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Back to Basic Rights: Initial Eligibility

Does your child need special education services? Maybe his grades have suddenly plummeted, he’s repeatedly seeking to stay home from school for a variety of reasons, or has been struggling with behavioral outbursts at home or in the classroom. Perhaps the pediatrician has suggested that you have an evaluation conducted to assess for possible learning disabilities or other needs that could be impacting your child’s performance in school.

If you are seeking to make a referral for your child to receive special education services, you must do so by contacting your local school district and requesting an evaluation to determine special education eligibility. It is best to make this request in writing. Once the request has been received, the school district has five school days to provide you with an evaluation consent form to begin the evaluation. The school district cannot begin conducting assessments without your written consent.

The school district must complete evaluations within 30 school days of a parent’s signing of the written consent, and within 45 school days a Team meeting must occur to discuss the evaluations, determine eligibility, and complete a formal plan for services (Individual Education Program (IEP)) or accommodation plan (504 Plan) for an eligible student. You have a right to receive the special education evaluation reports two days prior to the Team meeting but must alert the school district that you would like copies to review in advance. The Team will use these evaluations as the basis of its discussion in determining if your child is eligible for special education services. As part of your child’s Team, you are an equal part of this discussion and determination. If your child is found eligible, the Team will use the results of the evaluations to develop an IEP, which will outline specific services and supports believed necessary to enable your child to make measurable progress, which can include academic, social, emotional, and functional progress.

If your child is found not eligible for special education services you will receive a notice from the school district that details the reasons for the denial, as well as a notice that specifies your rights. If you disagree with the decision you have a right to appeal. However, often an effective strategy if you disagree is to first notify the school and schedule an additional meeting with the Team to discuss your concerns regarding your child’s needs and attempt to resolve the disagreement.

Sometimes, students who are not found eligible for an IEP may be found eligible for appropriate accommodations under a 504 Plan. That meeting would be held at a later date and may involve team members different from those who participated in the IEP eligibility meeting.

Meeting with your school district’s special education director, or requesting mediation is another effective way to resolve issues about eligibility. Regardless of the process, you will likely need evidence to resolve a disagreement about eligibility. An independent educational or neuropsychological evaluation is often the most effective strategy to get a “second opinion” about school district evaluations in a way that can be persuasive to the Team.

In the event that you cannot resolve the disagreement informally, you have other options available to you, including:

  • Problem Resolution System (PRS): administered by the office of Program Quality Assurance (PQA) at the Massachusetts Department of Elementary and Secondary Education (DESE). Parents can call PQA to ask a question regarding the laws relevant to a specific concern and/or file a written complaint about procedural violations.
  • Bureau of Special Education Appeals (BSEA): an independent agency within the Division of Administrative Law Appeals (DALA) that conducts mediation and due process hearings to resolve disputes between parents and school districts.

* Check back soon to learn more about your child’s eligibility for an IEP or 504 plan and the differences/benefits to each

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5 Things to Know About “Effective Progress” Under Massachusetts Special Education Law

One of the questions I am asked most frequently by parents who have children with special needs is what does the term “effective progress” actually mean?  Often a parent will ask me this question because they are concerned that their child is not doing well at school despite having an IEP, and yet the school district is insistent that the student is making “effective progress” and is therefore unwilling to amend the child’s IEP to add services. To answer the question of what the term “effective progress” means, it is useful to first review how “effective progress” is technically defined under Massachusetts’ law:

“Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”

This definition is helpful, but not exactly clear. The good news is that BSEA and federal court decisions have provided some additional guidance about what “effective progress” means, including the following:

1. Effective progress does not mean maximum progress. It is critical that parents are aware that school districts are not legally required to ensure that students with IEPs achieve the maximum amount of progress possible.   As the federal court has explained, the “IDEA does not require a public school to provide what is best for a special needs child, only that it provide an IEP that is ‘reasonably calculated’ to provide an ‘appropriate’ education as defined in federal and state law.” Lt. T.B. ex rel. N.B. v. Warwick Sch. Com., 361 F. 3d 80, 83 (1st Cir. 2004). This means that there is often going to be a discrepancy between what a parent wants for their child (i.e., the best possible program and maximum progress), and what school district legally has to provide (i.e., an adequate program with some amount of progress).

2. Effective progress must be “meaningful”. School districts do have to make sure that a student is receiving a “meaningful” benefit from their educational program.  The Supreme Court has also stated that a “merely trivial benefit” is not enough to be legally adequate.  Bd. of Educ. of the Hendrick Hudson C entral School District v. Rowley, 458 US 176, 201 (1982).  In other words, while a district does not have to ensure that a student achieves an optimal amount of progress, it does need to make sure that the student is making meaningful gains under each IEP.  One way to assess whether a student’s gains are meaningful is to determine whether the student is making progress that is commensurate with their cognitive abilities.

3. Effective progress is based upon each child’s individual learning profile.  This is one of the reasons why effective progress is so hard to define – the standard will vary for each student based upon an assessment of each student’s unique needs. “Whether an educational benefit is meaningful must be determined in the context of a student’s potential to learn.”  Lessard v. Wilton Lyndeborough Coop. School District, 518 F3d 18, 29 (1st Cir. 2008).

For example, Student A has average to above average cognitive abilities and has been diagnosed with a specific learning disability.  Since Student A has average cognitive potential, it would be reasonable to expect that she would be able to read, write and perform math around her grade level with appropriate instruction.  So effective progress in this case might be measured by assessing whether Student A is achieving meaningful gains toward grade level academic achievement.

However, Student B presents with low average cognitive abilities and developmental delays. In this case, Student B’s version of effective progress is going be different than Student A’s. Effective progress for Student B is going to be progress that is commensurate with his cognitive ability – which may mean a slower rate of progress than what the Team would expect for Student A, and may include consideration of Student B’s non-academic needs.

4. Effective progress encompasses non-academic needs.  This issue has been litigated several times, and I think it is fair to say at this point that the BSEA and the federal courts are in agreement that school districts have to make sure that special education students are making progress not just academically – but socially, emotionally, behaviorally and physically as well.  For example, in a recent ruling, the BSEA found that a school district was required to provide an IEP to a student who was meeting academic expectations yet was not making adequate progress developing appropriate social skills.  See In re Belmont Public Schools, BSEA No. 1305177. In other words, school districts cannot refuse to address a student’s non-academic needs just because the student is passing their classes and/or the MCAS.

For students on the autism spectrum in Massachusetts, the Team also has to review 8 specific non-academic areas of potential need when developing an IEP – for more on this topic see my prior post here.

5. Effective progress must be “documented”. When assessing a child’s progress, it is important for the Team to consider a variety of sources of information.  Academic grades alone, for example, are not an adequate basis for determining that a child is making progress (or for finding a child ineligible for an IEP). Similarly, parents should be wary if the only evidence of progress offered by a Team is based on subjective feedback that a student “appears” to be making progress. Objective data and assessments are an excellent way to capture a student’s performance over time, and can help to document whether or not a student is making meaningful and effective progress. 

Consideration of effective progress also reveals why the evaluation process is so important.  It is very difficult to know whether an IEP is appropriate if the Team does not have a complete understanding of the student’s learning needs. Similarly, a parent may have trouble confirming that their child is making effective progress if objective data has not been collected to assess achievement levels and progress over time.

(Originally posted by Michelle Moor – February 13, 2014)

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Academic Progress Alone is not FAPE

A recent Massachusetts Bureau of Special Education Appeals (BSEA) decision makes clear that an Individualized Education Program (IEP) that allows for academic progress is not enough. Even when an IEP is appropriate academically, if it does not provide appropriate services to address other areas of need, such as social and emotional needs, it is a denial of a Free and Appropriate Public Education (FAPE).

In Student v. Acton and Acton-Boxborough Public Schools – BSEA # 14-05736, hearing officer Rosa Figueroa, supported a family’s decision to unilaterally place their fourteen-year-old child, who has a diagnosis of autism, in a private school. According to the hearing officer, “the sufficiency of a student’s IEP is not measured solely by [ ] academic success … an IEP that provides FAPE must promote a student’s development in all areas of need.”

The student called everyone a friend but did not understand the elements of friendship (e.g., trust, having fun together, etc.). He had limited understanding of perspective taking and the nuance of social norms. After school, he preferred to play video games, watch television, or read by himself. The social isolation was taking an emotional toll.

The hearing officer gave significant weight to an independent evaluator’s testimony that Acton’s program was fragmented, and it “lacked the type of cohesiveness necessary for the natural development of relationships Student required.”

The parents and independent evaluators asked Acton repeatedly for a goal related to friendship, and for a program that could provide the student with appropriate peers. The hearing officer found that Acton failed to provide these and other necessary elements of an appropriate program.

On the other hand, the private placement (Learning Prep School), provided the student with like peers and direct social skills instruction throughout his school day. As a result, the student made significant social and emotional gains over a short period.

Despite a finding that “from an academic standpoint Acton provided Student a program that offered him a FAPE, and its proposed seventh-grade academic program would have also afforded Student a FAPE” the parents still prevailed. The hearing officer found that Acton’s program did not and would not allow for social and emotional progress. The hearing officer awarded the family tuition reimbursement and ordered Acton to continue to pay for the student’s placement at Learning Prep School.

(Originally posted by Daniel S. Perlman – March 17, 2015)

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