Margolis & Bloom
ela-player-horz-200px

blogButton
Find Us On Facebook

Special Education: ‘Medical Model’ or ‘Educational model’ ?

By Ellen Chambers

 

School districts sometimes tell parents they cannot or will not provide certain services for an eligible child with a disability because, they say, the service reflects a “medical model. We are a school so we follow an educational model.”

   

The educational model versus medical model argument is a fabricated construct that school districts sometimes use to avoid their responsibility to provide certain services to a student. There are also many districts who believe that such an argument has a sound legal basis. It does not. There is no reference to either an educational model or a medical model in special education law. A discussion about whether a given service is part of a medical or educational model is irrelevant to the special education decision making process.

 

To be clear, it was never Congress’ intent that schools be responsible for the full range of a student’s medical care. It is well established that services which meet the “medical services exclusion” are not the responsibility of a school district.

 

Medically excluded services are those services that must be performed by a licensed physician. This was articulated clearly in the U.S. Supreme Court case Cedar Rapids v. Garret F., 526 U.S. 66 (1999):

 

“The scope of the ‘medical services’ exclusion is not a matter of first impression in this Court. In Tatro we concluded that the Secretary of Education had reasonably determined that the term ‘medical services’ referred only to services that must be performed by a physician, and not to school health services. 468 U. S., at 892-894.”

 

If a parent is requesting a service for a child and the school district refuses to provide it using the argument: “that’s a medical model” or “that’s a medical service,” the best way to redirect the conversation is to politely point out that:

 

1. Special education law does not recognize an educational versus medical model distinction. Rather, special education law requires that districts provide eligible students with disabilities a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.[1] 

 

2. The relevant discussion, then, is one that explores the question: does the service meet the ‘medical service’ exclusion established by the United States Supreme Court? This is done by asking a simple question:

 

“Can the requested service be performed or provided only by a licensed physician?”

 

If the answer is yes, the school is not responsible for providing it. If the answer is no, the school is responsible for providing it if it is recommended by the Team as necessary in order for the student to receive a FAPE.

 

 

Copyright © 2011 Ellen Chambers. All rights reserved.



[1] 20 U.S.C. § 1400(d)

 

Compensatory Services

By Ellen Chambers 


Every student who is eligible for special education services has an Individualized Education Program (IEP.) The IEP is a written document specific to an individual student that details the content of the student’s educational plan, including information about the services that will be provided for the student, and the specific goals he or she will be working towards.

 

The IEP is a legally binding document. All services described therein must be provided. Conversely, if something is not documented within the IEP, the school has no obligation to provide it.

 

If, for any reason, a school district cannot (or does not) provide the services listed in the IEP, the law requires that the parents be notified by the school district. When services have not been provided, the student may be entitled to “compensatory services.” Compensatory services are services that “make up for” the services the student missed.

 

The manner in which compensatory services are to be awarded is not addressed in special education law, but is decided on a case-by-case basis by parents, schools, and sometimes the Massachusetts Department of Elementary and Secondary Education (MDESE.)

 

Keep the following points in mind:

 

1. A student generally will not be awarded compensatory services unless the lack of those services has had a negative impact on the child’s progress towards his or her IEP goals.

 

2. It is expected and accepted that school staff will miss a service session, here and there, during the year due to illness, family emergencies, etc. Generally, one would not seek compensatory service for these few missed service sessions.

 

3. The number of hours of compensatory service offered will not always exactly equal the number of hours of service that were missed.

 

4. Compensatory services will not be provided when the services missed were the result of parent choice (i.e., family vacations, child’s illness, etc.)

 

If your child has missed IEP services (whether or not you received the required notification from the school) and you feel he or she may be entitled to compensatory services, begin by simply asking your school to provide those services. It is best to make such requests in writing.

 

If your school feels compensatory services are not warranted, and you wish to pursue the matter, you will need to file a formal complaint with MDESE. There is no charge to file a complaint. Do this by calling MDESE at (781) 338-3700. Indicate that you would like to file a complaint because IEP services were not delivered and you wish to request compensatory services. MDESE will send you a brief form to fill out, and you must return the form to MDESE within thirty (30) days[1]. MDESE will then investigate your complaint, and will issue a Letter of Finding that will either agree with the school district’s position, or will instruct the school district to work out a schedule of compensatory services with you. If you and your school cannot agree on a schedule of compensatory services, MDESE will generally impose its own schedule.

 

Your school may not charge you for compensatory services.

 

Copyright © 2011 Ellen Chambers. All rights reserved. 



[1] You must also send a copy of the completed complaint form to your school district.

 

What does ‘Effective Progress’ really mean?

By Ellen Chambers

It is not unusual for a parent or guardian to be told that their child does not qualify for, or no longer needs, special education services because they are making effective progress despite their disability. But what does ‘effective progress’ really mean?

Massachusetts’ special education regulations define ‘effective progress’ as follows:

Progress effectively in the general education program shall mean to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to the chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district. The general education program includes preschool and early childhood programs offered by the district, academic and non-academic offerings of the district, and vocational programs and activities.” 603 CMR 28.02(18)

Carefully examine this definition and you’ll see that ‘effective progress’ means so much more than just passing grades. First, the progress must be commensurate with the student’s individual potential. If a student of superior cognitive ability is earning C- and D+ grades, that student is probably not making effective progress.

The U.S. Department of Education (USDE) emphasized this point by including the following language in the regulations implementing federal special education law:

“Each State must ensure that FAPE [a free appropriate public education] is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 CFR 300.101(c)

USDE also issued this official guidance:

“.... underachievement is measured against the student's own ability, and not against a normative performance standard. Thus, each child's educational needs are determined on a case-by-case basis …” Letter to Lillie/Felton U.S. Department of Education Office of Special Education and Rehabilitative Services. April 5, 1995.

Finally, in its publication Is Special Education the Right Service? (March 2001) the Massachusetts Department of Elementary and Secondary Education has this to say:

“Making an assertion of effective progress is not arrived at through a simple review of the student’s grades. The law requires that the Team use both academic information and non-academic information about the student to determine if the student’s participation in the life of the school represents effective progress. The Team would not be able to … assert that the student is making progress solely because he/she is making passing grades.”

Effective progress is indeed a very high standard.


 

Least Restrictive Enivornment

By Ellen Chambers

Before enactment of special education law, students with disabilities were often lumped together in generic, segregated classrooms away from the ‘normal’ children. Frequently they were taught in basements, trailers, and closets. And it was all perfectly legal. Recognizing the harm done to these students by years of segregated education, Congress included in special education law a strict mandate that they be educated alongside their nondisabled peers to the maximum extent appropriate.  This is referred to as the Least Restrictive Environment (LRE) mandate. The regulation is found at 34 CFR § 300.114(a)(2) and reads: Each public agency [school] must ensure that—

  • (i) To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are non-disabled; and
  • (ii) Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Note that the regulations require students to be included in regular education programming to the maximum extent ‘appropriate,’ not to the maximum extent ‘physically possible.’ This is an important
distinction, intended to safeguard the rights of all students to a quality education. Sometimes schools
will tell parents that the LRE mandate requires them to keep a student in a mainstream in-district classroom regardless of any other factors. This is incorrect. Parents may have to remind the school
that the law requires placement in the LRE that is most appropriate for the student. For many students
a mainstream in-district placement will be their LRE, for others a private out-of-district school may
be their LRE.


Also note that the law requires schools to try adding supplemental aids and services to a student’s
program before moving them to a less mainstreamed setting. This could include additional accommodations or modifications to curriculum or instructional methodology, or even a one-to-one
aide. Parents who are concerned by a school’s decision to move their child to a ‘more restrictive setting’ should always ask the school Team: “have we tried all the possible supplemental aids and
services that might allow the student to remain in a less restrictive environment?”

Other relevant regulations include: In selecting the LRE, consideration [must be] given to any potential harmful effect on the child or on the quality of services that he or she needs.
34 CFR 300.116(d)

A child with a disability [may not be] removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.
34 CFR 300.116(e)

In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods . . . each [school] must ensure that each child with a disability participates with non-disabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must ensure that each child with a disability has the supplementary aids and services determined by the child's IEP Team to be appropriate and necessary for the child to participate in nonacademic settings.

34 CFR 300.117


As with most laws, there are exceptions to the LRE mandate. These include for students in adult prisons and for those who have been properly suspended or expelled from school.

 

What does ‘FAPE’ really mean?

By Ellen Chambers

Eligible students with disabilities are entitled to a “free appropriate public education,” often referred to as a FAPE. FAPE is a standard set by the federal Individuals with Disabilities Education Act of 2004 (IDEA). When we ask whether or not a student with special needs is receiving all the services to which they are legally entitled, we ask, “is the student receiving a FAPE?”

IDEA defines FAPE at 20 U.S.C Section 602(9) as follows: “the term ‘free appropriate public education’ means 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 school, or secondary school education; and (d) are provided in conformity with the individualized education program required under section 614(d).”

Rarely is there disagreement about what is meant by the words ‘free,’ ‘public,’ and ‘education.’ However, as many parents have discovered, interpretation of the word ‘appropriate’ can differ widely among individuals.

So what does a FAPE really mean in the context of special education programming? When the language of the law itself is vague about a concept, such as it is with FAPE, we must turn to administrative and judicial decisions, and be guided by how hearing officers and judges have interpreted the meaning of FAPE. Of great use to Massachusetts parents is a hearing decision issued on August 17, 2001 by Hearing Officer William Crane of the Massachusetts Bureau of Special Education Appeals. The case, BSEA # 01-1222, involved the Gill-Montague Regional School District, and contained the following language:

“The US Supreme Court has stated that the federal standard [FAPE] ‘contemplates personalized instruction with sufficient support services to permit the child to benefit educationally.’ Lower federal courts have further refined their understanding of the requisite benefit to the special needs child, often stating that the benefit must be meaningful or more than minimal. In addition, federal courts, as well as special education law and regulations, have focused on the importance of addressing the ‘unique’ individual nature of the particular child’s needs for special education and related services.”

In another case, Burlington v. Department of Education, 736 F.2d 773, 788 (1984), the First Circuit Court of Appeals (which covers Massachusetts and is the last stop before the U.S. Supreme Court) stated that, concerning FAPE:

“[the] objective is ‘demonstrable improvements in the educational and personal skills identified as special needs,’ educational instruction must be based on the ‘unique needs of the disabled child’ with sufficient support services so that the child will benefit from that instruction.”

 

More than a FAPE

FAPE describes a minimum standard for the provision of special education below which states may not go. All states must adhere to the FAPE standard.

What is often overlooked by schools is the fact that states are free to set their own standards for the education of students with special needs which may meet or exceed the federal FAPE standard. Massachusetts has adopted higher special education standards that exceed FAPE, and districts are absolutely obligated to meet these standards.

Massachusetts special education regulations contain an “effective progress” standard which gives eligible students with disabilities the right to make progress at a rate commensurate with their unique potential, not only academically, but socially and emotionally, as well.1. More generally, the Massachusetts education reform statute, which applies to all students and schools, sets forth the “paramount goal of the commonwealth to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential.”2

So, if a school district should tell you “we only have to provide a FAPE” remind them that there are other, higher standards that they must also meet when providing education for Massachusetts students with special needs.

 

1 603 CMR 28.02(17) Progress effectively in the general education program shall mean to make 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 student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”

2 MGL c. 69 , s. 1.