be make in writing to the school. Once the school receive consent for an evaluation, the following timeline is set in motion:
- Within 5 school days school district provide form to the parent/guardian requesting consent for special education evaluation.
- Once the school district receives the signed parental consent, they have 30 school days to complete the evaluations.
- Within 45 school days of receiving the signed consent the Team meeting is held to determine student eligibility, placement, and specifications of IEP. If student is found eligible, parents must be provided copies of the IEP within the same 45 day period.
- Parent must accept or reject the IEP in whole or in part within 30 school days of receiving the proposed IEP.
The Team is responsible for determining whether the student is eligible for special education services. IDEA requires that a Team include the following individuals, each with an equal voice:
- The parent(s) or guardian of the student
- The student (if he or she is 14 years of age or older)
- At least one regular education teacher
- At least one special education teacher/provider
- An individual who can interpret the instructional implications of evaluation results
- A representative from the district who:
- is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of individuals with special education needs
- is knowledgeable about the general education curriculum, and
- is knowledgeable about the availability of resources of the local educational agency
Advocacy Tip – Attending a team meeting. Team meetings can often be overwhelming to parents. Though they are an equal member of the education team parents can feel overruled by school staff hen considering services for the student. Advocates can attend meetings to provide support to parents and express their opinions regarding services.
At the initial Team meeting, the team leader facilitates the members of the Team to complete the following agenda items:
- Discuss concerns about the student
- Review the results of all evaluations and provide the parent/guardian with written reports of these results (if requested, parents can get copies of these reports at least two days prior to the team meeting)
- Determine whether, based on these results, the student has a qualifying disability
- Determine the student’s eligibility to receive special education and/or related services including quantity of services, type of accommodations, appropriate placement, and program location
Take Note – Interpreter Services – A school district is required to provide an interpreter at every Team meeting for non-English speaking parents and/or students. Additionally, all written documents such as the IEP and evaluation reports, must also be translated. If a parent cannot read or write, or is visually or hearing impaired, the school must accommodate those specific needs.
To find a child eligible for special education services, the Team must find that the child meets the following criteria:
- Has a qualifying disability (i.e., mental retardation, hearing impairment, speech or language impairment, visual impairment, emotional disturbance, orthopedic impairment, autism, traumatic brain injury, specific learning disability, or other health impairment)
- Is failing to progress in the general curriculum as a result of the disability
- Requires specialized instruction and related services in order to make progress in the general curriculum
Advocacy Tip – Out-of-School Provider Recommendations – Families working with outside providers such as therapists, social workers, or youth workers should encourage them to come to the Team meeting to provide their support and information to the Team. If our-of-school providers are not able to attend Team meetings, parents should request written recommendations from them to present to the Team.
The Individualized Education Plan (IEP)
If the student is found eligible for special education services, the Team will develop the Individualized Education Plan (IEP). Development of the IEP occurs at the initial eligibility determination meeting. Changes to the IEP can occur at any team meeting including mandated annual reviews, three year evaluation meetings, or any other time the team meets in its official capacity.
An Individualized Education Plan must include the following components:
- The student’s placement
- The student’s program location
- The present levels of academic achievement
- Measurable annual goals
- All services and accommodations the school will provide
Different IEP services provide unique services. Some placements will provide students with specialized instruction within a regular classroom, some will be substantially separate from the regular classroom, and others will be in specialized schools that primarily serve students with disabilities. Regardless of the name or type of placement proposed, understanding how the services will be provided in the placement and by whom is key to understanding whether the placement and services are appropriate for an individual student.
It is important to ensure that a parent understands and agrees with the type of setting and services that the school district is proposing to provide to the student. A parent should visit the proposed placement before agreeing to fully accept an IEP.
Special Education Service Continuum
Pull out services – Services administered to student outside the regular classroom, such as: counseling, speech and language therapy, or occupational/physical therapy.
Resource Room – Specialized instruction in one or more academic areas in a classroom of no more than 12 students, most commonly for English or math.
Separate Classrooms – Special instruction for all academic area in a classroom or no more than 12 students. Common classrooms include those focused on learning disabilities or behavioral problems.
Day School – School specifically focused on children with disabilities who need special support in all academic and co-curricular areas. These schools can be private or public.
Residential School – Privately run schools for the most disabled students who require 24-hour support in addition to specialized instruction and support in co-curricular areas.
Take Note – Student Inclusion – Under IDEA’s inclusion initiative, a student must be placed in the Least Restrictive Environment (LRE) that will allow the student to make effective progress. This means that, to the maximum extent appropriate, a student should be educated in a regular educational environment with children who do not have disabilities.
As soon as the school district has received the signed IEP, it is required to immediately implement all services and accommodations which have been accepted.
Rejecting the IEP, Full or in Part
The parent/guardian decision maker may:
- request another Team meeting to discuss the reasons for rejecting the IEP
- request a hearing/mediation with the Bureau of Special Education Appeals (BSEA)
A student continues to receive any accepted services and placement until new services or placement is agreed upon.
Take Note – Rejecting an IEP – Even if a parent accept the IEP, it can later be rejected. A parent might choose to to this if, for example, the student does not seem to be making process despite the services he or she is receiving. The parent can simply write a letter to the school withdrawing acceptance of the IEP stating the reasons why the IEP is being rejected in part or in full. When an IEP is rejected, the last agreed upon IEP stays in place until a new IEP is accepted. If a parent rejects an IEP they have previously accepted, the student’s placement and services will remain the same until the dispute is settled.
If dissatisfied with the school’s evaluations, the parent may request an independent evaluation conducted by a qualified professional of the parent’s choice. The request must be made within 16 months of the school’s evaluations. The school district may be required to cover part or all of the cost of this evaluation, depending on a family’s income level. However, publicly funded evaluations must meet state requirements for evaluator qualifications and follow set pay rates (603 CMR 28.04 (5)).
The testimony of the evaluator at a due process hearing may be necessary and families should take this into consideration when choosing an evaluator.
Advocacy Tip – Independent Evaluations – Families often do not know they have a right to request an independent evaluation or that the school district may be required to pay for it. Though independent evaluations can seem complicated because they are requested through the school, it is the parent’s responsibility to find an evaluator with the appropriate qualifications. It may be helpful to check with the district’s special education office, as many provide a list of previously approved evaluators.
Student Found Ineligible for Services
Parental consent should be requested and a reevaluation completed before a stoppage of any services. If a parent disagrees with the determination, the parent can appeal the decision to the Bureau of Special Education Appeals. Parents should ask for a written document stating the decision regarding ineligibility as well as the reasons why.
The Bureau of Special Education Appeals (BSEA)
The BSEA is an independent body and as of July, 1 2010 is a part of the Department of Administrative Law Appeals. It resolves disputes between school districts and students with disabilities regarding eligibility, evaluation, placement, IEP, provision of special education services pursuant to state and federal law, or procedural protections of state and federal law for students with disabilities. BSEA Hearing Rules
A decision of the BSEA is a final agency decision. Generally, the decision of the BSEA shall be immediately implemented. However, the aggrieved party may file a complaint for review of the hearing officer’s decision to state or federal district court. The review on appeal is governed by M.G.L. Chapter 30A, the Administrative Procedure Act.
A hearing at the BSEA is an administrative procedure before a hearing officer where a parent is not required to have an attorney. However, it is recommended that parents do seek counsel as school districts will almost always have an attorney.
Take Note – Hearing Requests – A school district cannot request a hearing to challenge a parent’s failure or refusal to an initial evaluation or initial placement of a student in a special education program.
A parent can request a hearing on any issue regarding the denial of a free appropriate public education pursuant to Section 504 of the Rehabilitation Act of 1973 and/or IDEA.
Dispute Resolution Options
Facilitated Team Meeting: The parties to an IEP meeting can agree that the presence of a neutral third party would assist them in successfully drafting an IEP.
Mediation: A meeting can be facilitated by a neutral individual who is trained in special education law and in methods of negotiation. The mediator helps the parent and school district talk about their disagreement and reach an agreement that both sides can accept.
Due Process Hearing: These meetings are conducted by a hearing officer. At the hearing, each party has the opportunity to present evidence (through documents and the testimony of witnesses) to support its position. Also, the parties have the right to cross-examine witnesses and to submit rebuttal evidence. Hearing officers enter binding decisions.
SpedEx: Available after a hearing request has been filed. The process uses an independent, neutral education SpedEx consultant jointly agreed-upon by the family and school. The consultant assists parties to determine which program the child needs to ensure a free and appropriate public education in the least restrictive environment. The consultant’s fee will be paid by the Department of Elementary and Secondary Education. Neither party is bound by the consultant’s recommendations.
Advisory Opinion: Available to parties who have requested a due process hearing. Each party has one hour to give a presentation of its case to a hearing officer, after which the hearing officer issues a written, nonbinding opinion within an hour of the close of the presentations. Parties may agree to make the resulting opinion binding .
Visit here for a full list of dispute resolution options.
Annual Review Meetings and Three-Year Reevaluations
A student’s special education Team must meet at least once a year to discuss the student’s progress, develop a new IEP, and consider the types of services, accommodations, and placement the student might benefit from. The parent must decide whether to accept, accept in part, or reject the new IEP. Although the Team must meet at least once a year, it can meet more frequently. A parent has the right to request a Team meeting at any time and the school district is required to accommodate a parent’s request, within reason.
At least every three years, or earlier if warranted, a school must request parental consent to complete a reevaluation. All evaluations initially completed should be included in the reevaluation.
Advocacy Tip – Following Up On a Meeting Request – Although a school must honor all requests for a Team meeting when call for by a parent, there is no mandated timeline they must follow. Advocates can support their clients in this situation by encouraging the parents to follow up about scheduling the meeting or by following up with the school themselves.
The Individuals with Disabilities Education Act requires that transition planning must occur as part of the IEP process beginning at age 14 (or younger if determined by the Team) to ensure the student’s goals and vision are taken into account. This may include preparation for post-secondary education, employment, vocational training, independent living, and/or other community experiences. Massachusetts has a planning process, the Chapter 688 Referral, which identifies the potential need for services from adult human services agencies for students with significant disabilities. The referral is made two years before graduation or two years before turning 22 years of age. Unlike special education, there is no guarantee adult services will be provided.
Age of Majority
In Massachusetts, when a student reaches 18 years of age he or she is deemed eligible to make decisions regarding his or her education, unless there has been a formal court action giving guardianship to another adult. A student can share this responsibility with or delegate it to another adult. A student and parent must be notified of all the rights and responsibilities of the age of majority at least one year before the student turns 18. Even after a student turns 18, a parent can still have access to a student’s records and continues to have the right to receive written notices.
Educational Decision Making Rights
IDEA requires states to protect the rights of students entitled to special education services who are in the custody of a state agency or whose parent or guardian cannot be identified or located. An important aspect of protecting a student is knowing who has the educational decision making rights. In Massachusetts, the Special Education Surrogate Parent Program (SESPP) was created to fulfill this role and the Department of Elementary and Secondary Education makes the assignments upon application. A special education decision-maker must meet these criteria:
- Be over 18 years of age
- Have appropriate skills and knowledge to make the decisions for the student
- Not be an employee of a state agency involved in the care or education of the specific student
- Not have a conflicting interest in the student
It is important to be clear who has the decision-making rights of the child. Parents do not lose their right to be a child’s decision maker because of inexperience or lack of knowledge. Log on to www.espprogram.org to read more on recruiting and training special education decision-makers in Massachusetts.
Section 504 of the Rehabilitation Act of 1973 is designed to protect people from discrimination on the basis of a disability in programs and activities, both public and private, that receive federal money. Some students with disabilities are able to make progress in school without the need for specialized instruction and related services but require supportive services or accommodations in order to participate fully. Like IDEA, Section 504 mandates that a student receive a free appropriate public education. In 2008, Congress passed amendments to the Americans with Disabilities Act (ADA) which dramatically expanded eligibility of K-12 students under 504.
A student is eligible for protection under 504 if he or she meets one of the following requirements:
- Has a physical or mental impairment that substantially limits one or more major life activities (e.g., walking, thinking, concentrating, sleeping, eating, seeing, hearing, speaking, breathing, learning, reading, writing, performing math calculations, working, caring for oneself, and/or performing manual tasks)
- Has a record or records of such an impairment
- Is regarded as having such an impairment
A student is evaluated by the school in order to determine whether he or she is eligible for a 504 plan and to develop a plan if found eligible. In contrast with IDEA, the school is only required to notify the parent of the evaluation, but is not required to receive parental consent. However, it is recommended that schools seek consent.
The Massachusetts Department of Elementary and Secondary Education has more information on 504 plans on its website.