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  • What is Special Education?

    • Special Education is schooling that has been specifically designed to meet the needs of a child with a disability.

    • Under both federal and state law, school districts must provide each student with a disability with free appropriate public education (FAPE).

  • Who is eligible for special education?
    • Children with a qualifying disability that need special education services in order to benefit from education are entitled to receive special education and related services. Eligible disabilities include:
      •  Intellectual impairment;
      • Sensory impairment
      • Communication impairment;
      • Neurological impairment;
      • Emotional impairment;
      • Physical impairment;
      • Autism;
      • Health impairment;
      • specific learning disability;
      • Developmental delay.

     

    • Children may be eligible for special education between the ages of three and twenty one, if they have not attained a high school diploma or its equivalent. 603 CMR 28.02; 34 C.F.R. Sec. 300.102(a)(3).
    • A child is not eligible for special education if the determining faction the child’s exceptional need is lack of appropriate instruction in reading, math, or limited English proficiency. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b), Regents Regulations Sec. 300.306(b).
    • A child is not eligible for special education just because they cannot follow the school’s discipline code or because they are “socially maladjusted”.
  • What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
    • Under federal and state law, school districts must provide each student with a disability with a free appropriate public education. FAPE means special education and related services that are:
      • Provided at public expense and without charge;
      • Meet appropriate standards;
      • Include preschool through secondary education;
      • Conform with an Individual Education Program.
        (IEP). Title 20 United States Code (U.S.C.) Sec. 1401(9); Title 34, Code of Federal Regulations (C.F.R.) Section (Sec.) 300.17.
      •  Special education should be provided in the least restrictive environment (LRE).
      •  LRE: to the extent appropriate, all students with disabilities should be educated with students who are not disabled. 34 C.F.R. Sec. 300.114.

     

  • In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
    • In addition to being required to provide a free appropriate public education, school districts are required to provide “ related services”.
    • Related services: services that allow a student to benefit from his/her special education program at no cost to the parents. 34 C.F.R. 300.34; 20 U.S.C. 1400 et seq.
    • Related services include:
      • Audiology;
      • Counseling services
      •  Early identification and assessment;
      • Interpreting services;
      • Medical services;
      • Occupational therapy;
      • Orientation and mobility services;
      • Parent counseling and training;
      • Physical therapy;
      • Psychological services;
      • Rehabilitation counseling;
      •  Recreational services;
      • School health services;
      •  Social work services;
      • Speech-language pathology services;
      • Transportation.

    34 C.F.R. 300.34; 603 CMR 28.02.

  • Who provides Special Education?
    • The state education agency and the local school district are both responsible for ensuring that appropriate special education services are delivered. 603 CMR 28.03(2); 20 U.S.C. Sec. 1413(a)(1); 20 U.S.C. Sec. 1412(a)(11); 34 C.F.R. Sec. 300.149.
  • Where should a child receive his/her special education and related services? What is a “least restrictive environment”?
    • Special education must be provided in the least restrictive environment.
    • Students with disabilities may be removed from the regular educational environment only when the child’s disability is such that it cannot be sufficiently supplemented by modifications and additional services. 20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114
    • Special education can be offered in:
      • Mainstream classroom;
      • Resource room;
      • At home;
      • In hospitals;
      • Residential programs.

     

    • The IEP team shall consider:
      • The identified needs of the student;
      • The types of services required;
      • Whether such services may be provided in a general education classroom with supplementary aids;
      • If the student shall be served in an in-district placement or an out-of-district placement
    • The IEP must also determine the specific placement according to the following requirements:
      • Placement shall be based on the IEP, including types of related services that will be provided to the child, the type of setting in which those services will be provided, the type of service providers, and the location at which the services are to be provided.
      • The placement selected by the IEP shall be least restrictive environment consistent with the needs of the students.
      • The school district shall ensure that students with disabilities are educated with students that do not have disabilities.
      • The placement decision made by the IEP team shall indicate the specific program setting in which services will be provided.
  • How is a child determined to be eligible for special education? Is there an assessment or evaluation?
    • Before referring a child for an evaluation, the principal of the child’s school shall ensure that all efforts have been made to meet the child’s needs within the regular education program. These efforts include:
      • Modifying the regular education program,
      • The curriculum,
      •  teaching strategies,
      • Reading instruction,
      • Environments,
      • The use of support services,
      • The use of consultative services,
      • Building-based student,
      • Teacher support,
      • Assistance teams to meets the child’s needs in the regular education classroom.
      • Note: Such efforts should not be a limitation or a condition to the right to refer a child for an evaluation.
      • M.G.L. c. 71B, §2
    • A parent or any person in a caregiving or professional positing concerned with the student’s development may refer the student for an initial evaluation.
    • Parental consent is needed to conduct and evaluation.
      • Upon parental consent, the evaluation will be conducted by a team within 30 days. The evaluation shall be adapted to:
      • The students age;
      • The suspected disability.

    603 CMR 28.04; M.G.L. c. 71B, §3.

    • If a parent disagrees with an initial evaluation or reevaluation completed by school district, the parent may request an independent educational evaluation at private expense at any time.
    • Parents may receive public funds to conduct an independent evaluation according to their household income. 603 CMR 28.04(5).
    • If the family is eligible to receive public funds they will receive money for 16 months after the completion of the evaluation with which the parent disagreed.
    • Within ten days from the time the school district receives the independent evaluation, the IEP team shall reconvene and consider the evaluation and whether a new or changed IEP is appropriate. M.G.L. c. 71B, §3; 603 CMR 28.04(5).

     

  • Once a child is identified as being eligible for special education, what are the next steps? What is an “IEP” (individualized Education Program)? Do parents have any say in the IEP?
    • Within 30 school working days after the receipt of parents written consent to an initial evaluation or reevaluation, the school district shall provide an evaluation. Within f45 school working days the IEP team must:
      • Meet to review the evaluation data;
      • Determine whether the student requires special education and if required develop an IEP;
      • Provide parents with two copies of the proposed IEP and proposed placement

    603 CMR 28.05

    • If the IEP team determines that the child is not eligible for special education, the school district must send a written explanation of the finding to the parents.
    • If the IEP team determines the child is eligible of special education, they will develop an Individualized Education Plan. The following individuals help create the IEP:
      • Parent;
      • Special education teacher;
      • Regular education teacher
      •  A district representative;
      • School administrator;
      • School psychologist;
      • Therapists;
      • Service providers;
      • The child, if appropriate.
    • The IEP must include:
      •  A description of the special education and related services that the student needs
      • Instructions to meet the needs of the individual student
      • Determination of whether the student is likely to require related services as an adult.
      • A daily duration of the student’s program. 603 CMR 28.05(4).
    • Within 45 school working days after the receipt of the parent’s written consent to an initial evaluation, the district shall provide the parents with two copies of the proposed placement along with the required notice.
    • Within 30days after the receiving the proposed IEP, the parent can:
      •  Accept or reject the IEP in whole or in part;
      • Request a meeting to discuss the rejected portions of the IEP
      • Accept an amended proposal
      • Accept or reject the proposed placement.
        603 CMR 28.05(7).
    • When a student with disabilities moves from one Massachusetts school district to another, the last IEP written by the old school district must be provided in the new school district until anew IEP is developed.

     

     

  • What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP)?
    • If a parent wishes to file a complaint it can do so through the Massachusetts Department of Education, which maintains a Problem Solving resolution system that provides for the investigation of complaints and the enforcement of compliance with the Special Education Regulation.

     

    • A parent or school district may request mediation or a hearing at any time on any matter concerning:
      • the eligibility;
      • evaluation;
      • Placement;
      • IEP;
      • provision of special education in accordance with state and federal law;
      • Procedural protections of state and federal law for students with disabilities.
  • What options does a parent have if s/he disagrees with the proposed IEP placement or services? What are the procedures for due process?
    • If a parent disagrees with any determination made by the school district, the parent can request a due process hearing.
      • Five days after receiving the written request for a hearing, the Bureau of Special Education Appeals shall notify the parties in writing of the name of the assigned hearing officer and a date for the hearing.
    • During the due process hearing, the student must remain in his/her current educational placement unless both parties agree otherwise.
      • A hearing officer may order a temporary change in placement for reasons consistent with federal law.
  • Can a special education student be disciplined?
    • A student with disabilities may be suspended for any one of the misbehaviors on the list of prohibited activities that applies to all students in the discipline code, even if the behavior is caused by the child’s disability.
    • Students with disabilities are subject to the same suspension rules than non-disabled students, except that the suspensions of students with disabilities cannot exceed 10 consecutive days without a manifestation determination review. 20 U.S.C. Sec. 1415(k)(1)(B).
      • Manifestation Determination Review: a meeting convened to determine whether the behavior of a student with disabilities is caused by his/ her disability.
    • Suspensions that last more than 10 consecutive days are considered “change of placement”. A school cannot change a student’s placement without parental consent.
    • A student with disabilities may be suspended for up to 45 days without a manifestation determination review, if he or she commits one of the following behaviors:
      • Carried a gun
      •  Is involved in drugs;
      • Presents a danger to himself and others.

    20 U.S.C. Sec 1415(k)(1)(G)

    • If after the Manifestation Determination Review the IEP determines that the behavior was caused by the students disability, the child cannot be expelled and a change of placement would require the consent of the parent
      •  The school must do a behavioral assessment for the assessment for the student or modify the student’s existing behavior plan to address the behavior.
    • If after the manifestation determination review, the IEP determines that the behavior was not caused by the students disability, the parents can challenge the determination by requesting a dure process hearing. 20 U.S.C. Sec. 1415(k)(1)(F); 34 C.F.R. Sec. 300.530(f).
    • Students with disabilities must continue to receive educational services during any period of suspension beyond 10 days and during any period of temporary placement and any period of expulsion. 20 U.S.C. Sec. 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R. Sec. 300.530(d)(1)