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Massachusetts May Sue Over Special-Education Funds

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Sacramento, Calif--Massachusetts may sue the federal government if the U.S. Education Department insists that the state return more than $600,000 in special-education funds, according to the state's top special-education official.

At a meeting here last week of the National Association of State Directors of Special Education, Roger Brown, associate commissioner of the Massachusetts department of special education, said his state is "prepared to litigate" over the $676,256 in 1985 funds--out of a total of $32.1 million--that the Education Department's special-education office said it overpaid the state last year.

Mr. Brown said he was also concerned about $1.5 million that the department cut from the state's 1986 grant, but added that Massachusetts planned to address the two issues separately.

Federal Law

P.L. 94-142, the Education for All Handicapped Children's Act, specifies that the number of special-education students receiving federal aid in a state may not exceed 12 percent of the state's 5- through 17-year-old population, even if the state's own special-education law covers a wider population.

Massachusetts has a state special-education law that covers all4students between ages 3 and 21.

Although Massachusetts exceeded the 12 percent cap last year, the state was not formally notified until this past summer about federal officials' decision to ask for reimbursement of the 1985 money and to cut the 1986 funds. (See Education Week, Oct. 2, 1985.)

Mr. Brown said he had a "positive meeting" last month with Patricia Guard, acting director of the office of special-education programs, concerning the issue. He said he questioned the U.S. Bureau of the Census numbers used by the office of special education and rehabilitative services in determining each state's child count.

He said that the census figures used by osers were provisional, and that revised figures showed Massachusetts with a higher total-enrollment figure. He also said the census figures were not the same as those submitted by his state.

Ms. Guard said in an interview last week that her office was considering various options and hoped to resolve the matter so a hearing would be unnecessary.

Hearing Requested

Masschusetts had requested a hearing on the 1985 amount in a September letter to Secretary of Education William J. Bennett.

John Lawson, Massachusetts commisioner of education, received a letter dated Oct. 22 from Gary L. Bauer, undersecretary of education, noting8that the actions by osers were "consistent with requirements in the Education of the Handicapped Act."

Mr. Bauer said the department would use only data from the Census Bureau and not from the states in determining a state's child count. He also noted that osers "has not and is not required to formally notify states of the percentage of 5- through-17-year-old children counted." But he added that "osers intends to provide this data to states on a routine basis in future years."

In the letter, Mr. Bauer said Massachusetts could appeal the case to the Education Appeals Board, which Mr. Brown said the state planned to do. "I think we can make a sound case that we should be able to keep the 1985 money, both on the issue of the most recent data available and the timeliness of the notification," Mr. Brown said. He said that after the 1985 issue was addressed, the state would probably ask for a hearing on the 1986 funds.

Mr. Brown said, however, that the federal government needs to find a long-term solution concerning the 12 percent cap, since four states are already above the 11 percent mark.

In a memorandum distributed at the special-education directors meeting, Mr. Brown advocated a technical amendment to P.L. 94-142 that would extend the federal law to cover the same age groups covered under states' own special-education laws.

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