The issue has emerged as one of the fastest-growing components of local education budgets, threatening to "seriously deplete public education funds," according to a brief filed by the nation's urban school districts.
Local school systems in the Washington area spend millions of dollars each year on private school reimbursement. And the D.C. public schools allocated $7.5 million of this year's $783 million budget just for the legal costs of hearing officers or judges to decide whether the system can provide appropriate services for children with disabilities.
Some parents said a contrary decision could have forced students, especially ones whose parents could not afford private school, to spend time in an undesirable situation before getting the help they need.
"I think it's good that the Supreme Court finally is paying attention to the rights of students with disabilities," said Lyda Astrove, a longtime Maryland special-education advocate. "I don't think there's going to be a tsunami of parents placing their kids unilaterally in private special-education schools," she added, because families must pay for the tuition up front and then be reimbursed, and they may get caught in litigation over whether the private school services are necessary.
The decision comes as the faltering economy has placed school systems under unusually tight financial constraints. Prince George's County, for example, has plans to close eight schools and lay off nearly 300 employees. In Montgomery County, Fairfax County and Alexandria, school boards are freezing or delaying salary increases.
Brian Edwards, chief of staff for Montgomery County Schools Superintendent Jerry D. Weast, said the county is reviewing the opinion, "but at this point we don't believe it will have a tremendous impact on our district." The Montgomery school system, which has a more comprehensive special-education department than many other systems, spends about $34 million a year for about 650 students in private schools.
Fairfax County schools spent $15 million on tuition in the 2007-2008 academic year, the most recent year for which figures are available. The system now has 233 students in private schools. But Prince George's County schools, with fewer services, this year spent $56 million on 1,168 students. And the District, with a historically troubled special-education department, has 2,300 students receiving private care at a cost of $141 million.
The issue before the court was over two parts of the federal Individuals With Disabilities Education Act. The act guarantees a free, appropriate public education to "all children with disabilities," but a 1997 amendment specified tuition reimbursement for students who "previously received special education and related services."
Officials in Forest Grove School District in Oregon said that meant they did not have to reimburse the private school costs for a boy referred to in court documents as "T.A." Even though the boy had attended public schools from kindergarten to high school, no learning disability had been diagnosed (although his counselors discussed whether he had one), and thus he had never received special-education services.
His parents eventually decided the public schools could not provide what he needed and placed him in a private school. The U.S. Court of Appeals for the 9th Circuit said the parents were entitled to reimbursement for his tuition.
Stevens said that while Congress's wording might have been unclear, its intentions were not. And, he wrote, restricting the reimbursements to children who had previously been served by public school systems would immunize the systems for never providing the help a disabled child needed.
That would be "a rule bordering on the irrational," Stevens wrote.
Justice David H. Souter dissented, saying that "given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools." He was joined by Justices Antonin Scalia and Clarence Thomas.
The trend in special education is toward inclusion of special-needs students in the general student population, a goal mandated by federal law to end the academic segregation of children with disabilities. School systems in the Washington region tend to oppose sending students to private settings for that reason, as well as the cost.
SPECIAL EDUCATION AND
THE ADA AMENDMENTS ACT OF 2008
The ADA Amendments Act of 2008, also known as the ADAAA, became law on January 1, 2009. When Congress passed this Act, it stated that its purpose was “To restore the intent and protections of the Americans with Disabilities Act of 1990”. In order to accomplish this goal, Congress said that the Supreme Court holdings in Sutton v. United Air Lines, Inc. 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, (2002) were being rejected. Instead, Congress said that the ADAAA was going to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). As a result of this Act, Congress restored a “broad scope of protection to be available under the ADA;” SECTION 2. (b) ADAAA
ADAAA DOES HAVE AN
IMPACT UPON EDUCATION, BECAUSE ALLEGATIONS FOR CLAIMS UNDER
SECTION 504 OF THE REHABILITATION ACT 1973 WILL SUPPORT
CLAIMS UNDER THE ADA.
Although ADAAA is considered primarily an act that impacts the area of employment, it does have an impact upon education. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against individuals with disabilities. And 42 U.S.C. 12132 says that “no qualified individual with a disability, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity….”. When Congress enacted the ADAAA, moreover, it said it was reinstating the reasoning of School Board of Nassau County, a case decided under the Rehabilitation Act of 1973.
Further, the court in Lewis v. Johannas, 180 Fed. Appx. 599 (8th Cir. 2006) said, “Cases interpreting the ADA and the Rehabilitation Act are interchangeable because the same basic standards and definitions are used under the ADA and the Rehabilitation Act….”. And the court in K.F. v. Francis Howell R-III School District,2008 W.L. 723751 (E.D. Mo. 2008) said, “The Court concludes that the same facts alleged in support of a claim under the Rehabilitation Act, also support a claim under the ADA.” Thus, the ADAAA will have an impact upon students who are receiving educational services from a school receiving federal funding.
THAT THE DETERMINATION OF WHETHER OR NOT AN IMPAIRMENT
SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY IS TO BE MADE
WITHOUT REGARD TO MITIGATING MEASURES; THEREBY REVERSING THE
HOLDING OF THE SUPREME COURT IN SUTTON V. UNITED
AIRLINES, 527 U.S.471 (1999).
In Sutton v. United Air Lines, Inc. 527 U.S. 471 (1999) the Supreme Court said that the issue of whether or not an impairment substantially limited a major life activity had to be determined, after considering the impact of mitigating factors. Further, the Sutton decision rejected the then excising EEOC regulations that stated that persons were to be judged in their uncorrected or unmitigated state. Thus, if an individual had a claimed disability that was under control as a result of medication, the individual was not disabled.
That is no longer the law. And, if courts hold that students in an educational setting must be viewed in their uncorrected or unmitigated state, with the exception of eye glasses or contacts, then there will be an increase in the number of students, who qualify for protection under 504 . To illustrate, historically it has not been unusual for public school educators to deny 504 eligibility for a student, whose “symptoms” are under control because of medication. Those educators claim that “we don’t see the behaviors that you, the parent, observe at home.” This statement may have been true, because the child was sufficiently medicated to control behaviors during school hours, but, by the time the child gets home, the impact of the medication diminishes and the inappropriate behaviors reappear. Now, however, ADAAA requires educators and school staff to look at the child without medication, before deciding about 504 eligibility. Thus, the school districts will no longer be able to ignore out-of-school or non-medicated behaviors of a child that is seeking 504 qualification.
MORE CHILDREN WILL
BE ELIGIBLE FOR SERVICES UNDER 504, BECAUSE ADAAA EXPANDS
THE DEFINITION OF “MAJOR LIFE ACTIVITIES”.
The ADAAA expanded the definition of “Major Life Activities” by adding reading, concentrating, thinking, and communicating to the list of covered activities. In addition, the ADAAA says that major life activities shall include, “the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological , brain, respiratory, circulation, endocrine, and reproductive functions.” Thus, parents of children with ADHD and children with autism have been given a new tool to assist them in their efforts to obtain additional educational services for their children. By combining the portion of the ADAAA that eliminates the mitigating factor requirement with this expanded definition for “Major Life Activity”, more children will qualify for protection under the ADA.
CONGRESS ENACTED ADAAA, IT REJECTED THE SUPREME COURT’S
RULING IN TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. V.
WILLIAMS, 534 U.S. 184 (2002), SINCE THAT CASE CREATED A
HIGHER AND STRICTER LEVEL OF DISABILITY AS THE STANDARD FOR
PROTECTION UNDER ADA.
When Congress enacted ADAAA, it wanted to expand the protections of ADA to more people. In fact, Section 2 (b) (5) of the Act rejects the Supreme Court ruling in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, (2002), by finding that the Supreme Court had gone to far in restricting the number of individuals, who should qualify for ADA protection. Instead, Congress wanted “To restore the intent and protections of the Americans with Disabilities Act of 1990”. And the purpose of ADA in 1990 was to expand, not contract, the number of people who would be protected by the ADA.
Because the ADAAA also impacts 504, this expansion of coverage should apply to public education environments as well. School Districts that look for reasons to exclude students from 504 protections will now find that this may be contrary to the Congressional intent of expansion of protection to include more disabled individuals.
ADAAA WILL ALSO
IMPACT STUDENTS, WHO RECEIVE SERVICES UNDER IDEA, BECAUSE
ALL IDEA STUDENTS ARE ALSO 504 STUDENTS.
Every student who qualifies for services under IDEA also is protected by the ADA. So when Congress enacted the ADAAA, it also increased protections for students, who receive services under IDEA.
One of the most important protections given to students under ADAAA is that school staff should no longer view the child as he appears in school under medication. The mitigating factor standard set forth in Sutton v. United Air Lines, Inc. 527 U.S. 471 (1999) no longer is the law. Thus, when school personnel discuss out-of-school behavior as a non-issue during IEP meetings, because those behaviors don’t occur in the school environment, ADAAA states that, if the student’s behavior is controlled by medication, then that child must be observed and examined while in a non-medicated state, when eligibility is being considered. To illustrate, if educators report that a student has good attention to a task, and that student is taking medications to control behaviors while in school, then the district is obligated to investigate the student’s ability to attend to a task, while the child is in the ‘unmitigated condition’, or non-medicated. Thus, it is the student’s unmitigated condition that is relevant, and school personnel may not be able to quickly dismiss parent complaints of bad behaviors occurring at home, as something that “we don’t see at school”.
As previously mentioned,
Congress expanded the definition of Major Life Activities
that qualify for protection under the ADA. Section 3 (B)
of the ADAAA says that “For purposes of paragraph (1) a
major life activity also includes the operation of a major
bodily function, including but not limited to, functions of
the immune system, normal cell growth, digestive, bowel,
bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.”. This expansion of
the area of major life activities becomes important, when
considering a disability such as autism that by definition
is a neurological problem or a problem of brain function.
That being the case, the implication is that children with
autism FIT INTO THE
CATEGORY OF THEIR DISABILITY AFFECTING A MAJOR LIFE
This conclusion could have a significant impact of the number of students, who become entitled to ADA protection. This does not guarantee, however, that all autistic children will automatically qualify for 504 or IDEA protection. An autistic child would still have to show that their disability is an impairment that substantially limits a major life activity to qualify for 504. Even if the child qualifies for ADA and therefore qualifies for protection under 504, this does not mean the child automatically qualifies for IDEA. Although all IDEA students are also students protected under 504, the reverse is not true; all 504 students are not protected by IDEA. Thus, an autistic child who qualifies for 504 services would still have to show that the disability impacts the child’s ability to be educated, before qualifying for IDEA services.
That said, with the enactment of ADAAA and the possibility that this means that more autistic children now are regarded as disabled under ADA, another question arises. Will some states be able to continue the practice of using only their restrictive “educational” definition for autism that ignores the less stringent medical definition of “autism”? Missouri’s education plan uses this ‘educational’ definition. As a result, many children residing in Missouri, who have a medical diagnosis of autism, have been excluded from IDEA qualification, because they don’t meet the Missouri standard of educational autism.
In fact, on December 18, 2007
the Missouri Legislature’s Blue Ribbon Panel on Autism made
the following recommendation:
“The Blue Ribbon Panel
recommends that the General Assembly and the Governor urge
the Missouri congressional delegation to change the existing
IDEA law to allow automatic eligibility for children who
have received a medical diagnosis of ASD.”
Congress did not amend IDEA, when it enacted the ADAAA. But it did pass a law that could have an impact upon IDEA, because it increased the number of individuals who are now deemed disabled by definition. Further, Congress wanted to increase the number of people entitled to federal protection. Although Congress did not specifically name autism as a “disability”, the expanded definition of what encompasses a “major life activity” now includes all autistic people. And within this expanded definition stated by Congress, the only qualification necessary for eligibility under ADA is that the autism is a substantial impairment on the child’s brain or neurological function. This type of disability can only be determined by medical, not educational, personnel.
Accordingly, when a school is presented with a child who is autistic, and the student’s healthcare provider concludes that the impairment of the autistic child’s brain or neurological function is substantial, then educators can no longer characterize the disability as a medical diagnosis, that is not qualified for IDEA services. Thus, the test for qualification under IDEA for a child diagnosed with autism that causes a substantial impairment on the child’s brain or neurological function becomes the same as with any disabled child: DOES THE DISABILITY IMPACT THE CHILD’S ABILITY TO BE EDUCATED?
Although this conclusion will certainly create a great deal of litigation in Missouri, the ADAAA may have accomplished a portion of what the Missouri Blue Ribbon Panel suggested: A single category for autistic children.
When the ADAAA became law on January 1, 2009, Congress ended the era of limited access to federal protection for disabled individuals. In one step, Congress erased what it believed to be inappropriate interference with the purpose of ADA by the United States Supreme Court.
Since some courts believe that ADA and Section 504 of the Rehabilitation Act of 1973 are closely related, the ADAAA also will produce an impact upon education for special needs children. More students will now be classified as disabled under the ADA and therefore entitled to additional assistance or accommodations at schools receiving federal funding. And it is possible that more students, who have a medical diagnosis of autism, will now be deemed as disabled for purposes of 504. This may also increase the number of students who qualify for services under IDEA. All this points to a significant change in the landscape of special education law.
NEW LEGISLATION INTRODUCED TO RESTORE PARENT RIGHT TO EXPERT
BILL WILL ENSURE MEANINGFUL RIGHT TO DUE PROCESS, PROTECT CHILDREN WITH DISABILITIES
Today, Congressman Chris Van Hollen of Maryland and Congressman Pete Sessions of Texas introduced the IDEA Fairness Restoration Act. This bipartisan bill would allow prevailing parents to recover their expert witness costs in due process and litigation under the Individuals with Disabilities Education Act. The bill is important to protect parents, most of whom cannot afford to pay thousands of dollars for expert witnesses. The right to due process must be affordable to be meaningful.
In 1986, Congress adopted legislation that was intended to allow prevailing parents to recover their expert witness fees. But in 2006, the Supreme Court ignoredCongress' intent and held that parents cannot recover these costs in Arlington Central School District v. Murphy. The IDEA Fairness Restoration Act will override the Supreme Court's decision.
Few parents can afford the thousands of dollars needed to pay qualified medical, educational, and technical experts needed in IDEA due process. Almost 2/3 of children with disabilities live in families earning under $50,000 a year. By contrast, school districts can pay their experts with taxpayer dollars or use staff already on their payroll. With their greater resources, school districts are no match for parents. Congress should allow parents in IDEA cases to recover expert fees just like prevailing plaintiffs in ADA, Title VII, and other civil rights cases.
The Murphy decision has the potential to affect many many families. Here are some examples:
over 100 organizations joined COPAA in supporting the IDEA
Fairness Restoration Act and overriding Murphy.
The right to a hearing before an impartial, independent hearing officer is meaningful only if parents can afford it. Approximately 7 million children with disabilities are covered by the IDEA. Nonetheless, parents proceed to litigation only as a last resort. In 2003, the GAO reported that there were only 5 hearings per 10,000 special education students. Parents prevail in IDEA cases only when they show that the school district provided an education so inferior that it failed its legal obligations. But when this happens, due process must be affordable for parents.
COPAA is grateful for the hard work and leadership of Congressman Van Hollen and Congressman Sessions on this bill. We will have copies of the IDEA Fairness Restoration Act on our webpage, www.copaa.org in the next few days. (We do not yet have a bill number but will post that when we get it.) Please stay tuned for additional activities to support this important legislation to restore Congress' original intent and protect children with disabilities.
For more information on the IDEA Fairness Restoration Act and the impact of Arlington C.S.D. v. Murphy on parents, see http://www.copaa.
Please feel free to share and forward this legislative alert.
Robert Berlow and Jessica Butler
Co-Chairs, Government Relations
Council of Parent Attorneys and Advocates (COPAA)
a national voice for special education rights and advoacy
EDUCATION DEPARTMENT /
THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234
Available in PDF Format for Printing
|Superintendents of Schools|
|Presidents of Boards of Education|
|New York City Board of Education|
|Principals of Public Schools|
|Directors of Pupil Personnel Services|
|Administrators of Nonpublic Elementary and Secondary Schools|
|Organizations, Parents and Individuals Concerned with Special Education|
|Impartial Hearing Officers|
|Commissioner’s Advisory Panel for Special Education Services|
|SETRC Professional Development Specialists|
|Regional School Support Centers|
|School Business Officials|
|Rebecca H. Cort|
Proposed Mandatory Individualized Education Program (IEP), Meeting Notice and Prior Written Notice Forms
On October 20, 2008, the
Regents approved, through emergency action, an amendment to the Regulations
of the Commissioner of Education to extend the date by which school
districts will be required to use the State’s forms for individualized
education programs (IEPs), Committee on Special Education (CSE) and
Committee on Preschool Special Education (CPSE) meeting notices, and prior
written notices (Notices of Recommendation) from January 1, 2009 to
September 1, 2009.
The Board of Regents acted to mandate the use of State forms based on the State’s findings that IEPs varied greatly from school district to school district across the State and that many school district’s IEPs did not include the information required by the Regulations of the Commissioner of Education. In addition, the State found that the CSE/CPSE meeting notices and prior written notices provided to parents did not always fully inform parents of the information they need and are entitled to have. By mandating these forms, students’ IEPs will be more appropriately developed, parents will be more fully informed and school districts are more likely to meet compliance requirements.
The Department initiated development of the proposed forms in the spring of 2007, with extensive input from stakeholders, including review and comment from parents of students with disabilities, school district administrators and teachers, IEP software development representatives, the Commissioner’s Advisory Panel for Special Education, attorneys with special education expertise and others. The proposed forms, which include only information that must be provided to meet federal and State requirements, are attached for public preview prior to finalization. (Please note: All forms and notices are available only in PDF format at this time for printing and review purposes.)
Proposed IEP Forms
Proposed Meeting Notice Forms
Proposed Prior Written Notice Forms (Notice of Recommendation)
Three public hearings have been scheduled as follows for those individuals wishing to provide public comment on the proposed forms.
Henry C Conference Center
6820 Thompson Road
Syracuse, NY 13211
7th Floor Conference Room
116 W. 32nd Street
Manhattan, NY 10001
1031 Watervliet-Shaker Rd.
Albany, NY 12205
Individuals who need accommodations for a disability in order to attend the meeting (e.g., interpreting services and material in an alternative format) should notify Cathryn Tisenchek by e-mail (firstname.lastname@example.org) or phone (518-473-2878) no later than one week before the scheduled public hearing date. Questions regarding the public hearings may be directed to Joanne La Crosse at 518-473-2878.
Office of Vocational and Educational Services
for Individuals with Disabilities
New York State Education Department
One Commerce Plaza, Room 1624
Albany, New York 12234
ATTN: Special Education Policy Unit - Forms and Notices
*Please note: If you would like to receive notification of our publications via e-mail, register at http://www.vesid.nysed.gov/specialed/publications/register.htm
The IDEA Fairness Restoration Act (H.R. 4188) was recently introduced in the House of Representatives by Congressman Chris Van Hollen and Congressman Pete Sessions. This bill is important to parents and students because, if passed, it would allow prevailing (winning party) parents to recoup expert fees and related costs in proceedings under the Individuals with Disabilities Education Act (IDEA).
The reason I am urging you to act is because without proper evaluations, expert testimonies and documentation many families are not able to present a strong case on behalf of their child. Right now parents have to pay for these resources out-of-pocket, making it nearly impossible for many to afford to fight for their child’s educational rights no matter how worthy and justified their case may be. Every child is guaranteed a free, appropriate education -- it is not acceptable for those rights to be taken away based on family income.
I ask you to take a few minutes of your time today to ensure parents have access to every resource they need to ensure their child receives a free, appropriate education. Visit our Legislative Action Center to learn more about this important issue. Then send a message to your elected official today!
Thank you for your continued support on behalf of those with learning disabilities. Your voice always makes a difference!
Director of Public Policy
National Center for Learning Disabilities
MCAT Final Decision Rules In Favor of Accommodations for Dyslexics in Alameda County, CA.
In a groundbreaking decision, California's Superior Court ruled on October 31 that individuals with learning disabilities such as Dyslexia and Attention Deficit Hyperactivity Disorder ("ADHD") are entitled to extra testing time and/or other accommodations on the Medical College Admission Test ("MCAT) as defined by existing California law.
What does this important judicial ruling mean for People with learning disabilities? According to IDA legal experts, the decision requires AAMC to stop its practice of denying accommodations to individuals with well- documented dyslexia and other learning diabilities based solely on the individuals' high level of achievement or intelligence, a practice that was based on common misconceptions about learning disabilities.
According to Roger Heller, an attorney and IDA member, by allowing more individuals to receive the accommodations that they need on the MCAT, this decision will help ensure that IDA members and other individuals with learning disabilities will have an equal opportunity to demonstrate their knowledge and skills on the MCAT and a fair chance to pursue their dreams in the medical field.