As we have noted in previous posts (see, e.g., https://kcsspecialeducationlaw.com/2022/07/30/chapter-766-is-50-years-old-are-iits-purposes-being-achieved/), Chapter 766 has now been on the books for more than 50 years. It was signed into law by Governor Frank Sargent in July 1972. Marking that anniversary and a comparable anniversary approaching in 2024 for 766’s progeny, IDEA, this year has witnessed a number of celebrations and reflections on the successes and failures that have ensued as stakeholders continue to fight for supports and protections for those with physical, intellectual, emotional, developmental and other conditions that undermine their access to full and purposeful lives in our communities. Continue reading
Category Archives: News in Special Education
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.Read more: Thoughts of Our Departed Friend, Larry Kotin
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.
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.
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:
- On June 4, 2020, DESE Commissioner Jeffrey C. Riley issued “Initial Summer School Re-Opening Guidance.”
- On June 7, 2020, Senior Associate Commissioner and State Director of Special Education Russell Johnston issued “Guidance on Summer 2020 Special Education Services.”
- On June 25, 2020, Commissioner Riley issued “Initial Fall School Reopening Guidance,” including “Initial Fall Special Education Guidance” (Appendix C).
- On July 1, 2020, Commissioner Riley issued “Comprehensive Summer School Guidance,” which supersedes the June 4 initial guidance.
All four documents may be found at http://www.doe.mass.edu/covid19/on-desktop.html. Continue reading
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
Status of the Commonwealth Dispute Resolution Offices During the Covid-19 Shutdown
The dedication of our public servants in meeting the educational needs of our community is manifest in their reaction to the Covid-19 shutdown. Continue reading
Encouraging Changes: DESE Provides Updated Guidance to School Districts Regarding the Provision of FAPE During School Closures
On March 26, 2020, the Massachusetts Department of Elementary and Secondary Education (“DESE”) provided an important update to school districts on their legal responsibility to provide a free appropriate public education (“FAPE”) to their students with disabilities during the COVID-19-related school closures. This guidance, entitled “Coronavirus/Covid-19 Frequently Asked Questions For Schools and Districts Regarding Special Education,” replaces the previous one that DESE published on March 17, 2020. Also on March 26, 2020, DESE Commissioner Jeffrey Riley issued specific recommendations to school districts about implementing remote learning models, entitled “Remote Learning Recommendations During COVID-19 School Closures.” Continue reading
Reversing a FAPE Freefall? U.S. DOE Upholds Students’ Rights to Special Education During Coronavirus Crisis
On March 21, 2020, the United States Department of Education (“USDOE”), through its Office of Civil Rights (“OCR”) and Office for Special Education and Rehabilitative Services (“OSERS”), issued a Supplemental Fact Sheet, “Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities.” This guidance provides a necessary corrective to earlier guidance issued by USDOE on March 12, 2020 and by the Massachusetts Department of Elementary and Secondary Education (“DESE”) on March 17, 2020. Continue reading
KCS Settles Civil Rights Suit Against the Holyoke Public Schools for $950,000
KCS attorneys Daniel Heffernan, Alicia Warren, and Carl Misitano resolved a complex civil rights suit against the Holyoke Public Schools. The case arose out of the abuse and mistreatment of fifteen students with special needs in a program within the Holyoke Public Schools.The students, who were in grades four through eight, all had pre-existing emotional disabilities including anxiety and trauma-related disorders. The defendants included the municipal entities and various school employees. Continue reading