Monday, February 15, 2010

The Recession & Special Ed Revisited - Part II

Metro Bicycles "recession commuter specia...Image by Ed Yourdon via Flickr

Ok so now you know that I am still worried about the economy. those who know, raise your hands!

My review of the IDEA cases for 2009 raised a few red flags about the economy, but not so many as I had feared. In a previous post, I discussed the issue of furloughs in some states. This seems like a bad public policy on so many levels! Also, one state is threatening to stop contracting with related service providers. Once again, this is bad news for students, parents, not to mention OTs, PTs, speech therapists, and psychologists.

The 2009 cases had one other potentially disturbing trend- courts are talking openly in some cases about the cost or expense of services. Once again, at this point, these are red flags not even really alarms just yet. But we should pay attention.

I believe that the current state of the law is that expense or cost of a service is not an excuse for not providing the service if a child with a disability needs it in order to receive meaningful ( or some) educational benefit. I can even cite a Supreme Court decision for that proposition: Cedar Rapids Community Sch. Dist. v. Garret F. 526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999).

But two recent and fairly high profile cases talk about expense. The decisions are: Ashland Sch Dist v. Parents of Student EA
587 F.3d 1175, 53 IDELR 177 (9th Cir. 12/7/9); and Forest Grove v. TA 53 IDELR 213 (D.Oregon 12/8/9) .
Now it should be noted that these were both cases involving reimbursement for a residential placement and the decision in each case turned on other factors. The portions of the opinion I am concerned with are "dicta" (lawyer talk for language in a decision that is not critical to the reasoning of the outcome).

Nonetheless, in EA, the
Ninth Circuit found that the District Court had not abused its discretion by considering the alleged excessive cost of a residential placement where the court concluded that the placement was for medical and not educational needs. And in TA, the Oregon District court weighed several equitable factors including the fact that the parents chose arguably the most expensive placement available.
So what do you think? Are these red flags that the economy is affecting special ed law? How many think I'm overreacting, raise your hands!

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  1. I'm not at all suprised to see court cases coming out on the side of financial responsibility from the school district's side. With medical vs. educational I suppose it is easier to distinguish where services fall (not always, but in most situations). The tough part is on the educational side, getting to a place where school districts and courts can define best practice rather than making decisions based primarily on cost.

    If there was a list of preferred practices and defined criteria for which in district or out-of-district placements where the best or most cost effective would be great. I see the problem in being able to monitor - some kind of rating scale - maybe from an independent source; where does the money come from to do the monitoring?

    How about a private company that does rating on private special education schools? It would be like a Consumer Reports or J.D. Powers for the Special Education industry - I'm talking reputable here.

    Or how about providing vouchers to parents who want to spend the extra money to get the Cadillac school?

  2. Anon,

    You have some intriguing ideas.

    One point though, because each child is different and the individual needs of the child with a disability is the cornerstone of IDEA, I suspect that it would be difficult to determine best practices. The principals Association, however, strongly agrees with you.