Family & Community Special Communities
Special Education

Administrative Advisory SPED 2002-1:
Requirement to Review Refusals to Evaluate for Special Education EligibilityGuidance on the change in the special education standard of service from "maximum possible development" to "free appropriate public education" ("FAPE")
Effective January 1, 2002

In the summer of 2000, the Massachusetts special education law, Mass. Gen. Laws Chapter 71B, was amended to change the special education standard of services from the current "maximum possible development" (sometimes referred to as "maximum feasible benefit") to the federal standard, "free appropriate public education" ("FAPE"). The change is effective as of January 1, 2002. This memorandum is intended to help school officials, parents and other interested parties understand the effect of the change and apply the FAPE standard, consistent with state and federal law.

The FAPE standard has been part of the federal special education law since 1975, and it is well-established in educational practice and case law. In amending the Massachusetts special education law to align it with the federal standard, the Legislature indicated its intent was to ensure that our public education system provides high standards for all students, including students with disabilities. The Education Reform Act underscores the Commonwealth's commitment to assist all students to reach their full educational potential. Improving educational outcomes for students with disabilities is a goal of the state and federal special education laws, and improving educational outcomes for all students, including students with disabilities, is central to education reform.

"Free appropriate public education" is defined in Mass. Gen. Laws Chapter 71B, § 1, effective January 1, 2002, as follows:

special education and related services as consistent with the provisions set forth in 20 U.S.C. 1400 et seq. [the federal Individuals with Disabilities Education Act, or IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the Board of Education.

Under the federal Individuals with Disabilities Education Act, at 20 U.S.C. § 1401(8), 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.

The United States Supreme Court has interpreted 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 instruction¹. This education must be provided in the least restrictive environment. Subsequent federal cases have held that this access to education for students with disabilities must be "meaningful." The 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.

The FAPE standard for delivery of special education services requires the school district to provide personalized instruction tailored to the student's needs, with sufficient support services to permit the student to make meaningful educational progress. The special education and related services are to be provided in conformity with the student's IEP and consistent with state requirements. Applying the federal FAPE 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.

The central principles and requirements of state and federal special education law in Massachusetts will be unaffected by the change to the FAPE standard in January 2002. For example, the following elements are unchanged:

• Massachusetts education standards. Both the state and federal definitions of FAPE (quoted on page 1) refer to special education and related services that meet state education standards. The state standards include not only the requirements of the Special Education Regulations (603 CMR 28.00) but also the learning standards that Massachusetts has established through the state curriculum frameworks. All students in the Commonwealth's public education system, including students with disabilities, are entitled to the opportunity to learn the material that is covered by the academic standards in the Massachusetts curriculum frameworks.

• Eligibility for special education. The change to the FAPE standard will not affect eligibility for special education, since the standard relates to services provided after a student has been determined to be eligible for special education. Eligibility criteria are defined in the special education statute and regulations. Eligible students are those who, because of a disability, are unable to progress effectively in the general education program without specially designed instruction or who are unable to access the general curriculum without a related service. To determine a student's eligibility, the school district evaluates the student and convenes a Team to meet and review the evaluation information and make a determination of eligibility in accordance with the Special Education Regulations, 603 CMR 28.00.

• Individualized evaluation and educational plans. State and federal law continue to require school districts to focus on the unique needs and strengths of the individual student through the Team evaluation and IEP process. The change to the FAPE standard maintains that focus. State and federal law have required, and will continue to require, the school to provide a program that will benefit the student educationally.

• Procedural rights and responsibilities. The change in the standard does not affect the procedural safeguards provided under the law. These safeguards include the requirement for parental notice and consent before changing a student's special education services or placement; the right of parents to obtain an independent evaluation of their child; and the right of parents and school districts to seek resolution of disputes through mediation and administrative hearings. A current IEP that has been accepted by the parent continues to represent an agreement for services between the parent and the school district. The change in the standard on January 1, 2002 does not change existing IEPs.

• Least restrictive environment. The requirement to provide special education and related services to students with disabilities in the "least restrictive environment" has been part of the state and federal special education laws since they were first enacted. This requirement continues in effect even after January 1, 2002.

The change to the FAPE standard may or may not have an impact on costs over time, since court decisions make clear that FAPE is not a minimal or trivial standard. Most states have been operating under the FAPE standard for years, and many states besides Massachusetts have been struggling with the high costs of special education. In Massachusetts, the Legislature and the Governor have sought to provide fiscal relief to local communities through a combination of a new special education reimbursement program and substantially increased funding for schools through Chapter 70 and other programs. The U.S. Congress has indicated that it will revisit funding for the states when it addresses reauthorization of the federal special education law.

We do not yet know whether and how the enactment of the FAPE standard may affect decisions in special education appeals cases, either at the administrative level (through the Bureau of Special Education Appeals) or in court. While hearing officers and judges must decide cases under the applicable legal standard, a review of decisions in Massachusetts and in other states indicates that the outcome depends on many factors, including the complexity and severity of the student's disability, the student's academic progress, and the need to assess what is the least restrictive environment in which the student can receive appropriate education.

The vast majority of IEPs are written, accepted, and implemented without dispute, with educators and parents working together in the best interests of the students. Each year, over 150,000 IEPs are written for special education students in Massachusetts, and fewer than 1% result in requests for mediation or an administrative hearing before the Bureau of Special Education Appeals. Disputes over IEPs are rare and even when they arise, most are resolved by parents and educators at the local level. This will continue to be so under the FAPE standard.

The change in the Massachusetts special education standard to FAPE is not expected to result in major changes in IEPs or placements. It remains to be seen whether the change has an impact on costs. In some individual cases, over time, school districts, parents, and hearing officers may make decisions about services or placements based at least in part on the FAPE standard. The Department of Elementary and Secondary Education will be reporting to the Legislature each year on special education, and we will include data and observations related to the change in the standard in subsequent reports.

In conclusion, the federal Individuals with Disabilities Education Act was amended in 1997, specifically to raise expectations and increase educational achievement of students with disabilities. The Department of Elementary and Secondary Education believes that the change to the FAPE standard in Massachusetts should help educators and parents to focus on providing programs and services that are of high quality and that will improve student achievement.

¹ Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982); see also Cedar Rapids Community Sch. Dist. v. Garret F., 526 U.S. 66 (1999); Burlington v. Department of Educ., 736 F.2d 773 (1st Cir. 1984).