Chapter 766 is 50 Years Old; Are Its Purposes Being Achieved?

by Robert K. Crabtree, Esq.

Governor Frank Sargent signed Chapter 766 into law on July 17, 1972. With a two-year delay to allow for school systems to upgrade their special education services and procedures, Chapter 766 aimed to ensure that children who were unable to learn effectively because of intellectual, emotional, or other challenging conditions would be provided with specialized instruction and supports in environments designed to ensure their progress in accordance with their learning potential. The new law required: (1) that children who were thought to be struggling with particular learning, emotional or other challenges be evaluated by experts; (2) that teams of educators, evaluators and parents consider and act on the findings and recommendations of such evaluations; (3) that individualized programs and placements be developed to enable children to progress despite their disabilities; (4) that parents be afforded the right to independent evaluations at their school systems’ expense if they disagreed with the school’s evaluations; and (5) that disputes that could not be resolved locally may be adjudicated by impartial hearing officers on appeal. 

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Twice before on key anniversaries of Chapter 766, we have invited interested persons to comment on how effective Chapter 766 has been in its implementation over the decades, on what problems have arisen and from what quarters (e.g., courts, BSEA action, later legislative amendments, and so forth), and on what solutions might still be needed to improve the legislative underpinnings and the effectiveness of the law. Click here to view comments from the 45th anniversary and here to view comments from the 40th.

Since the last round, Chapter 766 has, like all other aspects of our communal lives, been sorely tested by the onslaught of the Covid-19 pandemic and its evolving variations. Children and their educators have had to adapt to learning and teaching by internet protocols, and much of the result has constituted a frustrating and, in some cases, impossible ordeal, especially for children who desperately need in-person, hands-on teaching and an environment where both academic and social navigation skills can be taught and practiced in real life. 

How have the standards, procedures and protocols that are fundamentally set out in Chapter 766, IDEA and their regulatory frameworks held up in the midst of the COVID-19 pandemic? It is our impression that though shaken as if by a series of earthquakes, the essential structure of these laws has held – the building stands though bent and broken in places. Nonetheless, children with the sorts of challenges that special education law is designed to address have suffered disproportionately, and of those, children and families from groups that historically have been victimized by discrimination have suffered even more from the lack of in-school, hands-on teaching. In addition, many children who would probably have progressed normally under ordinary conditions have been so undermined by the isolating conditions of the pandemic and by ineffective on-line teaching efforts that they have themselves developed identifiable disabilities – emotional, behavioral and learning challenges – that now must be addressed.  IDEA and Chapter 766 protocols are still there to meet those children’s needs, but the growing numbers of children in need of specialized instruction and supports must be attended to and the system expanded to ensure that their needs will be met. 

As when we asked the question before, we think that Chapter 766 has succeeded in reducing stigma, teaching to the needs of many more children effectively, and enabling parents to play an effective role as members of their children’s teams. Also as before, however, we must point out that some legislative and judicial setbacks have undermined the reach and power of the law. These include the actions of the Massachusetts legislature in 2001 that reduced the required standard for the quality of a child’s services from maximum feasible progress to the federal standard, now vaguely worded by the Supreme Court in Endrew F. v. Douglas Cnty. Sch. Dist., 137 S. Ct. 988, 1001 (2017), as that “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances”; the decision of the Supreme Court in Schaffer v. Weast, 546 U.S. 49 (2005), that effectively placed the burden of proof on parents instead of schools in special education disputes; the Supreme Court’s decision in Buckhannon v. West Va. Dep’t of Pub. Health & Human Res., 532 U.S. 598 (2001), that undermined access to the courts in civil rights cases by conditioning plaintiffs’ entitlement to recover attorney’s fees on their obtaining a court order in their favor (thus undermining the chances of settlement in many cases and depriving parents of fees even when their legal action was a catalyst to settlement); and another Supreme Court decision, Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006), holding that, even when a parent wins in court, parents are not entitled to recover their expert witness expenses along with their attorney’s fees. Each of these disappointing Supreme Court decisions could be effectively set aside if the state legislature were to set a different standard. There have been efforts to do so in Massachusetts; to date none has succeeded. Parents and advocates should not abandon these efforts, however, but should take heart, stay organized, and press ahead in the spirit of the original Chapter 766.

When we asked our question in 2019 (45 years after the effective date of Chapter 766), Larry Brown, Ph.D., who had served as the head of Massachusetts Advocates for Children for years, provided an answer that rings just as true today. He said: “It would be a terrible mistake to judge 766 by looking only at what still needs to be done, because more will always need to be done. All of us together pulled off a revolt against the ugly status quo that was rather quickly begun by locking in rights and due process procedures for children with special needs, thus altering the responsibilities and expectations of public schools forever. And it is a revolution that will last because of the power of parents and advocates that embodied it. Like all revolutions, it began from the ground up and involved ordinary people from many different walks of life. We were naïve, we were resolute, we were demanding, and we learned as we went. But this is always the way of monumental social change movements. Ordinary people embody the most extraordinary capacities of humans, and we began something that will never end but will always have to be nurtured in order to sustain it.”

Our recently departed colleague, and my friend for more than 53 years, Larry Kotin, would say – as he did when he first read Larry Brown’s comment – “Amen to that”!!

Robert K. Crabtree is of counsel within the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.  He is a founding member of the firm.

Thoughts of Our Departed Friend, Larry Kotin

by Robert K. Crabtree, Esq.

I write with sadness at the passing of my friend and colleague Larry Kotin on May 12 at the age of 81, and also with deep gratitude for our personal and working relationship of more than 52 years.

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I met Larry in 1970 when he worked with the Massachusetts Law Reform Institute (MLRI). I was in my first year as Research Director for the Legislature’s Joint Committee on Education. Larry came by with a proposal to provide for community control of schools within urban districts – a mechanism by which residents could assume some share of governance over their local schools.  Though we talked a few members into signing on, the legislation quickly foundered on the rocks of complexity, squabbles over power-sharing in school districts, and cost. 

But the relationship that began with that undertaking was just the beginning!  Larry’s purposeful enthusiasm and sense of mission and his facility with the language of law and policy struck quite a responsive chord in me that led to a collaboration we proceeded to enjoy for more than fifty years. That working relationship was marked throughout by Larry’s deep kindness, sharp creativity, and enduring commitment to finding ways to direct governmental resources toward effectively serving the needs of underserved populations. 

Chief among the products of our early collaboration was the signing of Chapter 766 into law by Governor Frank Sargent on July 17, 1972 – 50 years ago. Working through MLRI, Larry had been assigned to the Massachusetts Advisory Council on Education (MACE). His mission was to analyze the patchwork of statutes then in effect concerning special education in the Commonwealth and to design model legislation to reform that deeply flawed system. Larry’s proposed statutory models served as the proto-drafts for an entire new structure which aimed to ensure that the teaching and supports that a child receives would be based on individualized expert evaluation of the child’s particular needs and potential and would be designed according to the best current pedagogical science. More, in a turn that was much in keeping with the “power to the people” spirit of those years, Larry’s drafts sought to establish a powerful set of parental rights: (1) to participate throughout the evaluation, planning, and implementation of special education services; (2) to secure publicly funded second opinions by independent experts when parents did not agree with the school’s own evaluations; and (3) to appeal a school system’s actions or failures to act to independent adjudicators (BSEA hearing officers) when necessary.   

At the same time, my boss, Rep. Mike Daly of Brighton, who was sitting as a member of the Task Force on Children Out of School (now the Massachusetts Advocates for Children), assigned me to research special education reform options from the MACE study and other resources around the country and to piece together a draft proposal to rebuild from the ground up the Commonwealth’s system for educating and supporting children with disabling conditions. The resulting draft legislation was filed by Rep. Daly with Speaker David Bartley. After an extensive vetting involving numerous meetings with stakeholders across the Commonwealth and the adoption of a number of key amendments (including a “purpose” section that I recall drafting on the floor of my apartment at the time!), it was signed to become Chapter 766. That statute changed lives not only in Massachusetts but across the nation, as it became the model for the federal special education law now known as the Individuals with Disabilities Education Act (IDEA).

The core of Larry’s ideas survived the meat-grinder of the legislative process intact, and the changes that grew out of the legislative process leading to enactment greatly strengthened the resulting statute. In that process, as his original work was altered amendment by amendment, Larry and I conferred countless times with each other and with other key advocates, especially including Speaker Bartley’s staff member Connie Kaufman and, leading the charge for parent advocacy groups, Martha Ziegler, who became the founder of the Federation for Children with Special Needs, and equally eloquent and passionate members of the Task Force, Larry Brown and Hubie Jones. Throughout this process Larry put ego aside and never second-guessed the changes that had to be made to satisfy the competing demands of the initiative’s many stakeholders in order for the bill to reach the Governor’s desk. As he sometimes observed during lunchroom conversations over current affairs, the perfect is too often the enemy of the good. In the case of Chapter 766 the great good wrought by its robust overhaul of special education law was certainly worth the price of a few concessions.

Skipping ahead to 1980, Larry found me working at a large corporate law firm and invited me to lunch on the Boston Common one day to discuss an idea he had for creating a new general practice law firm. His vision was that it would not be a “boutique” serving only the needs of families with children or adults struggling with disabilities but would provide quality legal services of all kinds – real estate, corporate, employment, estate planning, intellectual property, and so forth.  The idea was brilliant, as it turned out. As we have found over some 41-plus years as Kotin, Crabtree & Strong, LLP, maintaining a core practice in special education and disability law has provided a great cross-fertilization of legal skills and, frankly, business appeal that has served our clients and our attorneys extremely well. I credit Larry with the amazing foresight to imagine this business model could work. Perhaps his young years helping his dad delivering milk and collecting bills in upstate New York seeded a unique array of skills and interests in Larry that helped him marry his commitment to education reform and equal justice to a practical business sense that was key to our firm’s success.

As an advocate, Larry modeled kindness, humor, and sharp intelligence in the service of our clients. With adversaries, clients, expert witnesses, and fellow advocates alike, he was unfailingly positive, respectful, and creative in the search for solutions to our clients’ needs. He also brought a quirky sense of humor to the work that often enabled people in difficult conversations to move to solutions. 

Larry had a charming, wry, and self-effacing sense of humor. He loved to tell of receiving a report card in elementary school on which the teacher wrote “Lawrence tries hard!” He frequently offered diagnoses, albeit unlicensed – of himself, of his colleagues … of anyone, really, with whatever arm-chair psychiatric label he thought fit the subject – tongue in cheek, of course. Working with law students and young attorneys, he insisted, also tongue-in-cheek we supposed, that one was not sufficiently committed to the work of an attorney if s/he was not waking at three in the morning to worry about a case. With all that, he put family above all other priorities and guarded his time with them and in pursuit of activities to refresh his soul (he tried the trombone, he danced, he ice-skated, he developed a stand-up comedy routine …). In that light, he sometimes reminded his colleagues, as we aged, of Mark Twain’s observation that “the graveyards are full of indispensable people.”

Even at this length, I have only touched the surface of our friend’s many ways of making this a better world. He did – always – “try hard” … and by God, he succeeded. 

With love and gratitude, I wish him rest and peace.

Bob

Robert K. Crabtree is of counsel within the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.  He is a founding member of the firm.

New BSEA Commentaries Available!

Each quarter, KCS attorneys provide the official commentary on BSEA rulings and decisions. The 4th quarter 2020 commentary, written by Daniel Heffernan, is now available and includes an analysis of the FY 2020 BSEA Statistics.  Please take a look! The 3rd quarter 2020 commentary, written by Eileen Hagerty, is also available and includes an analysis of a complex decision (Nashoba Public Schools) in which parents prevailed despite their district’s stubborn refusal to provide a residential therapeutic placement for an elementary student with multiple disabilities. Read the 3rd quarter commentary here!

FISCAL YEAR 2020 BSEA STATISTICS AND TRENDS

The BSEA statistics for Fiscal Year 2020 and the overview given of the year by BSEA Director Reece Erlichman provide interesting insights into not only the invaluable work of the BSEA, but also into some trends into the subject matter of special education disputes in the Commonwealth.

Providing yet another example of the never-seen before Covid-19 effects, for the first time in the BSEA’s existence, the number of rejected IEPs actually declined.

Rejected IEPs
FY20 – 9,442
FY19 – 11,979
FY18 – 11,900
FY17 – 11,400
FY16 – 10,800

While the number of hearing requests had basically stabilized over the last few years at around 500, FY20 saw a precipitous drop in the number of hearing requests.
FY 20 – 379
FY19 – 483
FY18 – 481
FY17 – 495
FY16 – 568
FY15 – 492

Matters going through full hearings resulting in written decisions were consistently around 50 per year until they declined significantly after FY13. FY18 yielded the lowest number of full hearings (13) since the early days of the BSEA. The consensus is this was attributable to two factors. First, and most significantly, is the number of matters going to settlement conferences and the effectiveness of Reece Erlichman in getting those matters resolved. Second, was the use of pre-trial motions to resolve matters completely or position them for resolution. Settlement conferences were held in 68 of the cases that were filed for hearing in FY20 (as compared to 67 in FY19 cases), of which 62 were resolved the day of the settlement conference. Although the number of hearing requests filed in FY20 was over 100 fewer that FY19, the number of matters going to full hearings with written decisions was identical.

FY20 – 19
FY19 – 19
FY18 – 13
FY17 – 22
FY16 – 23
FY15 – 18
FY14 – 25
FY13 – 52

Of the 19 decisions noted above, Parents fully prevailed in 4. Parents had counsel in 3. The School Districts fully prevailed in 10 and of those, Parents had counsel in 3, an advocate in 1, and were pro se in 6. 4 cases yielded mixed relief, with Parents having counsel in 2, and pro se in 2. 1 decision involved an LEA assignment.

The BSEA conducted 77 facilitated IEP Team meetings in FY20 (with 8 un-met requests), a decrease from the 114 conducted during the previous year.

There were 573 mediations conducted in FY 20 (another significant decrease – down from 714 in FY19), with an agreement rate of 83%.

Since BSEA filings are confidential, the only publicly accessible information about those is what can be gleaned from the relatively small number of written decisions about some of the cases. However, Reece Erlichman has provided insight into some of the trends reflective in the bulk of the filings. There was an increase in filings regarding providing services in the Least Restrictive Environment (“LRE”), typically involving Parents resisting efforts to move the student into a less inclusive setting. There was a bump in the number of requests involving students with hearing impairments and a continued significant number of filings involving the responsibilities of state agencies, such as DMH and DDS.

A full review of the BSEA statistics from the past 10 years can be found at https://www.mass.gov/bsea-statistics.

A NOTE OF GRATITUDE
We take this opportunity to express immense gratitude to the BSEA. When we consider how various entities and individual responded to the Covid-19 crisis, the BSEA stands out as one of the most remarkable ones. The BSEA, certainly not blessed with the resources of other governmental agencies, didn’t miss a beat. Due to the commitment, vision, and hard work of the BSEA director and hearing officers, the BSEA’s assistance in resolving disputes about the provision of special education services continued without pause. For this, our community is eternally grateful.

We would like to highlight the significant contribution of one hearing officer, Ray Oliver, who retired near the close of FY20 after forty-one years at the BSEA. Ray demonstrated a deep passion for moving adversaries beyond their proud inflexibility as they prepared to do battle in hearings before him. He was truly masterful, most often in pre-hearing conferences but even the day hearings were to begin, in guiding parents, school administrators, and attorneys out of their steadfast certainty to a recognition of various shortcomings. More importantly, Ray was able to so often to get the varied people involved to recognize the long-term costs for both sides of fighting to the bitter end, especially when young children were involved and the parties had many years of dealing with each other ahead of them. His pragmatism and genuine concern for the human costs of litigation spoke volumes to the parties and counsel, and much more often than not, led even the most adversarial and zealous advocates to fair and practical compromise. We are grateful for having the great fortune of practicing before such a fine man and wish him all the best.

Daniel T.S. Heffernan, Esq. is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

COVID-19 Compensatory Services: What Are They and Will Your Child Receive Them?

Compensatory education is a well-established remedy for deprivations of special education services, recognized in Massachusetts at least since Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184 (1st Cir. 1993).  The purpose behind compensatory relief is to make the student whole by providing services that place the student in the position that he or she would have occupied if the services been delivered in a timely manner.  The remedy is an equitable one that has been characterized as broad and flexible.  In some cases, school districts (or, when disputes occur, courts, administrative hearing officers, and state complaint agencies) have used a “one-for-one” approach, calculating the hours or days of services that the student missed and ensuring that the student receives compensatory services of the same type and in the same amount.  At other times, compensatory services may differ in type or amount from those the student missed, with the goal of redressing the deprivation by meeting the student’s current needs. Continue reading

A Concerning Trend: Massachusetts Districts Asking Parents to Waive Special Education Rights

In a recently published article, the Boston Globe reports that during this past spring, many school districts across the state asked parents to forgo their children’s special education rights by signing waivers releasing the districts from important special education obligations. These waivers have included releasing districts from providing IEP-related services and programming, conducting special education assessments, and issuing IEPs within state and federal timelines. That districts would request such waivers is concerning enough, in light of clear federal and state guidance that districts must adhere to these obligations despite the COVID-19 crisis. Further concerning is how districts have presented these waivers. Attorneys, parents, and advocates have stated that districts have portrayed the signing of these waivers as a necessary condition for parents to get IEP Team meetings scheduled or for certain services to continue. As a result, many less informed or less assertive parents consented to the waivers, misled by the districts to believe that they had no choice but to do so if they wanted their children to receive assessments, services, or meetings to which the families were in fact already entitled. Continue reading

Uncharted Territory: What Will School Look Like for Special Education Students in the Summer and Fall of 2020?

As most Massachusetts residents know, on March 15, 2020 Governor Charlie Baker ordered all public and private schools in the Commonwealth to cease in-person instruction through April 6, 2020.  That restriction was later extended through the end of the 2019-2020 school year.  The Massachusetts Department of Elementary and Secondary Education (“DESE”) directed school districts to provide students (including special education students) with remote instruction during that time.  With the 2019-2020 school year drawing to a close, DESE been considering summer school programs and looking toward the reopening of school in the fall.  DESE has issued the following guidance on those subjects:

All four documents may be found at http://www.doe.mass.edu/covid19/on-desktop.html. Continue reading

BSEA Issues New Standing Orders Addressing COVID-19-Related Issues

The Bureau of Special Education Appeals (“BSEA”), the state’s administrative body that handles special education cases, has recently issued Standing Orders to address the challenges presented by COVID-19. In order to comply with federal and state mandates requiring that special education timelines be maintained during this global pandemic, the BSEA has ordered that it will continue to hold resolution proceedings (which include Due Process Hearings). In light of the state’s closure and re-opening plans, these resolution proceedings shall be done remotely or virtually and not in-person until further notice. Any requests for a change in date of the resolution proceedings, location of the proceedings, and/or mediums from which to conduct these proceedings must be made to the individual Hearing Officer assigned to the case. Continue reading

Public Toxins and the IDEA: In Quest of an Accountable Economy and a Fully Funded IDEA

In a recently published article for Newsline, a publication of the Federation for Children with Special Needs, Bob Crabtree reflects on the slow process between the time that a substance is recognized as toxic to children and the time that legislatures act (if they act at all) to regulate its use, and the resulting harm to children.

In the article, Public Toxins and the IDEA: In Quest of an Accountable Economy and a Fully Funded IDEA, Mr. Crabtree discusses the implications of this regulatory failure for disability advocacy, with emphasis on the need for a robust independent regulatory system to determine the possible neurodevelopmental effect of materials before those materials are allowed in the marketplace. In addition, Mr. Crabtree argues that Congress must fully fund IDEA to provide adequate support to all children with disabilities, including those children whose disabilities are caused or amplified by harmful products in the marketplace.

(Readers are encouraged to return to this site with comments if they are so moved, as the Federation’s site does not include that option.)

U.S. DOE and DESE Make Clear: Districts Must Provide FAPE During School Closure and Timelines Remain in Effect

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on March 27, 2020, contains a provision allowing the U.S. Secretary of Education, Betsy DeVos, to recommend that Congress waive certain requirements during the COVID-19 pandemic, including requirements under the Individuals with Disabilities Education Act (“IDEA”).  Many attorneys and advocates for students with disabilities feared that the Secretary would seek congressional approval to excuse school districts from complying with all of IDEA’s provisions during the current crisis.  Such approval, if granted, could have relaxed IDEA’s substantive obligations, such as the requirement that school districts provide a free appropriate public education (“FAPE”) to students with disabilities, during periods of school closure and/or could have tolled or extended IDEA’s procedural obligations, such as the requirements that district perform evaluations and re-evaluations within specific timeframes. Continue reading