Family & Community Special Communities
Special Education

Preliminary Study of the Special Education Standard for Services - February 2000

Part 5 - Legal Review¹⁴

1. Introduction

   This part of the preliminary study report reviews federal and state law to determine whether the standard for delivery of special education services¹⁵ is a pivotal factor in deciding the level of services provided to students and in making program placements. The results of this review indicate that while administrative and judicial decisions recognize different standards, they do not clearly articulate the differences between standards or what effect such differences have on the level of services provided to eligible students. Decisions instead focus on the needs of individual students and reach conclusions primarily based on the facts presented. Thus, while the standard for delivery of special education services is certainly a factor in determining appropriate services and placements, it is not the only factor nor is it necessarily the most important factor.

   In reviewing federal and state law since 1990, this part focuses first on the federal standard for delivery of special education services, "free appropriate public education" ("FAPE"). Second, this part identifies states whose standards for delivery of special education services exceed the federal standard and analyzes decisions of federal courts interpreting those standards. Third, this part focuses specifically on the standard for delivery of special education services in Massachusetts and examines judicial and administrative decisions interpreting this standard. Fourth, this part examines administrative decisions in six states that address two significant categories of cases: students with autism or pervasive developmental delay ("PDD") and students with learning disabilities. Finally, this part draws some conclusions concerning whether the standard is a significant factor in decision-making and what other factors may drive decision-making.

2. Free Appropriate Public Education

   The Individuals with Disabilities Education Act ("IDEA") and decisions issued by federal courts interpreting the Act have defined a free appropriate public education as education that is individualized and allows a student to benefit. The Act's intent was to open the door of educational opportunity for students with disabilities. The education must be meaningful and must be provided in the least restrictive environment.

   Under IDEA, the term "free appropriate public education" 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; (C) include an appropriate preschool, elementary, or secondary school education in the state involved; and (D) are provided in conformity with the individualized education program . . . . 20 U.S.C. § 1401(8) (1997).

   IDEA defines "special education" 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)(1997). IDEA defines "related services" to include such items as transportation and developmental, corrective, and other supportive services that "may be required to assist a child with a disability to benefit from special education."¹⁶ 20 U.S.C. § 1401(22) (1997).

   The United States Supreme Court interprets the term "free appropriate public education" as the provision of publicly-funded individualized instruction with sufficient support services to permit the student to benefit educationally from the instruction. Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)¹⁷; see also Cedar Rapids Community Sch. Dist. v. Garret F., ___ U.S. ___, 12, 13 (1999); Burlington v. Department of Educ., 736 F.2d 773 (1st Cir. 1984). This education must be provided in the least restrictive environment. Rowley, at 188-89. An "appropriate" education does not mandate that districts maximize the potential of disabled students commensurate with the opportunities provided to other students. Id. at 200; Garret F., ___ U.S. at 11. Rather, Congress intended that the IDEA would "open the door of public education to handicapped children on appropriate terms." Rowley, 458 U.S. at 192. Congress did not intend to guarantee a particular educational outcome. Students are, however, entitled to a program reasonably calculated to enable them to receive educational benefit. Id.

   Since Rowley, federal courts have noted that this access to education for students with disabilities must be "meaningful." Consistent with Rowley, decisions also note that the key to any student's meaningful special education is the development of the Individualized Educational Plan ("IEP") that is tailored to meet the unique needs of the student. Id. at 181.

   Courts that have applied the FAPE standard since Rowley have made clear that it is more than a minimal standard. "Meaningful" access does not occur if an educational program affords an "opportunity for only 'trivial advancement.'" Mrs. B. v. Milford Bd. of Educ., 103 F.2d 1114, 1121 (2d Cir. 1997). A "free appropriate public education" should be "likely to produce progress, not regression." Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir. 1997). "Rowley does not mean that the IDEA is satisfied by affording the student a de minimis benefit." M.C. on behalf of J.C. v. Central Regional Sch., 81 F.3d 389, 393 (3d Cir. 1996). An education that is trivial and insufficient fails to meet the federal standard. Id. The "IDEA imposes a higher standard" than simply whether a program provides the student with "'more than a trivial educational benefit.'" Ridgewood Bd. of Educ. v. N.E. for M.E, 172 F.3d 238 (3rd Cir. 1999). "In short, the educational benefit that an IEP is designed to achieve must be 'meaningful.'" Cypress-Fairbanks, 188 F.3d at 248.

   Thus, the federal standard for delivery of special education services requires careful attention to the needs of the individual student. The FAPE standard mandates that the school district provide personalized instruction tailored to the student's needs, with sufficient support services to permit the student to make meaningful educational progress. Applying the federal standard in individual cases, courts have ordered school districts to provide an extensive array of special education services, including private day and residential placements as well as related services up to and including full-time one-on-one nursing services.

3. Other State Standards

   States may elect to exceed, both substantively and procedurally, the federal IDEA. Burlington, 736 F.2d at 792. Although judicial decisions always recite the applicable statutory language, these decisions provide little guidance on what the particular standard actually means. The student's individual needs, rather than the applicable standard, play the most significant role in determining services. As a result, these decisions look at the state standard and a host of other student-specific variables including the age of the student, the nature of the disability, the appropriateness of the district's program, and the overall complexity of the case.

   The majority of states adhere to the federal standard of a free appropriate public education. See Attachment A for a listing of state standards. A second group of states use statutory language that appears to exceed the federal standard. Courts, however, have interpreted such language as equivalent to the federal standard. A third group of states use statutory language exceeding the federal standard and courts have interpreted this language as doing so.

   Federal courts have issued eight opinions between 1990 and 1998 interpreting state standards that appear to exceed the federal provision of a "free appropriate public education." Four federal court decisions -- interpreting state special education statutes in Kansas, Minnesota, Tennessee, and Oklahoma that referenced a potentially higher standard -- concluded that these states follow the federal standard even though state language may appear to require a higher standard. See O'Toole v. Olathe Unified Sch. Dist., 144 F.3d 692 (10th Cir. 1998) (holding that student with hearing impairments not entitled to maximize potential and therefore parents not entitled to residential placement); Johnson v. Independent Sch. Dist. No. 4 of Bixby, 921 F.2d 1022 (10th Cir. 1990) (in context of whether maximum summer program required for student with autism, court held that state law did not exceed federal standard and remanded case for further findings); Independent Sch. Dist. No. 283 v. S.D. by J.D., 948 F. Supp. 860 (D. Minn. 1995) (adopting magistrate's report holding that district had no obligation to educate student with dyslexia to maximum potential); ESE v. Tullahoma City Schs., 9 F.3d 455, 461 (6th Cir. 1993) (holding that state statute did not mandate a higher standard than federal law and denying private placement for student with learning disabilities).

   In four other federal court decisions -- interpreting state special education requirements in North Carolina, Pennsylvania, New Jersey, and Michigan -- courts have noted a higher standard. See Burke County Bd. of Educ. v. Denton, 895 F.2d 973 (4th Cir. 1990) (court noted that state special education statute expressed policy to ensure that every student receive a full and fair opportunity to reach full potential, but held student with autism not entitled to home-based behavioral program); D.R. by M.R. v. East Brunswick Bd. of Educ., 838 F. Supp. 184 (D.N.J. 1993) (New Jersey has chosen to impose a higher standard of special education than required by theIDEA; case remanded for further findings on whether 1:1 aide necessary)¹⁸ ; Delaware County Intermediate Unit v. Martin K., 831 F. Supp. 1206 (E.D. Pa. 1993) (noting in footnote that Pennsylvania statutes required schools to provide more than "some benefit" of federal standard; therefore student with PDD entitled to Lovaas services); Brimmer v. Traverse City Pub. Schs., 872 F. Supp. 447, (W.D. Mich. 1994) (in case involving student with hearing impairments, state law requires achievement of maximum potential which is more than basic floor of opportunity; student allowed to stay in current placement pending directives by court to ascertain appropriate placement).

   In the eight decisions referenced above, there is no clear discussion of what the higher standard means. Each of the decisions identifies and recites an applicable standard and then focuses on the student's needs. In the four cases using the federal standard, three decisions upheld the district's proposed program and one court remanded the case for further findings. In the four cases using a higher state standard, one decision held in the parent's favor, one decision held in the district's favor, and two decisions remanded the cases for further findings. No decision provided a detailed discussion or definition of the higher standard or, in practical terms, a detailed analysis of the impact of a higher or lower standard on a student's case. Without such a clear discussion, it is difficult to reach conclusions regarding a standard's impact.

   In addition to the potential impact of differing standards, variables such as the complexity of the case, the student's educational profile, the student's disability and its severity, and the program's quality all influenced each decision. Thus, in these cases the student's individual needs play a more significant role than the applicable standard, in determining the services that the court will order.

4. Massachusetts

   Massachusetts has elected to exceed the federal standard for delivery of special education services. Section 1 of G.L. c. 71B defines special education as "educational programs . . . designed to develop the educational potential of children with special needs." Services should be designed to "assure the child's maximum possible development in the least restrictive environment." G.L. c. 71B, §§ 2, 3.

   In interpreting this statutory language, courts have consistently held that the standard in Massachusetts exceeds the federal standard in IDEA. See, e.g., David D. v. Dartmouth Sch. Comm., 775 F.2d 411 (1st Cir. 1985) (IEP for handicapped student must "assure his maximum development in the least restrictive environment"); Burlington, 736 F.2d at ___ (standards exceeding federal incorporated into IDEA). In Roland M. v. Concord Pub. Schs., the U.S. Court of Appeals for the First Circuit attempted to articulate a "yardstick" for measuring an IEP under the Massachusetts standard. 910 F.2d 983 (1st Cir. 1990). After initially citing the federal standard, the court reviewed prior state and federal decisions interpreting the Massachusetts standard. Roland, 910 F.2d at ___. The court concluded that in Massachusetts, "an IEP must address a handicapped student's needs so as to assure his maximum possible development in the least restrictive environment consistent with that goal." Roland, 910 F.2d at 988.

   In assessing whether a student's program meets this standard, the court reasoned that academic advancement by itself is not a valid measure of an IEP's sufficiency. Id. at 991. "Thus, purely academic progress -- maximizing academic potential -- is not the only indicia of educational benefit implicated by either the Act or by state law." Id. at 992. Consequently, the court held the student's parents in Roland were not entitled to placement of their child at a private special education school even though the parents claimed he made greater academic progress at the private school. "The key to the conundrum is that, while academic potential is one factor to be considered, those who formulate IEPs must also consider what, if any, 'related services' . . . are required to address a student's needs." Id. Moreover, an IEP must also balance educational benefit with placement in the least restrictive environment. "Assaying an appropriate educational plan, therefore, requires a balancing of the marginal benefits to be gained or lost on both sides of the maximum benefit/least restrictive fulcrum. Neither side is automatically entitled to extra ballast.¹⁹" Id. at 993. Therefore, an IEP must be "reasonably calculated" to provide an overall appropriate education that encompasses all of these factors and does so in the least restrictive environment.²⁰

5. Administrative Decisions for Specific Disabilities

   Like the judicial decisions discussed above, administrative decisions regarding services for students with autism, or pervasive developmental delay ("PDD"), and services for students with learning disabilities, do not clearly explain what a standard may mean in practical terms. The administrative decisions in general do not turn on what standard is at issue but, rather, focus on the needs of the individual student.

6. Conclusions

   It is unclear whether the use of a "lower" or "higher" standard for delivery of special education services is a pivotal factor in determining placement or services. Three key points emerge and should be considered when assessing an applicable standard. First, as envisioned by the federal statute, each student's case is scrutinized individually. Second, perception of a standard's meaning influences decisions of judges and hearing officers. Third, perception of a standard's meaning also influences actions taken and decisions made at the local level. Thus, while outcomes do not appear to hinge solely on the applicable standard, the existence of the standard, or a change in the standard, may affect the delivery of services in ways that are difficult to quantify.

   With respect to the first point, regardless of the standard, judges and hearing officers decide each case based primarily, and perhaps exclusively, on the student's individual needs and the facts presented. While each decision recites the applicable standard, judges and hearing officers carefully examine factors such as the complexity or severity of a student's profile, the student's age, the student's academic standing, the student's social and emotional development, the student's disability, and the need to assess what is the least restrictive environment. The intersection of these factors with differing standards may affect decisions regarding placement or services. Thus, because of the individualized inquiry required, it is impossible to provide a definitive answer about a standard's overall impact.

   With respect to the second point, the perception of a standard's meaning plays an important role in assessing a standard's impact. Rarely do the parties disagree about the student's disability or general educational needs. More typically, they disagree about the extent to which services are required, and about their perception of what the law requires the district to provide. Likewise, the decisions of judges and hearing officers reflect general perceptions about the meaning of the federal or a higher state standard. Because judges and hearing officers explicitly invoke a higher state standard when it is at issue, any change in the standard necessarily will require courts to reexamine the issue and determine the effect of the change in the statutory standard. Thus, a change to the federal standard will affect perceptions about the meaning of the standard, and may have an impact on administrative or judicial decision-making.

   With respect to the third and final point, perception of a standard's meaning not only influences decisions of judges and hearing officers, it significantly affects decisions made about services at the local level and the resolution of disputes before they go to hearing. Parents and school district representatives discuss and resolve the vast majority of issues relating to a student's education at the local level; appeals and hearings are rare. If the legal standard is changed, it is important to ensure that the new standard does not result in denying students necessary and required services due to an inaccurate perception of the standard's meaning. Thus, a change to the federal standard may affect decisions made at the local level and the settlement of cases before going to hearing, based upon perceptions regarding the meaning of such a change.²¹

   In summary, based on this preliminary review of the case law, it is unclear what effect a change to the federal standard for delivery of special education services would have in Massachusetts. Judges and hearing officers often recite the applicable standard, but one is hard-pressed to find a decision where the court rules, in essence, "If only the federal standard applied, x services would suffice, but since our state has a higher standard, the school district must provide 2x.²²" A review of cases decided under the federal standard indicates that FAPE is by no means a minimal or trivial standard. In fact, in decisions applying the federal standard as well as in decisions applying higher state standards, judges and hearing officers appropriately focus on the individual needs of the students before them, and may order a wide array of special education programs and services. Depending on the individual needs of the student, a student living in a state operating under the federal FAPE standard may receive the same types and amounts of services that a student living in Massachusetts would receive under the MPD standard.

   Nevertheless, while the standard is not the pivotal factor in determining appropriate services for students, a change in the standard may influence perceptions regarding what level of services is required, both at the local level and in cases that reach hearing officers or courts. The vast majority of individual special education plans are written and accepted without dispute. Even when disputes do arise, most are settled by the parties informally or through mediation, without proceeding to administrative hearing or judicial review. (Each year approximately 150,000 individualized educational plans are written for special education students in Massachusetts, and only about 40 cases end up being adjudicated by a hearing officer.) In other words, most decision-making about individual students' special education programs happens at the school level.

   The state guarantee of "maximum possible development" may encourage at least some parents of students with disabilities, and their advocates and attorneys, to advocate that a school district provide more services, or a more intensive or more restrictive program, than the district would provide under a standard of "appropriateness." It is possible as well that school officials may offer additional services or a more intensive program than they otherwise would, based on a calculation of the cost in relation to the cost of potentially going to mediation or hearing on the issue. In short, it is likely that the perception of the MPD standard influences some decisions at the local level by parents and school officials concerning special education programs and services and the settlement of disputes prior to hearing.

   Further study, including interviews with Massachusetts parents, school officials and their attorneys, might shed light on whether the MPD standard is a greater influence than other factors, such as the right to adjudicate special education disputes in administrative hearings and in court, and the right (under federal law) of parents who prevail in such a dispute to have the school district pay their attorney's fees. In addition, it may be useful to examine the experience of other states, such as New Jersey, that have changed from a higher state standard to the federal standard, to assess what impact that change has had on local decision-making and administrative/judicial decisions.

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