Balancing the Needs of Regular and Special Eduaction Students

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Miriam Kurtzig Freedman
Attorney, Stoneman, Chandler & Miller, LLP
Visiting Fellow, Hoover Institution, Stanford University

The Challenge

Special education is at a crossroads. Policymakers must decide whether to continue under special education laws to provide extensive legal entitlements for due process and services to a select group of students or to expend funds and efforts for services that will benefit all students, including students with disabilities. The need for such legal protections and entitlements once existed. In the 1950s and 1960s, many children with handicaps were excluded from school programming. Now all children, including children with disabilities, have access to our schools. We need to undertake two discrete approaches to meet current challenges: The first is to address some excesses and flaws in Massachusetts practices. The second is to draw on the principles of outcome-based reform to rethink the entire enterprise of “special education” toward providing effective education for all the children in the Commonwealth.

Special education in Massachusetts is governed by two sets of laws—the federal Individuals with Disabilities Education Act (IDEA) and the state law, Massachusetts General Laws Chapter 71B (Chapter 71B). Both statutes were initially enacted in the 1970s. The federal law sets the floor; states can provide more rights to children with disabilities and their parents—but not fewer. While Congress may amend the IDEA in its upcoming reauthorization efforts, this discussion focuses on changes Massachusetts can make to realign its system and rebalance funding for regular and special education within the current federal framework.

The goal of special education is to provide eligible children with a “free appropriate public education” (FAPE). Such an education is reasonably calculated (by the Individualized Education Program [IEP] Team) to provide measurable benefit to the student. The successes of special education in Massachusetts have been impressive. It is important to acknowledge and honor them. No longer are children with disabilities denied an education. Instead, some 15-plus percent of Massachusetts students are served through extensive (and expensive) special education programming, and their parents have powerful substantive and procedural protections.¹

Special education is the only mandated individualized entitlement for children with educational, social, medical, emotional, behavioral, and other needs in Massachusetts. Other Massachusetts agencies—DSS, DMH, DMR, DPH, DYS—rely on appropriations and offer no individual entitlement.² When the money’s gone, it’s gone. These agencies regularly direct parents to their local schools for services. With special education, when more money is needed, it comes out of other pockets—namely, regular education. Although the federal government and the state contribute to special education costs, the burden of paying for costly special education programs falls largely on local taxpayers. The entitlement to special education procedures and services regardless of cost has spawned unintended and damaging consequences.

What are we actually buying with all the funds going to special education? Special educators spend far more time on paperwork and at meetings than in class. One recent unpublished report found that special educators spend 81 percent of their workdays on administrative duties and only 19 percent of their time actually teaching.³ After initial evaluations, re-evaluations, Team meetings, writing IEPs and progress reports, follow-up case management, and using minimum contractual prep time, less than one-fifth of the week was left for teaching. We must choose: Do we want teachers to teach children or to push paper? We cannot afford both in a six-hour day and given our current finances.

The enormous expenditure of resources (in time, money, and effort) for special education compromises school improvement efforts.⁴ The federal mandate under No Child Left Behind (NCLB) is designed to assure “adequate yearly progress” (AYP) for all students, including those with disabilities. The stated goal is, through the use of researchbased instruction, to have all students proficient in specified skills, especially reading/ language arts, math, and science, by the year 2014.⁵ The thrust of NCLB, as well as the federal IDEA, is to educate most children with disabilities in the “general curriculum.” This would seem to call for ending the dual instructional system, providing consistent curricula for all students, and teaching each child appropriately. Yet, while NCLB focuses on ALL students, the individualized mandate of special education continues unabated, often leading to inconsistent policies and goals.

The Solution

What follows are eleven practical proposals for balancing special education and regular education. While it would be best if all the proposals were accepted, each one stands on its own. In the short term, Massachusetts should scale back its special education mandates to align with federal law. For the long term, both the federal government and the states should revisit special education laws and acknowledge their fundamental incongruity with a public education system newly focused on academic standards and accountability for results for all students.

Practical Short-Term Proposals

1. Focus resources on early teaching, especially of reading, for all students instead of special education for some. Research shows the promise of early intervention and prevention, and it is now mandated by NCLB.

Of all students with IEPs nationwide, half have been labeled SLD—that is, as having specific learning disabilities. Of these, 80 percent are so labeled because they have not learned to read.⁶ In 2000-01, the average percentage of children across states, aged 6 to 17 with SLD, was 5.52 percent; the Massachusetts percentage was 8.52 percent.⁷ Only Rhode Island, at 8.73 percent, was higher.⁸ It is simply not credible that almost 9 percent of our students have SLD. Anyone in the field will tell you that the criteria are arbitrary. Decisions often have more to do with parents’ zip codes and advocacy than with students’ attributes. We should focus less on identifying students, especially young students, for learning disabilities. We should instead invest resources in early teaching, in-class supports, and other preventive measures for all students. To the extent that such practices are being implemented, they should be supported.

2. Tighten eligibility through consistent disability definitions and criteria, both in regulations and practice.

To the extent that the Massachusetts definition of “special education” exceeds the IDEA’s, it should be scaled back. Such definitions do affect practice. For example, Vermont tightly defines entitlement to special education in terms of eight basic academic skills. That narrow definition helped a district demonstrate that it provided an appropriate alternative to an expensive private school placement.⁹

In the last few years, Massachusetts finally adopted disability categories. Prior to that, we were “non-categorical.” Educators, parents, and hearing officers are still on the learning curve. What is medical? What is educational? What is a serious emotional impairment (covered) as opposed to social maladjustment (not covered)? What is a specific learning disability (SLD)? And what is simply a different learning style? Categories that are ambiguous (as many are) lead to inconsistencies within and across districts and in Bureau of Special Education Appeals (BSEA) decisions.

Adding to the confusion, some Massachusetts definitions differ from the federal definitions. Massachusetts should adopt IDEA definitions, as inconsistency and confusion waste precious time and money. Eligibility determinations need to tighten in practice as well as in regulations. The good news is that when districts do make “no eligibility” findings, the BSEA generally upholds their determinations.¹⁰

3. The Executive Office for Administration and Finance and the Division of Health Care Finance and Policy should set reasonable uniform rates for services and outof- district private programs.

Costs for private schools and services continue to escalate. Recently, one suburban district spent almost $4 million for approximately 90 special education students in private placement (more than $35,000 per student on average), while it spent about $3.5 million on the 600 in-district special education students (about $5,800 per student on average). In both cases, these dollar amounts are over and above the district’s perpupil expenditure for regular education students. This is wrong.

The Division of Health Care Finance and Policy, which sets rates for evaluations and specific services, should add some new ones to its price lists, specifying costs according to the providers’ degree of training. Currently, we have too many disputes with providers for such services as applied behavior analysis (ABA) and sensory integration (SI). Lack of clarity about approved rates for service providers leads to many disputes and, undoubtedly, higher costs.

4. State agencies should serve school-aged children with significant non-educational needs.

One benefit of tightened eligibility may be that finally other agencies will have to come forward to provide services. Massachusetts, like the rest of the country, has seen a growth in the numbers of youngsters with serious emotional, physical, and social disabilities who are difficult to place. Many youngsters have multiple needs—only one of which is education. These include students with extensive medical needs, clinical depression, substance abuse issues, SED (serious emotional disturbance), ODD (oppositional defiant disorder), PTSD (post traumatic stress disorder), and explosive disorder, as well as sex offenders. For too long, special education has been the only game in town. Massachusetts should revise its statutes and clarify which agencies (DSS, DMH, DMR, DPH, DYS) should serve school-aged children whose main or even parallel need is not educational—but rather social, emotional, or medical.

Insurance companies too have often been let off the hook. If services are available through insurance and education, parents are steered to get them at school. For example, ABA, the oft-requested and costly 40-hour per week program of in-home Discrete Trial Training for children with autism, started off as “therapy” paid by medical insurance and later became “education.”¹¹ Continuing to place all responsibility on school districts dilutes and diverts the district’s energy and resources and, ultimately, will end any hope of achieving quality learning for all students.

Massachusetts must clarify which entity—school, social service agency, insurance, and/or parents—should fund hospitalizations, treatment centers, etc. Allowing battles about these issues to continue on a case-by-case basis at the BSEA is costly and does not provide districts, parents, or agencies with much needed guidance for their decisionmaking.

The BSEA has recently provided assistance in this effort by taking jurisdiction over state agencies (in addition to the DOE) for services to children with disabilities.¹² This is a good start, and we should build on it.

5. The BSEA should improve its due process hearing procedures.

The BSEA is charged with providing parents and school districts—both of which have due process rights—with a venue to resolve disputes about a child’s education. Unfortunately, over the past 25-plus years, the BSEA hearing process has become overly burdensome for parties. In response, they take steps to avoid the system. Of 647 hearing requests in the 2002-03 school year, only 27 (about 4 percent) resulted in decisions.¹³ The rest were withdrawn or resolved privately (often, to “save” money).

While some may applaud the fact that most disputes are “settled,” parties often settle cases for the wrong reason: It is simply too costly and burdensome to go to a hearing.¹⁴ Hearings often take many days stretched out over months, require multiple written motions and procedures, and involve “gotcha games” of procedural compliance. Faced with similar issues, California recently amended its statute, allowing hearing officers to limit the length of hearings and take other measures to rein in due process hearings.¹⁵

BSEA decisions, when finally rendered, read like legal tomes. Thirty- to 50-page single-spaced decisions are typical. They are too complex and often leave parties exposed to more litigation and uncertainty. The irony, of course, is that the burden created by the BSEA’s current practice serves to deny both parties their due process rights to speedy resolution of a dispute about a child. The process is extremely stressful for school personnel and parents. Far too often, it permanently damages the relationship between home and school.

6. Eliminate burdensome paperwork and excessive requirements.

It is well known that paperwork and procedural burdens are driving special educators from the field. Teacher recruitment and retention are major national challenges. Excessive paperwork and procedures often have negative unintended consequences, such as added tension among staff and parents, and lack of trust.

Specifically, the DOE should loosen state timelines and requirements that exceed the IDEA’s. Some states have simply adopted the federal standards. Our state regulations are still some 40 pages long—in addition to the IDEA’s 100 pages of regulations.

Massachusetts DOE audits and complaint resolution systems continue to be driven by paper compliance—endlessly documenting process instead of progress, input instead of outcome. Most school professionals do good work, care about education and children, and want to do the right thing. The state should find a way to support them and stop playing procedural “gotcha games.” IEP Teams should be encouraged to make reasoned outcome- and data-driven decisions, instead of trying to bulletproof themselves against the threat of litigation and DOE monitoring. The DOE should actively set out to rebuild a sense of cooperation with schools, becoming more of a partner and less of a watchdog.

Massachusetts should amend several specific requirements, including the following, and adopt the federal model, where it exists:

• Provide districts with more flexibility for completing evaluations, determining SLD eligibility, and implementing IEPs.

Federal requirements have no timelines. Massachusetts regulations require school evaluations to be completed within 30 school days of the parents’ consent, while parents’ independent educational evaluators are given more flexibility: “whenever possible within 30 days.”¹⁶

Massachusetts requires that the Team shall determine eligibility, while the federal regulations state the softer may determine, based on certain information.¹⁷ Since SLD is by far the largest eligibility category, and since we have more SLD students than the national average, loosening this requirement may assist school-based Teams. It costs nothing to implement and may save dollars.

The IDEA states that IEPs shall be implemented “as soon as possible” after they are developed. In Massachusetts, districts must write and implement IEPs “immediately” and “without delay.”¹⁸ Failure to implement IEPs “immediately” can lead to orders for compensatory services—a troubling and costly new growth area in special education litigation nationwide and at the BSEA.

• Simplify the IEP form and Team meeting requirements.

There is no mandated federal IEP form. The Massachusetts mandated IEP form has gotten longer and more complex, instead of shorter and easier to develop. It is not userfriendly. Do parents actually understand it? It is not unheard of to have an IEP Team meeting about one child continue on for multiple sessions, each several hours long— just to complete the IEP and fill out the form. Who is teaching students while this endless process unfolds? Who finds and funds substitute teachers and aides? Such processes are costly, nerve-racking, and drain the cooperation contemplated in special education.

7. End the Massachusetts statutory right to a “related services only” IEP.

Under the IDEA, specific related services (occupational therapy, physical therapy, counseling, speech/language, music therapy, transportation, etc.) must be “related to” special education. But Massachusetts’ sweep is broader. Here, “related services” need not be related to anything.¹⁹ That is wrong. We already have the Section 504 option for children who are eligible solely for related services.²⁰ IEPs solely for related services are costly, time-consuming to develop, and confusing to districts and parents.

8. End the FAPE requirement for home-schooled children.

State law regulates home schooling. There is no federal IDEA requirement. Massachusetts should treat home-schooled children as privately placed children who are withdrawn from the district by their parents. Instead, Massachusetts requires school districts to assure home-schooled children the entitlement to FAPE. Trying to monitor their programs has turned out to be difficult and costly.²¹ Massachusetts should end the school districts’ obligation to ensure that home-schooled children are receiving a FAPE.

9. End the individual entitlement for services for children who are privately placed in private school—when FAPE is not at issue.

Massachusetts currently provides students who are privately placed in private schools by their parents with an individual entitlement to obtain special education and related services from the district at a time and place that provides them a “genuine opportunity.”²² This is so even when there is no dispute that the district had offered the child a FAPE that the parents chose not to access. This entitlement should end. Again, federal law has no such requirement. Instead, under the IDEA, these children have no individual entitlement to services or even to request a due process hearing. They do have the right to file a complaint with the DOE and to receive services as a proportionate share of the district’s federal moneys, provided at district discretion in consultation with private/parochial schools.

In February 2004, the First Circuit Court of Appeals upheld these IDEA provisions in a New Hampshire case.²³ Massachusetts school districts, though in the First Circuit, may not be able to benefit from this ruling due to the state’s enhanced Chapter 71B provisions.²⁴ The legislature should revise them.

It is important to highlight the reality that other laws protect these children as well. Private schools may be obligated to provide services for students under Section 504 and the Americans with Disabilities Act (ADA).²⁵

10. Disseminate information more effectively about regular education opportunities offered by public schools for all children.

Some parents believe they need an IEP or “504 plan” to get services for their child. Often the services sought are simply good teaching practices that are routinely provided in general education, extra help, MCAS tutoring, preferential seating, counseling, monitoring by teachers or therapists, parent communication, etc. As Massachusetts regular education reforms and NCLB requirements unfold, schools must get the word out about the extensive services they offer for all students through regular education programming.

Perhaps the DOE or a consortium of schools should seek a spokesperson like Bill Cosby, a sports hero, or young businessperson to spread the word about what schools are doing for all students. Such information (in plain language) can alleviate parental fears about the “cracks” through which their children might fall. Special education is not the only service or sealer of “cracks.” A good public relations effort may prove to be cost-effective.

11. Amend MCAS policy and practice.

First, the MCAS alternate assessments continue to be overly labor-intensive, timeconsuming for teachers, costly, and of uncertain validity. Simplification and further targeting are in order.

Second, the DOE should amend its MCAS accommodation requirements for students with disabilities. The DOE now allows for testing that results in invalid scores for some students. The DOE allows IEP teams to provide “non-standard” accommodations for students—and to count those “non-standard” scores along with those taken under “standard” testing conditions.²⁶ Thus, in Massachusetts, some children have the reading test “read” to them or use a spell checker or scribe in the “composition” tests or have a calculator for the non-calculator portion of the math test, etc.²⁷ And all their scores count are reported along with those taken under standard conditions.

This policy is wrong for many reasons. For starters, it invalidates the test, in contrast to long-standing psychometric principles, and NCLB, IDEA, and Section 504 requirements. It appears to focus on getting students to “pass,” instead of to learn the skills tested. It contradicts more than 20 years of legal precedent and federal directives, which instruct IEP Teams to provide needed accommodations, limiting them to those that preserve validity standards (what the test purports to measure).²⁸

The DOE’s requirements expose the state to lawsuits for compensatory services by high school graduates.²⁹ We can expect other unintended consequences from this wellmeaning— but wrong—approach.³⁰

• “You passed me through. You certified that I had the basic MCAS skills of reading, writing, and math, when you knew I did not.”
• “I can’t hold a job because my boss says I have to be able to read. It’s your fault.”
• “You held me to different (lower) standards.”

Compensatory education is a growing and costly concern—far better and more costeffective to have a valid and reliable MCAS now. If, to do so, the state has to amend education policy or redefine “diploma,” so be it. We can have more than one diploma or create other honorable high school exit documents. The appropriate response is not to pass children through invalid accommodations and other questionable testing practices.

Solution for the Long Term: Creating a 21^st-Century Model

Special education has always been and still is—in essence—a civil rights law. It is not about teaching and learning, pedagogy, outcomes, research-based education, or what works best for children. It is about rights and access and disputes. It is about the individualized entitlement to due process. As long as the legalistic, procedural entitlement of the IDEA and Chapter 71B remains, we cannot truly balance services for all children and rein in costs. We will continue to rearrange the deck chairs on the Titanic until the entire public education effort sinks.

The need for that entitlement disappeared years ago. It is time for the law to catch up with the progress of the past 30 years. Let us declare victory and move on! Just as the March of Dimes changed its mission after the polio vaccine succeeded, so should we.

The 1970s civil rights model of disputes and court action does not fit the outcomedriven, research-based model for education that we are attempting to implement in the early 21^st century.³¹ The 20^th-century procedure- and input-driven IDEA needs to make way for 21^st-century outcome-based reforms, including those in the NCLB. It is time to end the individual entitlement to special education.

Special education should become about what works for children with disabilities in classrooms. Special education should consider student strengths, as well as weaknesses; raise expectations, not lower them based on disability status; focus on results, not process. Special education should be about providing services that are outcome- and research-based and specialized, as appropriate. Lawyers, doctors, and state officials should step aside and let special educators teach more than a small fraction of their day. Twenty-first century education should focus on assisting all students to learn—never mind the label.

Special education should not continue to be paid off the top of school budgets because of its status as the only individualized entitlement for students. The Superintendents’ report, The Impact of Special Education on School Reform, found that most of the 1993 Education Reform Act moneys went to fund special education costs and never reached the intended target. “These developments place education reform at risk.”³² Paying for costly special education at the expense of improving our schools is bad public policy. We will pay now or later for a poorly educated citizenry and good intentions gone terribly awry. Let’s do the difficult right now by adopting the eleven practical changes summarized above. As for the “impossible,” let us begin to create a 21^st-century model to educate all students without the need for labels and end the entitlement for due process-driven special education as it has been practiced.

Costs and Benefits

According to the Massachusetts Department of Education, 150,551 students (15.15 percent of the total) were reported to have disabilities under the IDEA and Chapter 71B in the 2002-03 school year; more than half of these were categorized as having Specific Learning Disabilities. Direct and indirect expenditures on special education in Massachusetts— not including the regular education share of education received by students with IEPs—was estimated in fiscal year 2002 at 21 percent of total education spending.³³ The Office of School Finance reports that in FY2002, per-pupil expenditures for special education students were approximately twice as high as for regular education students ($13,178 vs. $6560).³⁴ The Commonwealth’s spending on special education programs tops $1.25 billion annually.³⁵ Implementing the above proposals should help Massachusetts use its limited education dollars more effectively and bring education services for all students in line with federal mandates for improvement and accountability for results.

Obstacles

Obstacles to these proposals are powerful. Change is hard. Some have deemed threatening the entitlement to special education as “the third rail.” Politicians touch it at their own peril. As the Massachusetts Superintendents’ report has shown, however, unless we tackle this issue—like the elephant in the room—the chance of true reform for all is diminished.

We should not falter. These proposals are right for students, right for schools, right for Massachusetts, and right for our nation. We need to move beyond tinkering with the IDEA through amendments and refocus our energies on education for all students. The NCLB requires research-based instruction and outcome-driven results. Because students with disabilities are highlighted among the groups for special focus and attention, their education will need to be appropriate, and in some cases, specialized and individualized. This school-wide improvement model should be given a fair chance without the everpresent fear of litigation from one select group.

Yes, there are vested interests that will stand in the way. Powerful interests with powerful allies—at the local, state, and federal levels. But let us honestly ask: At this time when children with disabilities have full access to public education, what can be the continuing justification to allow only their parents the right to seek and demand special programming, different methodologies and discipline procedures, or extra services for their children?

Some advocates will argue that we should not take any rights away but, rather, expand the due process entitlement to all students. That response may “feel good,” but it is impractical, counterproductive, and ultimately meaningless. Creating more of a legal battleground in schools is not the answer. That response would further whittle away the limited time left for actual teaching and continue to erode accepted ideals of fairness, the common good, and meaningful education reform for all. Instead, we must declare victory in the due process and educational access journey for children with disabilities and move on—into the 21^st century.

Replication

Some of the issues cited above pertain only to the Commonwealth. Others are of concern in many states, in particular, the commitment of social services agencies to children with special needs; the simplification of due process hearings; the reduction in burdensome paperwork requirements; and the need for our public schools to improve their outreach to parents about progress and effective programs in regular education. Solutions implemented elsewhere, such as California’s efforts to shorten hearings and Vermont’s precise definition for education, should be considered here in the Commonwealth.

Discussions at conferences and papers published in national journals document the growing realization that the current status of special education cannot hold: it does not serve children well, it burdens schools procedurally, it creates unfairness and perverse incentives, and it is out of step with outcome-driven approaches to school improvement. We must, as a nation, fix special education if we are to meet the education reform challenge of serving all students well.

About the Author

Miriam Kurtzig Freedman is an attorney at Stoneman, Chandler & Miller LLP, a law firm in Boston, Massachusetts. A specialist in education law, she represents school districts on issues of testing, standards, and students with disabilities, and writes, speaks, and consults nationally on these issues. She wrote this paper while a Visiting Fellow at the Hoover Institution, Stanford University in early 2004.

Before entering the practice of law, Ms. Freedman served for eight years as Hearing Officer with the Bureau of Special Education Appeals of the Massachusetts Department of Education. She received her law degree from New York University, following a tenyear career as a teacher in New York, New Jersey, California, and Massachusetts. She also has a master’s degree in history from the State University of New York at Stony Brook and a bachelor’s degree from Barnard College, Columbia University.

Ms. Freedman has written three books, Testing Students… and the Law, Sourcebook for Substitutes and Other Teachers, and Legalese: The Words Lawyers Use and What They Mean. She has written two special reports for LRP Publications about testing issues and residential schools. Her articles have appeared in Teacher, The Journal of Secondary School Administrators, Massachusetts Association of School Committees Journal, Education Week, and Education Next. Since 1995, she has been a commentator for the Massachusetts Special Education Reporter, a quarterly publication highlighting Massachusetts special education decisions.

Endnotes

1. The national average in 2000 was variously estimated at 10 to 12 percent. The percentage of students eligible for special education in the Commonwealth has fallen from 17.4 percent in 1992 to 15.15 percent of total enrollments in 2002-03. Though enrollment in special education may be declining somewhat, the severity of many students’ needs is increasing. See the Superintendents’ study cited later in this discussion.
2. Department of Social Services, Departments of Mental Health and Mental Retardation, Department of Public Health, Department of Youth Services.
3. Unpublished report by Linda Chase, former special education director of the Winchester Public Schools. More comprehensive data on the use of special education staff time are not available.
4. See Sheldon Berman, Perry Davis, Ann Koufman-Frederick, and David Urion, “The Rising Costs of Special Education in Massachusetts: Causes and Effects” in Chester E. Finn, Jr., Andrew Rotherham, and Charles R. Hokanson, Jr. (eds.), Rethinking Special Education for a New Century, Thomas B. Fordham Foundation and the Progressive Policy Institute, May 2001.
5. The IDEA and NCLB provide for the reality that a small number of students with disabilities cannot be expected to reach this goal as a result of their unique disabilities.
6. A New Era: Revitalizing Special Education for Children and their Families, The President’s Commission on Special Education, July 2002.
7. Statistics from U.S. Department of Education’s Twenty-fourth Annual Report to Congress on Implementation of the IDEA (2002). Available online at http://www.ed.gov/ offices/about/reports/annual/ OSEP/2002.
8. These numbers are based on state reports, which undoubtedly reflect different practices. Nonetheless, Massachusetts continues to focus tremendous efforts on these children and, given the many private programs in the Commonwealth, this disability category continues to generate many disputes at IEP Team meetings and at Bureau of Special Education Appeals (BSEA).
9. J.D. v. Pawlet School District, 224 F. 3d 60; 33 IDELR 34 (2nd Cir. 2000).
10. See, for example, Weston Public Schools, BSEA # 01-0682; 7 MSER 10; 34 IDELR 75 (2001).
11. For an interesting example of this evolution, see Catherine Maurice, Let Me Hear Your Voice: A Family’s Triumph over Autism, New York: Fawcett Columbine, 1993. The parents had two children with autism. They won an appeal against the insurance company for payment of the ABA Discrete Trial Training for both children. The book states that the other recourse is to “convince the local school district that the child needs this therapy, and that the district should provide it under the [statute].” It appears that most parents now seek such services through the school districts.
12. See, e.g., Medford Public Schools, BSEA # 01-3941; 7 MSER 75 (2001).
13. MEMO, BSEA, “Special Education Appeals—Fiscal Year, 2003 Data Summary,” October 7, 2003.
14. See also, Anna B. Duff, “How Special Education Policy Affects Districts,” in Chester E. Finn, Jr., Andrew Rotherham, and Charles R. Hokanson, Jr. (eds.), Rethinking Special Education for a New Century.
15. California Education Code Section 56505.1.
16. Compare 603 CMR 28.04(2) with 28.04(5)(e).
17. Compare 603 CMR 28.05(2) (a)(1) with 300 CFR 541(a).
18. Compare 603 CMR 28.05(3) (b) and 28.05(7)(b) with 300 CFR 300.342(b)(1)(ii).
19. 603 CMR 28.02(9); 05(2)(a).
20. Section 504 of the Rehabilitation Act of 1973 (Section 504) is the federal anti-discrimination statute for people with disabilities. Under Section 504, schools determine eligibility for protection and provide accommodations for eligible children. As with special education, parents have rights to dispute the district’s determination and seek due process. In Massachusetts, they can do so at the district level, state (BSEA) level, and federal (Office for Civil Rights) level.
21. See, e.g., Acton-Boxborough Regional School District; BSEA # 03-2542 8 MSER 402; 38 IDELR 82 (BSEA 2002).
22. 603 CMR 28.03(1)(e)(1).
23. Greenland School District v. Amy N. 358 F. 3d 150; 185 Ed. Law Rep. 73; 40 IDELR 203 (1st Cir. 2004).
24. See, e.g., Medford Public Schools, where the BSEA expansively interpreted the IDEA for a parochial school student. BSEA # 02-1855; 8 MSER 367; 38 IDELR 24 (BSEA 2002).
25. See Axelrod v. Phillips Academy, 30 IDELR 516 (D.C. MA 1999), and Bercovitch v. Baldwin School, Inc., 133 F. 3d 141; 123 Ed. Law Rep. 1067; 27 IDELR 357 (1st Cir. 1998), private school cases, for extensive descriptions of programming and accommodations private schools make for students with disabilities, under the ADA and Section 504.
26. “Standard” accommodations do not fundamentally alter what is being tested and maintain test validity, while “non-standard” accommodations do fundamentally alter what is being measured. In other words, they invalidate the test, for purposes of reporting results. In many states, “standard” accommodations are called “accommodations,” while “non-standard” accommodations are called “modifications.”
27. Requirements for the Participation of Students with Disabilities in MCAS: Including Test Accommodations and Alternate Assessment, A Guide for Educators and Parents (Spring 2004 Update).
28. For example, Indiana recently defended its graduation test against a class action lawsuit by students with disabilities. The court held that the IDEA was not violated when the state refused to allow certain accommodations on the test, if those accommodations would affect the validity of test results. Rene v. Reed, 751 NE. 2d 736 (In. C.t App. 2001); transfer denied, 774 NE 2d 506 (Ind. 2002). Memorandum, Letter to Chief State School Officers, 34 IDELR 293 (OSERS/OESE 2001); Letter to Gloeckler, 103 LRP 49608 (OSERS 2003).
29. Recently, a 32-year-old in New York was permitted to sue the district for compensatory services. Also see Brett v. Goshen Community Sch. Corp, 161 F. Supp. 2d 930; 35 IDELR 152 (N.D. Ind. 2001), where a graduate tried unsuccessfully to prove that he was passed through the system inappropriately.
30. By report, a school already fielded a parent’s request to stop teaching reading to the child, since the child can “pass” MCAS without having to read.
31. See more extensive discussion in Miriam Kurtzig Freedman, “Special Education at century’s end: Why it’s off course and how to realign it,” in Agenda for Leadership 1998, Pioneer Institute for Public Policy Research.
32. The Impact of Special Education on School Reform, Final Report of the Task Force on Special Education of the Massachusetts Association of School Superintendents, February 1997, p. 8.
33. Massachusetts Students with Disabilities Annual Report: 2002-03, p. 2.
34. See http://finance1.doe .mass.edu/statistics/pp02.xls. Different reports use different data provided for different purposes. This article does not compare them. It provides statistics for the purpose of conveying the magnitude of special education spending in the Commonwealth.
35. See FY01 figures at http:// finance1.doe.mass.edu/ seducation/spedexp01.html.