Special ed rate issue likely headed to court
The District's attempt to contain the nearly $300 million-a-year cost of private school tuition and services for special education students is headed toward review by a federal judge. Steven Ney, one of the attorneys representing the 2,700 D.C. students in private schools, said Thursday that he will soon seek a preliminary injunction to block implementation of the new rate structure proposed last month by the Office of the State Superintendent of Education (OSSE).
Families can seek private placement for their children if it's determined that the public school system can't meet their needs. About a quarter of D.C.'s special ed population is in private schools, where tuition runs anywhere from $20,000 to $80,000 annually. OSSE says regulation of costs has historically run from lax to non-existent, and that a transparent rate structure is needed.
The proposed regulations are part of a broader effort by the District to ease its special education costs by tightening fees and "reintegrating" into public schools children it believes can be served in a less restrictive environment, as mandated by federal law. At the same time, it wants to make sure that students who need private placements get services in a cost-efficient manner. The new rate structure, which the OSSE wants to implement this fall, would set a base rate of $38,730 for a 180-day school year. The figure is tied to the uniform per-student funding level for special ed students, with an allowance for indirect costs. Fees paid for "related services," such a psychiatric or occupational therapy, would also be limited.
Student advocates say they understand the need for cost containment and reintegration, but charge that the OSSE has tried to hustle the complex set of changes through the system during the summer break. The 42 pages of new regulations were published in the D.C. Register on June 18 and a public hearing was called for the following week. Schools that already set their budgets and hired staff for the coming year now face possible layoffs and curtailing of programs.
"It's absolutely absurd to have a school start with one budget and then have to readjust that budget after a few weeks of school. It's just too fast and I don't think it's fair. If I was a principal I would be at my wit's end," said Anne Gay, executive director of the District of Columbia Association for Special Education, which represents about two dozen private schools attended by kids at District expense, including the Lab School, the Kingsbury Center, Kennedy Krieger, Ivymount and Rock Creek Academy.
Ney said the disruption to staff and programming posed by the rapid imposition of the new rates amounts to a de facto change in the students' placements, a violation of federal law and the consent decree that settled the Petties class action suit governing transportation and payment for students in private schools. He said he will ask that the effective date of the rates be pushed back to the beginning of the 2011-2012 school year and that the court review the fairness of what he called OSSE's "one size fits all" approach.
OSSE spokesman Chad Colby said the agency's intention to propose regulations "has been known for quite some time, including announcements made at the agency's performance hearing earlier this year. Also, public comments were collected in 2007 on setting rates."
Colby added that OSSE is prepared to accept base rates set by Maryland private schools that serve DCPS students, because he state has what he called a "rigorous" rate-setting process. Virginia and the District do not.
But "related service" costs would apparently still be subject to the new limits, and opponents of the say they are way out of line with market rates.
July 9, 2010; 9:10 AM ET
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