Special Education Law – How it is & How it should be:

Since the late 1970’s, it has been law everywhere in America that local public school districts are required to provide “whatever a child needs in order to learn”. In most of the United States, the law that says this is a Federal one (originally PL 94-142, now IDEA-97). Certain states, including Massachusetts (originally Ch. 766, now Ch. 71B), have their own laws which are more narrowly defined and therefore supersede the Federal one. What I am going to say in this section, except as otherwise noted, applies to the situation in Massachusetts at the current time, although, much of it is also applicable to the rest of the nation.

The first thing that is important to understand about these laws is why they were originally written. Prior to the late 1970’s, many children in this country with severe disabilities (Mental Retardation, Down’s Syndrome, etc.) were simply “warehoused” rather than educated. They were placed in separate classrooms or in separate institutions and given custodial care, little more than baby-sitting. Little or no attempt was made to teach them anything. At that time in our history, LD’s were not even thought about, hardly a “blip on the radar screen” for politicians or public schools.

The laws currently applied to Learning Disabled students were not written for them. They were written with the much more severely handicapped in mind. They were written to end warehousing of the mentally retarded. They said two things – First, that an attempt to educate these children must be made to some reasonable degree (see below). Second, that to the extent possible, these children should be “mainstreamed” (the legal phrase used for this was “educated in the least restrictive setting possible”). The law in this regard has largely succeeded. Today we have a society, not just in the public schools but throughout our culture, in which handicapped persons of all stripes are far more integrated than they once were. Nobody argues but that this is a good thing. However these laws, written to end the warehousing of severely disabled individuals but subsequently applied to LD students as well, have worked much less well for the Learning Disabled population. (See “Who Qualifies” and “Inclusion vs. Pullout” below).

A few years ago, the regulations in Massachusetts governing Special Education (SPED) were revised. The revisions generally favored school districts and their budgets at the expense of families whose children had special needs. They focused on “who qualifies“, tightening up those requirements and giving schools more control over spending. This was justified by supporters of the changes by pointing out that Massachusetts has one of the highest percentages of children in SPED of any state in the country. In my opinion this really missed the important points, however. It is very hard to “codify” a system of SPED qualification – each situation is different, calling for individual case-by-case judgment with lots of parental input. It would be much better to debate WHO PAYS and WHO DECIDES rather than “who qualifies“.

The major flaws in current SPED law, it seems to me, are:

  • It puts responsibility for evaluation and deciding “who needs what” in the hands of the very same people who are responsible for delivering services and administering SPED budgets, creating the conflict of interest described earlier.
  • It mixes up the two separate issues of clinical need and who pays. Public school staff have no legal way of saying to a parent, “Yes we think your child would benefit from that, but we can’t afford to pay for it.” Thus, when a service has to be denied for budget or staffing reasons the school is forced to make the often dishonest case that the child doesn’t need or wouldn’t benefit from it.
  • It sets up a “competition” at the local level between regular & special education budgets, so that serving SPED kids better means sacrificing the quality of regular education programs.

To solve the first problem, I would propose establishing a procedure for state “accreditation” of private LD evaluation centers (which would allow standardization of and state input into what sorts of testing and diagnostic criteria are used). I would then take evaluation, needs determination, and IEP writing out of the hands of local schools altogether, and give it to the evaluation centers. They could evaluate the child and write up their objective findings/recommendations in an IEP-like format that could be taken to the local school to be “filled” much like you take a prescription to the drugstore.

In order for the above to work, however, local schools need a guaranteed source of funding to fill these “prescriptions” which doesn’t threaten the remainder of their programs and budget. We need to have an honest conversation about who should pay for what. Guaranteed funding for such services already exists under age 3, in the form of law requiring Health Insurance to cover all services (and the state to pay when children have no insurance) determined to be necessary and delivered by certified Early Intervention programs. We need to extend these same guarantees throughout childhood – or find some other separate SPED funding mechanism. Many ways to do this could be proposed, for example, requiring Health Insurance to pay for the evaluations and any OT, PT, Speech Therapy, Communication Technology, medical or psychological care needed, while having state reimbursement available to local schools for increased educational costs in SPED kids. The latter might include funds for things like tutors, specialized staff or staff training, LD teacher salaries, alternative textbooks, educational software, and other specialized classroom equipment/supplies.

I would encourage anyone who cares about these issues in Massachusetts to contact their state legislator or the Mass. Dept. of Education. Tell them simply that giving schools more control and tightening eligibility will not fix the problems, that they need to SEPARATE NEEDS DETERMINATION FROM SERVICE DELIVERY and ESTABLISH GUARANTEED FUNDING SEPARATE FROM REGULAR EDUCATION when they “reform” Special Education.

Click here to read a letter on this subject written by Dr. Ansel to the Mass. Dept of Education at the time they were considering the above regulation changes.

Click here to go to the web site of the best law firm in Massachusetts specializing in SPED law.