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Academic Support and Special Education Eligibility - Question and Answers

Note: Some of the material included in this guidance is no longer binding due to changes in state law. Please call Program Quality Assurance Services at 781-338-3700 for further assistance.

To:   Superintendents, Charter School Leaders, Special Education Administrators, Other Interested Parties

From:   David P. Driscoll, Commissioner of Education

Date:   November 2, 1998


This document is designed to provide information about how special education fits in the continuum of coordinated academic support services for students. By law, special education must be reserved for students with disabilities who need specially designed instruction. The fact that a student needs academic support does not mean that the student has a disability or that the student is eligible for special education. Schools must develop or improve other means of providing academic support for those students who do not have a disability. The questions and answers in this document will assist school districts and the Department of Elementary and Secondary Education in reviewing school district practices to ensure that students are not inappropriately referred nor found "eligible" for special education as a means of providing academic support services.

State and federal law provide the basis for this guidance. In 1992 the Massachusetts special education law was amended to clarify, in General Laws c. 71B, ¤ 1, that a "school age child with special needs" is one who, "because of a unable to progress effectively in regular education and requires special education..." [Emphasis added.] The Department of Elementary and Secondary Education published Eligibility Guidelines for Special Education in 1992, offering guidance on how to implement this important provision of the special education law. In 1993 the Massachusetts Education Reform Act was enacted, directing the Commissioner and the Board of Education to develop curriculum frameworks, academic performance standards and a statewide student assessment system applicable to all public school students. In 1997 the U.S. Congress reauthorized the federal special education law (the Individuals with Disabilities Education Act Amendments of 1997, or IDEA-97). The new federal law clarifies eligibility for special education and the responsibility of schools to include students with disabilities in the general education curriculum. All of these provisions are the foundation for the guidance in this document, which supplements the 1992 Eligibility Guidelines for Special Education.

1. Should a student be referred for special education based solely on the student's MCAS results?

No. Under both federal and state law, school districts are prohibited from using the results of a single test to determine that a student needs special education. For example, the federal special education law, the Individuals with Disabilities Education Act Amendments of 1997 (IDEA-97) specifies that local educational agencies "shall not use any single procedure as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child." 20 U.S.C. 1414 (b) (2) (B). Moreover, IDEA-97 states: "In making a determination of eligibility [for special education], a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of instruction in reading or math or limited English proficiency." 20 U.S.C. 1414 (b) (5).

The best defense against inappropriate referrals for special education is for schools to strengthen teaching and learning in the general education curriculum, and to provide academic support services to students who need them, rather than relying on special education as the only avenue of support for students. Teachers, administrators and parents should be advised that poor test performance is not a sufficient criterion for eligibility for special education.

The Massachusetts Comprehensive Assessment System (MCAS) tests in grades 4, 8 and 10 will provide important data that schools should use to set clear, measurable goals for school improvement, and to develop strategies for helping each student improve individual performance. MCAS results are intended to be diagnostic, to evaluate how well students and schools are meeting the learning standards in the state curriculum frameworks. Individual student results will help teachers, parents and students to focus on areas in which students need to improve their individual performance. At the school and district level, administrators and teachers will use MCAS results to better align their curriculum with the state curriculum frameworks, to improve teaching and learning, and to determine what changes or additions to academic support services should be made to meet the needs of all students. Over the course of the 1998-99 school year, the Department of Elementary and Secondary Education will be offering a series of professional development opportunities as well as fiscal and technical assistance to strengthen the capacity of educators to respond effectively to the needs of their students.

2. If a student needs extra instruction in order to make progress, is that a basis for providing special education?

No. IDEA-97 is clear that special education is not simply additional instruction. Special education is "specially designed instruction," and is specifically for students with disabilities. 20 U.S.C. 1401 (25). (See also Question #7 defining "specially designed instruction.") As noted above, the federal law is clear in stating that a student does not have a "disability" if the "determinant factor... is lack of instruction in reading or math or limited English proficiency." 20 U.S.C. 1414 (b) (5). Additionally, IDEA-97 specifies that the term "specific learning disability" "does not include a learning problem that is primarily the result of ...environmental, cultural, or economic disadvantage." 20 U.S.C. 1401 (26) (C).

In short, the fact that a student needs extra instruction in order to meet the state learning standards does not constitute a basis for declaring that the student has a disability and requires special education. Small group remediation in basic skills, intensive instruction in reading, accelerated instruction in core academic areas -- all these interventions and more can and should be accomplished within the regular education framework, without the need to label the strategies or the students as "special education." In each case, schools must carefully consider whether the need for instruction is based on factors other than a disability.

3. May a student continue in a special education program if the student is not receiving specially designed instruction?

No. Continued eligibility for special education, like initial eligibility, rests on two key factors: (1) the student has a disability, and (2) because of that disability, the student cannot make effective progress in the regular education curriculum and requires specially designed instruction. A student may have a disability, but has acquired the skills and knowledge necessary to make effective progress without continuing to receive specially designed instruction. If the Team reviews all the evaluative data and determines that the student is able to make effective progress without special education, the Team must make a determination of "no special needs." In some cases, students with disabilities who do not require special education will be eligible for services or accommodations under Section 504 of the Rehabilitation Act. (See Question #9 regarding Section 504.)

4. Is a student who only has behavioral problems entitled to special education?

No. The state special education law specifies that "no child shall be determined to be a student with special needs solely because such child's behavior violates the school's disciplinary code." General Laws c. 71B, ¤ 1. Additionally, the federal special education law states that a student who is "socially maladjusted" is not eligible for special education unless it can be determined that the student is also "emotionally disturbed." 34 C.F.R. 300.7 (b) (9). In other words, bad behavior is not a "disability" in and of itself for purposes of special education eligibility. Schools need to take steps to discipline and address students' behavioral problems. However, special education may not be the appropriate route in many cases.

Paragraph 310.0 in the Chapter 766 Regulations may seem to suggest that a referral for special education is required when students manifest certain academic or behavioral concerns. However, ¦310 does not require a referral, but instead requires a consideration by the principal of the school of whether a referral is necessary or whether some other supportive service may be appropriate.

5. If a student needs some type of related service, such as occupational therapy, or speech and language therapy, is the student eligible for special education?

Under the special education law, the need for related services rests on the need for special education, not the reverse. IDEA-97 defines "related services" as " may be required to assist a child with a disability to benefit from special education..." Guidance provided by the U.S. Department of Education states, "if a child does not need special education, there can be no related services...under the Act." 34 C.F.R. 300.17, Note 1.

Information gathered through our Department's Coordinated Program Reviews suggests that in some cases students who have been determined eligible for special education are receiving only related services, not special education. If related services such as counseling, physical therapy, or specialized transportation are necessary to enable a student with disabilities to participate in the regular education program of the school, then the school should provide such services under Section 504 of the Rehabilitation Act. (See Question #9 about development of a "504 Plan.") It is inappropriate to use the special education referral, evaluation and Individualized Educational Plan (IEP) process if a student does not require special education, but simply needs related services.

6. May special educators provide services to students who are not on IEP's?

Yes. Special education personnel are not restricted to providing services only to students with IEP's. No such prohibition exists under state law for state- and locally-funded staff. With respect to federally-funded special education staff, the general rule is still that federal funds may be used only to pay the excess costs of providing special education and related services to students with disabilities. However, IDEA-97 provides new flexibility to schools and districts in two ways. First, they may use federal funds to provide special education and related services and supplementary aids and services in a regular class to a student with disabilities, "even if one or more nondisabled children benefit from such services." 20 U.S.C. 1413 (4) (A). Second, they may use up to five percent of their IDEA funds to develop and implement a coordinated services system designed to improve results for children and families. 20 U.S.C. 1413 (f) (1).

7. Are any and all services provided by a special educator considered, by definition, to be special education?

No. Special education is "specially designed instruction to meet the unique needs of a student with a disability." 20 U.S.C. 1401 (25). Often special educators have specialized training or know of instructional techniques that can be effective for many students, including those who do not have a disability and therefore should not be in special education. The knowledge and skills of a variety of teachers should be used as a resource in designing effective teaching strategies and academic support services for all students.

8. If a student is receiving only "consultation services" from a special educator, is that student properly classified in special education?

No. Consultation is not special education. In some cases, regular educators are providing specialized instruction and special educators are providing consultation services. Such a model may well be appropriate. However, if the only "specially designed" service the student is receiving is consultation, sometimes called "monitoring," then that student is no longer eligible for special education and does not require an IEP. Again, there is no reason that special educators cannot provide consultation or monitoring to students without IEP's.

9. When should a student receive services under Section 504 of the Rehabilitation Act instead of special education?

Section 504 of the Rehabilitation Act is a federal civil rights law that prohibits recipients of federal funds, such as public schools, from discriminating against a qualified individual with a disability, on the basis of that disability. (Section 504 is codified at 29 U.S.C. 794, and the applicable regulations are at 34 CFR 104.) It covers any individual, including a public school student, who has a mental or physical impairment that "substantially limits a major life activity such as caring for oneself or performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working." Section 504 affects the entire school program, regular education as well as special education.

Section 504 requires public schools to provide a free appropriate public education to every qualified student with a disability. In this context, the term "free appropriate public education" means regular education or special education, and related aids and services that are: (a) designed to meet the individual educational needs of the disabled student as well as the needs of a non-disabled student are met, and (b) based on adherence to procedures required by the section 504 regulations. For purposes of Section 504, "related services" are modifications and related services that enable a disabled student to participate fully in the program.

If a student has a disability and needs or seeks an accommodation under Section 504, then the district must evaluate the student. The scope and nature of the evaluation depend on the type of disability and the type of services the student may need. Unlike the state and federal special education laws, Section 504 does not prescribe details about the evaluation process. The services or modifications must be determined by a group of persons knowledgeable about the student. The school must document the decisions about services or modifications to be provided, in what is sometimes called a "Section 504 accommodation plan." The school must review the plan periodically, although Section 504 does not mandate a schedule for the periodic review. Finally, Section 504 requires the school or district to provide due process to the parent, both by providing notice of actions it is taking to evaluate and determine services for the student, and by providing a dissatisfied parent with the right to an impartial hearing. In Massachusetts, Section 504 hearings are handled at the state level by Special Education Appeals in the Department of Elementary and Secondary Education.

Section 504 is broader in its coverage than the state and federal special education laws. For example, it covers regular education programs and activities, not just special education. It is also more flexible than the special education laws in terms of specific procedural requirements. Section 504 (and the analogous provisions of the federal Americans with Disabilities Act) overlap with special education, and add to the continuum of services available in public schools.

If a special education evaluation Team determines that a student with a disability does not need specially designed instruction, but does requires accommodations, or some type of related service in order to participate fully included in the school program, the school must develop and implement a "504 plan" for the student. The 504 plan may identify accommodations such as classroom modifications, special transportation arrangements, assistance with health or medical conditions, accommodations related to physical access or other accommodations that make it possible for a student with a disability to participate in all aspects of school on an equal basis with students who do not have disabilities. A 504 plan can also be used to identify related services such as speech therapy, counseling, occupational therapy or physical therapy, if such services are necessary to ensure the student is able to participate in school.

10. Should our school or school district review our policies and practices based on this new guidance?

Yes. The guidance in this document is based on federal and state law, and district policies or practices that are not consistent with it will need to be changed. The Department will be taking several actions in order to ensure that districts' eligibility practices are consistent with the requirements of the law:

(a) Coordinated Program Review: Starting in school year 1999-2000, when the Department visits schools and districts as part of our monitoring responsibilities, both file reviews and interviews will incorporate consideration of eligibility practices as discussed in this document. The district will be required to demonstrate that staff have been informed about and are implementing the appropriate process and standards for determining a student's eligibility for special education. Additionally, the coordinated program review will examine the district's procedures and activities related to compliance with Section 504 of the Rehabilitation Act and the extent to which the district addresses the needs of students with disabilities who do not require special education.

(b) Child count: Each year school districts provide a "count" of children who have been found eligible for special education and are receiving services. This "count" is provided as part of our data collection responsibilities for IDEA-97 and is reviewed during our program review visits. Beginning in school year 1999-2000, the instructions for the child count will specify that school districts may not count in special education students who do not receive direct special education services. In December 1999 and January 2000, the Department will review the child count information provided by districts and will audit selected districts to ensure that students who are identified as receiving services are, in fact, receiving direct special education services.

(c) Funding: The measures outlined in this advisory are, in part, aimed at reducing the number of students inappropriately placed in special education. Therefore, some school districts may be concerned about whether implementing these steps will reduce their federal special education entitlement award. Our intention is to promote and support a broad continuum of academic support services as well as appropriate eligibility practices. Therefore, during the 1998-99 school year and thereafter, the Department will seek to mitigate any negative financial impact on districts, including considering providing additional funds under the special education discretionary grant program, providing differential allocations to districts that demonstrate effective practices, disbursing funds under the new state grant program for academic support services for students demonstrating poor performance on the state tests, and providing technical assistance to increase the effective, coordinated use of existing resources.

If you have any questions about this information, please contact the Department of Elementary and Secondary Education at (781) 338-3000.

Last Updated: November 2, 1998
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