Dan Ahearn

Special education law includes a combination of federal and Massachusetts statutes and regulations. Judges also decide cases that tell us how a statute or regulation must be interpreted. This section of the Handbook provides a brief overview of important federal and state statutes as well as some of the key terms associated with special education.

Federal and Massachusetts State Statutes
Federal Statute: The Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400
In 1975, Congress passed the first national special education statute, and it was called the Education for All Handicapped Children Act. The federal statute is now called the Individuals with Disabilities Education Act. Congress changed the IDEA most extensively and recently in 1997. The IDEA entitles eligible children with disabilities to a free appropriate public education which includes special education and related services. Under the statute, there are four terms, among many, with which a parent should be familiar. For a detailed listing of all definitions and terms, read 20 U.S.C. 1401 and 603 CMR 28.01.

First, the IDEA provides that each eligible child is entitled to a free and appropriate public education (FAPE). This term is defined as: ....special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; include an appropriate preschool, elementary, or secondary education in the State involved; C) include an appropriate preschool, elementary, or secondary school education in the state involved; and (D) are provided in conformity with an individualized educational program . . . 20 U.S.C. 1401(8); 34 CFR 300.13. Note that FAPE means that a child has access to educational services and that the child is making meaningful progress in school.

Second, the term special education is defined as ...specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education.... 20 U.S.C. 1401(25); 34 CFR 300.26.

Third, related services include such items as transportation and other services including developmental, corrective, and other supportive services that ...may be required to assist a child with a disability to benefit from special education....20 U.S.C. 1401(22); 34 CFR 300.24.

Finally, least restrictive environment means that a child must be educated, to the extent possible and appropriate, in the least restrictive setting possible when determining where and how services are to be delivered?.34 CFR 300.550.

Federal Statute: Section 504 of the Rehabilitation Act of 1973 (Section 504)
Section 504 refers to Section 504 of the Rehabilitation Act of 1973. This federal statute is a broad based anti-discrimination statute. It prohibits discrimination on the basis of disability. In the education context, it is applicable to school age students as well as students enrolled in higher education institutions. A more detailed analysis occurs later in this Handbook.

Massachusetts General Laws Chapter 71B (the special education statute)
Based on the year 2000 changes to Chapter 71B, Massachusetts now generally follows federal standards with some exceptions noted in this Handbook. Many of these changes will be phased into effect in Massachusetts over the next two years. The following key changes are in effect as of January 1, 2001: adoption of federal disability categories with specific reference to federal definitions of learning disability and emotional disability; change to sliding fee scale for independent evaluations; and expansion of jurisdiction of Bureau of Special Education Appeals Hearing Officers to include state agencies. Other changes that deal with funding formulas (effective July 1, 2002) and parent and teacher training requirements are also included in the statute. Perhaps most noteworthy is the Massachusetts change from its original educational standard of maximum feasible benefit and its adoption of the free and appropriate education standard described above. This particular change will not, however, be effective until January, 2002.

Until January, 2002, Massachusetts will continue to operate under its old standard of providing services designed to...assure the child's maximum possible development in the least restrictive environment .... This standard is difficult to measure exactly, but court decisions note explicitly that it does mean some kind of higher standard. Academic advancement (getting good grades and moving from grade to grade) is not by itself, under a maximum possible or free and appropriate education standard, a valid single measure of a program's sufficiency. Rather, the child must be making meaningful progress as measured by that child's educational needs.

Dan Ahearn is an educator and attorney. He works in the education field at the Landmark School, which specializes in teaching students with language based learning disabilities, where he directs the Landmark Outreach Program. He also practices disability, special education, education, and children's law. He has been practicing in these areas for over 15 years. He currently teaches a Children's Law course at Suffolk University Law School; teaches legal research and writing in the First Year Writing Program at the Boston University School of Law; and counsels law students in the Harvard Law School's Office of Public Interest Advising. He was the past Director of the Massachusetts Bureau of Special Education Appeals and served as a Senior Attorney at the Disability Law Center in Boston. He is on the Board of Directors of the Learning Disabilities Network and is a Fellow of the Massachusetts Bar Foundation.

For more information go to A Guide to Special Education