Special education isn't a privilege. In the United States, all students with disabilities have the right to not only an education but also the special education services they require to benefit from that education.
If and when a school deprives a student of their right to special education services, families do not have to accept that lack of support. Whether a school denies that a student has a qualifying disability or fails to implement a student's IEP or 504 Plan, when a school fails in its duty to a student, that school can and should be held accountable.
The Education Law Team at the Lento Law Firm assists families in Massachusetts and nationwide with special education issues. We focus on collaborative solutions and help our clients understand their options and the best way to proceed, given their unique circumstances. Tell us more about your situation at 888-535-3686 or with this form.
What is Special Education?
Special education is the umbrella term for an array of services and support. Worcester Public Schools highlights that special education is:
- Specialized, individualized instruction
- Intended to meet the unique needs of eligible students eligible for services
- For students who have educational and/or social-emotional disabilities that affect their access to the curriculum
The Worcester definition highlights that, ideally, special education is unique to the student. Two students with the same disability may require entirely different support and accommodations. In other words, special education should focus on the student rather than on a student's disability.
School districts cannot charge families for special education services. All services must be provided at no cost to families, even if a child is not enrolled in their local public school.
One misconception about special education is that it means a student is stupid or unable to succeed in school. Requiring special education has no relationship to intelligence or ability to succeed in school. Research indicates the opposite is true, and students with disabilities are more likely to qualify as intellectually gifted than their nondisabled peers. Special education simply means a student learns differently than the standard curriculum.
Federal Laws
Three federal laws, The Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (IDEA), create the foundation for disability rights in the United States. The underlying purpose of all three laws is not only to protect individuals with disabilities but also to encourage and make possible their participation in their local communities and daily life.
The ADA covers all individuals in the United States who have a disability and any institution open to the public. This includes private schools.
Section 504 applies to all organizations that receive federal funds. It protects students both in the classroom and in extracurricular activities and school events. Both the ADA and Section 504 bar disability-based discrimination and provide rights to individuals with disabilities.
IDEA is the most limited of the three laws. The major parts of the law:
- It applies to K-12 students and any child under the age of 21 who has not graduated from high school.
- All public schools must follow IDEA.
- Schools must provide special education services at no cost to all children within their boundaries, even if that student is not currently enrolled in their local public school.
- IDEA requires that all schools have a Child Find process, which means locating, identifying, and assessing all babies, toddlers, children, and teenagers who may have a disability
- Eligible students must have an Individualized Education Program (IEP).
What is an IEP?
IEPs are written documents that schools and families work together to draft. These documents list what special education services and accommodations a school must provide to a student. Once agreed upon, IEPs are legally binding.
Under Section 504, the counterpart to the IEP is a 504 Plan.
Massachusetts IEP Improvement Project
Beginning in the 2023-2024 school year, Massachusetts unveiled a new IEP plan that goes above and beyond federal requirements. The goal of this project is to better tailor IEPs to the individual student. Rather than focus exclusively on a student's disability, the state's new IEPs consider disability one small part of the overall student. Their goals and strengths should be equally considered when crafting a student's IEP.
The project's three major goals are:
- Enhanced collaboration
- Better clarity and consistency
- More comprehensive documentation
An underlying theme of the IEP Improvement Project is to continually reassess how to best support students with disabilities. This means that improvement is a constant process, and changes and revisions are a feature and not a bug.
The Lento Law Firm's Education Law Team keeps track of these changes. We can help families understand the current law and any recent or proposed changes, including how those may affect students.
Special Education Terms
The number of terms and acronyms used in special education can be overwhelming. Some, such as ASD (Autism Spectrum Disorder), are specific to one disability. Others are more common, and three appear frequently.
FAPE, or free appropriate public education, refers to the right that all children have to a K-12 public education that's offered at no cost to their families. For students with disabilities, FAPE includes special education services.
As the Public Schools of Brookline highlight on their website, inclusion is an important component of special education. The legal term for inclusion is least restrictive environment (LRE).
The goal of LRE is to include students with disabilities in general education classrooms as much as possible. If and when students would benefit from a different placement, however, what's in a student's best interests - and what would give them the best access to an education - takes precedence.
Schools must provide students with reasonable accommodations. This does not mean the best, most expensive, newest, or what another school district offers. It does mean that an accommodation must be effective and doesn't place an undue burden on the school or any member of the school community. Accommodations should place students with disabilities on similar but not identical footing as their nondisabled classmates.
Dispute Resolution
IDEA requires that all states offer dispute resolution to address disagreements about special education services. Some are available at no cost to families and school districts.
Massachusetts offers more options than federal law requires, which, while beneficial to families, can make deciding the best option more complicated. Two different state offices, the Department of Elementary and Secondary Education and the Bureau of Special Education Appeals, handle different dispute resolution options.
Some of the dispute resolution options available in Massachusetts:
- Early intervention dispute resolution
- Problem resolution system
- BSEA Mediation
- Due process hearings
- BSEA Facilitated Team Meetings (FIEP)
Families should, when possible, first attempt to resolve a disagreement via meetings or informal conversations. The Education Law Team at the Lento Law Firm can help families understand each option and which is best for their student.
Who Qualifies for Special Education
Students must have a disability to qualify for special education services. IDEA and Section 504 have different definitions of what a qualifying disability is. IDEA uses a narrower definition, and any child who meets IDEA's definition will also meet Section 504's definition.
Section 504 and the ADA both define a disability as:
- At least one physical or mental impairment
- That impairment affects at least one major life activity, such as education
IDEA, in comparison, requires that:
- A student must have one of the following qualifying disabilities:
- Autism
- Developmental Delay
- Intellectual Impairment
- Sensory Impairment
- Neurological Impairment
- Emotional Impairment
- Communication Impairment
- Physical Impairment
- Health Impairment
- Specific Learning Disability
- That student isn't making effective academic or developmental progress due to that disability
Boston Public Schools' Special Education Policy and Procedural Manual provides additional information on each disability. The district not only defines each disability but also gives information on how each disability will affect a student's IEP.
Child Find
Public schools must have a publicly available procedure for locating and assessing children who may have disabilities. Districts may work with other local agencies to identify babies and toddlers who are too young to attend school, but the district's policy must cover all children under the age of 21 who haven't graduated from high school. The name for these programs is Child Find.
Plymouth Public School's Child Find information is a good example of what school districts should make available. It includes contact information for the district's department and schools.
How to Qualify for Special Education
Schools must evaluate students to determine if they have a disability and how that disability affects their ability to learn. These evaluations must be sufficiently comprehensive and also establish what special education service and support a student receives.
Massachusetts recommends that schools first assess a student for an IEP. If a student doesn't qualify for an IEP, a school should then evaluate that student for a 504 Plan. Families can see the steps to qualify for special education with the Department of Elementary and Secondary Education's eligibility flowchart.
Weymouth Public Schools provides a link to A Parent's Guide to Special Education. This guide is a good general resource for parents in Massachusetts and includes diagrams on the basic process of qualifying for special education services.
The general steps are:
- Referral
- Evaluation
- Initial Meeting
- Annual Review
- Reevaluation
The details of each step will vary for each child. Factors that will influence evaluation include age, what's suspected or known about their disability, and their education and/or developmental record.
Teacher Shortage
Nationwide, the United States faces a shortage of special education teachers, and Massachusetts is not an exception. In 2023, the state revised its licensing rules for special education teachers.
The revisions make it easier for already-licensed teachers to move into special education. They also created a new license for pre-K special education teachers and modified some requirements.
Either before their child enrolls in a school or during an IEP or 504 meeting, parents or guardians should ask whether a district has any staffing shortages in special education. If a district does, parents or guardians should then inquire as to how the district is managing the shortages in a way that minimizes disruption and support to students with disabilities.
District-Specific Programs
Individual school districts may provide support above and beyond what federal and Massachusetts laws require. They may also provide different services compared to other school districts.
Framingham Public Schools lists the services the district provides on its website. The district also breaks down these services into four categories: preschool, elementary school, middle school, and high school.
Schools should also have resources for post-high school transition planning. Established in 1983, the Bureau of Transitional Planning puts procedures and processes into place to help teenagers move from high school into the adult world.
To assist students with transitioning into the workforce, Haverhill Public Schools has The Learning Cafe. The goal of the cafe is to give students opportunities to gain skills that will be useful both at home and in the workplace.
New Bedford Public Schools put the upper limit at receiving special education services at age 22. The district also emphasizes that the services and support a student requires can and often do change as they age.
Another consideration is what special education professionals a district has on staff versus for what services they use independent contractors or send students out of their home district. Fall River Public Schools, for example, has a dedicated assistant superintendent of special education.
The majority of students who receive special education services spend the majority of their day in general education classrooms. Some students, however, may require support beyond what can be provided in a general education classroom or may do better in a more specialized environment.
In 2023, Quincy Public Schools opened the Dr. Rick DeCristofaro Learning Center. The purpose of the center is to provide in-district support for K-8 students beyond what the district's other schools can provide.
Special Education is a Right
Whether or not a student receives the special education services and support they require can make or break their education. If and when a school fails to provide your student with needed special education services, you have options to address the problem and defend your child's right to an education.
The Education Law Team at the Lento Law Firm assists families in Massachusetts and nationwide with special education issues. We help our clients understand their options and find workable solutions that keep the focus on their child. To learn how we can help you and your child, call us at 888-535-3686 or fill out an online form.
