Dan Ahearn

One of the first questions raised in special education is whether a child is eligible for services. In Massachusetts, children ages 3 to 21 who have not received a high school diploma are potentially eligible for special education?.603 CMR 28.02(9). The initial step in deciding eligibility is the referral of a child for assessment (testing) as to whether he or she is eligible for special education services. To be eligible for services, a child must be have a disability, must not be making effective progress in regular education due to the disability, and either require specially designed instruction or a related service that is necessary to access the general education curriculum (learn regular education material)?.603 CMR 28.02(9). Eligibility determinations are made by the local school district via the TEAM process described later in this Handbook. This section discusses the stages in the eligibility process.

Referral
A parent or any person in a care giving or professional position may refer a child for initial evaluation for special education services?.603 CMR 28.04(1). Upon receipt of a referral, the district must send a written notice to the parents?.34 CFR 300.503; 603 CMR 07(1). This notice must request parental consent for the evaluation and also provide an opportunity for a parent to exchange questions and information with public school employees?.603 CMR 28.04(1)(b).

Evaluation
Once a parent agrees to the initial evaluation or the district obtains authorization to evaluate from a Hearing Officer, ?34 CFR 300.505, then the district must arrange for or provide the evaluation within 30 days?.603 CMR 28.04.(2). A district must conduct an initial evaluation when a referral for special education eligibility is received.

An evaluation must assess all areas of suspected disability as well as assess the child's educational progress and history?.34 CMR 300.534; 603 CMR 28.04(2)(a). The following assessments are required: an assessment in all areas of suspected disability and an educational assessment by a district person. An educational assessment includes a history of the child's progress in the general curriculum as well as assessments of the student's attentional skills, communication skills, memory skills, and social skills. The following assessments are not required but the district can decide to use any of these other assessments: comprehensive health assessment, a psychological assessment, and a home assessment?.603 CMR 28.04(2)(b). The evaluation must summarize test procedures, results, diagnosis, and recommendations which may include types of placements but not specific classrooms or schools.

Disability

• The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, than may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
• The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

The regulations also provide very detailed further steps for a TEAM to follow when it decides whether a child has a specific learning disability. In essence, the regulations walk through a 3 step process required to find that a child has a learning disability.

• The child does not achieve commensurate with his or her age and ability levels in one or more of the areas listed below if the child is provide with learning experiences appropriate for the child's age and ability levels; and
• The team finds that a child has a severe discrepancy between achievement and intellectual ability in one or more of the following areas:
  • oral expression
  • listening comprehension
  • written expression
  • basic reading skill
  • reading comprehension
  • mathematics calculation
  • mathematics reasoning

• a visual, hearing, or motor impairment
• mental retardation
• emotional disturbance or
• economic disadvantage

• At least one TEAM member other than the child's regular teacher shall observe the child's academic performance in the regular classroom setting.
• If a child is less than school age or out of school, a team member must observe the child in an environment appropriate for a child of that age.

• whether the child has a specific learning disability
• the basis for reaching this conclusion
• the relevant behavior noted during the observation
• the relationship of the behavior to the child's academic functioning
• any relevant medical findings
• whether there is a severe discrepancy between achievement and ability that cannot be corrected without special education and related services

Effective Progress
Effective progress means making documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the Massachusetts learning standards?.28.02(18). In essence, each child must be looked on a one by one basis, and the teacher, parent, and evaluator should all have input.

Extended Evaluation
In Massachusetts, if a TEAM determines that it lacks enough information to assess eligibility or to develop a plan for a child, then it may use an extended evaluation option in order to conduct additional assessments (tests) or gather additional information about a child. An extended evaluation may not exceed eight weeks?.603 CMR 28.05(2)(b).

Termination of Eligibility
A parent and a district may agree to terminate or end a child's eligibility for special education. A parent may request termination, but if a district believes that ending special education will deny a child a free and appropriate public education, then the district must go to mediation or hearing to disagree with a parent's request. If a district seeks to terminate eligibility, then it must conduct an evaluation and a TEAM meeting to explain its decision to the parents?.20 U.S.C. 1414(c)(5). If the parents disagree with the district's decision to terminate eligibility, then parents may reject the decision, invoke stay put, and seek relief through dispute resolution. Stay put or placement pending appeal means that a child stays in his or her last agreed upon placement until the parent and district resolve the dispute.

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