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The Special Education Ruling

Last month, the Supreme Court found that parents of children with disabilities may seek reimbursement for private school tuition even if the child has never received special education or related services from the school district.

The Supreme Court ruling has left lots of questions for parents of special education students as to how the law affects them. To answer those, I spoke with special education lawyer Susan Cole, a Harvard lecturer on law and a clinical instructor. Attorney Cole is the director of the Trauma and Learning Policy Initiative, which is a joint program of Harvard Law School and Massachusetts Advocates for Children. Here's an edited Q&A with her about the decision and its impact:

Q: Could you please describe the facts of the case?

The Forest Grove case involved a public school student who had experienced problems focusing and completing assignments from kindergarten through high school. His parents requested and received a special education evaluation for him from the public school during his freshman year. However, the evaluation, which was found legally insufficient by the hearing officer, did not address all areas of suspected disability. Based on the evaluation, the school denied the student any special education services. Ultimately, the parents sought experts who identified the boy as having ADHD and other disabilities related to memory and learning. Based on expert advice, the parents placed the boy in a private school for children with special needs and sought the help of a lawyer to inform the public school and file a request for reimbursement. The school asked the parents for and received their consent to evaluate the boy a second time, again finding the student was not eligible for special education services. Thus, the court affirmed an appellate court decision that the parents had met their burden of proof of showing that the public school had not provided the student with a free appropriate education, as required under the Individuals With Disabilities Education Act. In doing so, the court confirmed its longstanding precedent that parents can receive reimbursement for the cost of placing their child in private placement, without school department consent, if 1) the school failed to provide a free appropriate education (FAPE) to the child and 2) the private placement that the parents placed the child in was appropriate. In Forest Grove, the court found that the parents had met their burden to show that the school had not provided FAPE and that the private school placement was appropriate.

Who does the ruling apply to?

Any children covered by Part B of the special education laws (also known as the Individuals With Disabilities Education Act or IDEA); this includes children ages 3 to 22. The upper limit on age changes by state. In some states, children are covered to age 18. Other states have chosen to cover people to age 22.

What's the process for providing special education to students and at what point do parents have a right to say the school is not providing a appropriate education?

The special education process starts when a parent or other person in a caregiving position concerned about a child’s development refers the child for a special education evaluation. Once the referral is made, the parent is given a consent form to sign before any evaluation can take place. After the parent signs the form, the school evaluates the child in all areas of suspected need. The parent who places a child in a private school without giving the school an opportunity to evaluate is not likely to receive reimbursement.

Once the evaluation is completed, a team composed of the child’s experts (teachers, the parents, and others whom the parent may invite) determines whether the child has a disability that interferes with his or her ability to progress academically, socially and/or emotionally. If so, the child is determined eligible for special education and the team then develops an Individualized Education Program (IEP) for the child. The IEP must provide supports and services that enable the child to receive what is called FAPE (a Free Appropriate Public Education)

FAPE is defined as special education and related services provided at no cost to the parent that can enable a child to meet state education standards. Determining what FAPE is for an individual child requires analyzing the child’s academic progress (e.g. tests, opinions of experts, grades, classroom observations, etc.); the child’s social and emotional growth and behaviors in relation to typical peers; the child’s individual potential; his/her unique needs; and the benefits of enabling the child to remain with his typical peers.

If the parent feels that the IEP will not enable the child to progress, then she/he can accept or reject the IEP in whole or part and go to a hearing. The parents can place the child in a private school prior to the hearing. However, if the hearing officer finds that the IEP offered by the school provides FAPE, then the parents will not be reimbursed.
Remember, parents put a child in private placement at their own risk. It’s not easy to win reimbursement. It’s a legal process and usually requires filing a complaint.

What will the ruling change?

I don’t think the ruling will change legal practice in this area. Parents should understand that the law places a very high priority on placing children in the least restrictive environment. This means the law has a preference for children to attend the school they would have attended but for the disability. It is uncommon for a child to be placed in a private or residential placement, unless the district can’t or won’t provide FAPE. What appeared to happen in Forest Grove is that the school failed to evaluate the child properly, and based on an inadequate evaluation refused to provide services to address his needs, leaving the parent with no choice but to place the child in a private school. The court was clearly not declaring open season for putting children in private schools. But it was saying that where the school allowed a child to fail and refused to provide FAPE it would require the school district to pay.

However, this case should remind schools to be very careful to identify students with disabilities that affect progress at school as early as possible and provide interventions that enable the students to succeed. Schools ignore a student’s struggles at their own risk because parents will feel forced to consider private placements and might be successful in winning reimbursement. In addition, the case should remind schools of the importance of providing quality evaluations. The hearing officer found that the evaluation of the Forest Grove student was legally insufficient because the school did not evaluate in all areas of suspected need as required by law. The outcome in this case may have been avoided if the school had provided a quality evaluation.

Parents, on the other hand, should understand that the determination of whether a child is receiving FAPE is made by examining all the evidence. As it was before the new ruling, it is best to seek the advice of an attorney about the likelihood of reimbursement before removing the child to a private school. If your child is struggling, however, don’t wait too long, ask for an evaluation and keep on top of the school to evaluate. If you disagree with the evaluation, seek an independent evaluation and share it with the school. Remember, before awarding private school tuition, hearing officers and courts will look to see if the parent gave the school a chance to provide the child with his free appropriate public education. So watch your children like hawks, collaborate with the school, and try to make things work for your child. A private placement is a last resort but if your child needs one, don’t hesitate to look into the option.

How does reimbursement work?

If parents enroll a child in private school without the public schools' consent, the court can require the agency to reimburse the parents so long as the private school is an appropriate placement and the parents can prove the child was not receiving FAPE. However, the court has what is called equitable jurisdiction in these cases. This means the court has room to act in a way that seems fair. For example, the cost of reimbursement may be reduced or denied if the parents did not inform the IEP team that they were rejecting the IEP plan at the most recent IEP meeting; if the parents didn’t give written notice 10 business days prior to removing the child from the public school to the private schools; or if the parents didn’t make the child available for an evaluation from the public school.

Are there portions of the ruling that are not completely clear to lawyers familiar with it that could result in parents/school systems landing back in court?

This ruling is an affirmation of a 1985 decision called School Committee of Burlington v Department of Education of Mass. Burlington has been around now for 24 years so the law is fairly clear. The focus of discussion in Forest Grove was on a clause added to the special education laws in 1997 stating that a court may order reimbursement to parents where children had previously received special education services. The school argued that this meant the child had to first receive services in special education before the parent could receive reimbursement. But the court disagreed saying this would mean that the students who couldn’t get any services would have less rights than those to whom the school provided some services. The court also found that the school’s interpretation would conflict with the “Child Find” section of the law that requires states to “identify, locate, and evaluate … all children with disabilities” to ensure they received needed special education services. If anything, this ruling provided a clearly written and welcome clarification of the current law.

For those of you with special education students, how has the process been? Do you feel your child gets the services he or she needs?

By Stacey Garfinkle |  July 6, 2009; 7:00 AM ET  | Category:  Education
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Yet another burden on our public school systems...which are required to be all things to all people. There's what's fair and ideal, and then there's reality. And the reality is that financially the current practices cannot be sustained.

Posted by: mlc2 | July 6, 2009 7:29 AM | Report abuse

"The Forest Grove case involved a public school student who had experienced problems focusing and completing assignments..."

I call it doing a "half-assed" job. (got that one from my parents), and I apparently have a few kids afflicted with the same disorder. Must run in the family or sumpthin'.

I'm sure with today's PC terminology, there's a clinical label for it. Anybody know what it is?

Posted by: WhackyWeasel | July 6, 2009 8:48 AM | Report abuse

"For those of you with special education students"... we're getting awfully narrow with our post today - 14 or 15% of kids in school are in special ed programs...

Posted by: 06902 | July 6, 2009 9:38 AM | Report abuse

Perhaps I take this one personally as I'm the father of a child with autism. We had concerns about Secondo's development at the age of 2 and him seen by a developmental specialist a few months later. From there, it was parallel tracks. The public option was Child Find. One does go through an extended process of evaluations, meetings, IEPs etc. That happened at a steady pace and he started preschool last fall.

The private track was getting an appointment for a formal diagnosis by a developmental psychiatrist. Not surprising to us, a diagnosis of autism (PDD NOS) was made. Like it or not, that's crucial to getting coverage.

On the plus side, we've received outstanding services. Secondo spent his first year in a preschool classroom of special needs kids (teacher and an aide with up to 8 children). Secondo is a quirky kid, but has come alive. He made sufficient progress on his goals that we started early for the next year. At the age of 30 months, he scored at 12 - 18 months cognitively (and below in some categories). He's now at age level, knows his letters and numbers and is beginning to read at the age of 3 1/2. This is a kid who won't need to be shunted off to a special school, but will be able to succeed in a mainstream classroom.

The difficult part is hurry up and wait. Once you know that your child has problems, the urgency of the situation is impressed upon you. It was about 4 months between the first evaluation and starting preschool. It took even longer for the diagnosis. So, you're operating in something of a vacuum. We did quite a bit of work with Secondo during those months and he began to make progress before starting school. There is nothing like the integrated services he has received and he's made up more than the lost ground of his 2nd year.

Now, I'm sure there are those like mlc2 who wonder why it's THEIR problem and THEIR taxes paying for MY kid. The short answer is that it will be a lot more expensive paying for a lifetime of care for an incompetent adult than to treat a young child. I didn't whine about money spent on public education before I had children. That some kids need more help than others shouldn't come as a surprise to anyone.


Posted by: FairlingtonBlade | July 6, 2009 10:06 AM | Report abuse

You've totally read me wrong. I have no problem spending my tax dollars on services for children with special needs. I'm a former public school teacher who looks forward to going back to work someday. I do, however, think a child with ADHD and memory and "learning" issues (as described in this court case) can be serviced in the public school. It's called inclusion, and done right, can handle the needs of many kids who currently go to private facilities on public dollars.

Posted by: mlc2 | July 6, 2009 10:37 AM | Report abuse

mlc2- not sure if you read this carefully, but the parents DID try to get their child services through the public schools, and were denied.

Posted by: floof | July 6, 2009 10:49 AM | Report abuse

I am an administrator at a private school for children with learning disabilities (our focus is reading disorders). In the 10 years I have worked here, and upwards of over a thousand students have come and gone, I have seen exactly ONE student win the battle to get his public school to pay for it. And his was a protracted, prolonged battle, believe me. As an admissions officer I talk to people every single day who are trying to get their kids some help in the public system and are unable to do so, and are at their wit's end because they cannot afford private school, yet their kids are suffering.

My own nephew is a good example of this: in his younger years he had pronounced articulation difficulties and was tested by his public school to see if he qualified for speech services. His articulation was measured to be in the 11th percentile, so obviously below average (when he has a slightly above average IQ) and with a pronounced difficulty. However his public school district has the cut-off for speech services set at 7th percentile or below. So, he didn't qualify. Now I get that the resources are limited and they can't help everyone, but what we have here is a child with an obvious, pronounced difficulty, who doesn't qualify for help. And that's just a tiny little "mild" example of the many, many cases I have seen over my years in this field.

Most of the public schools around here use the 15-point discrepancy method: the child's IQ is compared to the standard score of say a reading test for example, and if there's a greater than 15 point discrepancy, the child qualifies for services. So a child with an IQ of 105 who scores below 90 on a reading test would qualify for help in reading. The problem is that there are many, many children who don't quiiiiite make the 15 point discrepancy, they may have a 13 or 14 point discrepancy, and they won't qualify, regardless of how poorly they are doing in school. There is a wide variation of the types of tests that are given which can have an impact on the scores, and as you can see even one little point makes a difference. And so that's how people in jobs like mine, come to be talking to a tearful mother of a 3rd grader who can barely read, and is struggling mightily in school, and whose self esteem has gone down the toilet and the little girl says she wishes she'd never been born, and the public schools throw up their hands and say "but she doesn't qualify!". Ugh.

Posted by: auntieW | July 6, 2009 11:00 AM | Report abuse

My child (diagnosed PDD-NOS and ADHD and now identified as gifted and talented), has had special ed services since kindergarten. The public school system couldn't (or wouldn't) meet his needs, so his father and I pushed for a non-public placement. We tried a couple of non-public schools. While they were excellent in providing services, they weren't meeting his needs academically. It turns out that the non-public couldn't (or wouldn't) provide TAG-like instruction for him. So what were his parents to do?

We are going to try an autism program back in the public school. I am praying this will better meet the academic needs while providing for the sensory and other needs. I am praying there won't be many tantrums or behavioral issues. I am praying that the desire to have neuro-typical friends will motivate him to try hard to succeed in this inclusive placement. I am hopeful, but scared.

I am also disappointed. The non-public placment is supposed to be the solution for a public school that fails to meet the child's needs. But what happens if that's not the case?

Posted by: theoriginalmomof2 | July 6, 2009 11:03 AM | Report abuse

@mlc2 - My apologies. I misread your comment as referring to special needs kids in general, rather than the specific case of this ADHD student.

On the legal end, I must say that the Alexandria (VA) has been very forthright with us. All of our rights, including right to appeal, have been explicitly discussed. I haven't followed this case closely, but wonder if the school system could have saved itself a lot of trouble by reconsidering the parents' case after further diagnosis.

Although I referred to Secondo, we've had further experience with his twin brother Primo*. After Secondo started attending special needs classes, we sent Primo to a neighborhood preschool so that he wouldn't be alone for several hours a day (with his mother or nanny). Primo's preschool teacher had some worries as he had difficulty interacting with the teacher or his peers. It came as a real shock to us as Primo is smart as a whip. However, he has difficulty with social interactions and will be attending a special needs class a couple days a week in addition to his regular preschool. Once again, Child Find was very helpful; you just have to be patient.


*The pseudonyms are taken from Big Night, one of my favorite movies.

Posted by: FairlingtonBlade | July 6, 2009 11:05 AM | Report abuse

I think the real problem is that they rely too heavily on these standardized tests and not enough on actually looking at the child. When my oldest daughter was 3, I took her to childfind because I had some concerns about her fine motor skills (she still couldn't feed herself with a fork, use a crayon, etc). She underwent the testing, and we were shocked that she showed delays in almost every area. I showed the results to my friend (a special-ed teacher) and she kept shaking her head and saying, "I don't understand. These are the kind of results you'd expect from a kid with mental retardation." And she knew my daughter and that she was a bright, social kid who did NOT have the overwhelming majority of the problems they were trying to diagnose her with.

We gave up on dealing with these people and got a private OT and sent her to a regular preschool. She did fine at school, is now starting to write her letters, and clearly not mentally retarded.

I later asked some people at the infant and toddler version of childfind, which handles kids younger than 3, about this and they sort of rolled their eyes- they basically have little respect for the county services that are designed for older kids. What they told me is that they are very rigid and rely exclusively on the tests they give, which are especially difficult to give to a young child who may not want to cooperate with the test administrator or may not understand what is being asked of them. In our case, I met the woman who did my DD's testing after the test, and she was an unpleasant, nasty jerk who didn't seem to much like children at all. I imagine my daughter probably just wanted her to leave her alone.

Posted by: floof | July 6, 2009 1:50 PM | Report abuse

This isn't the place for me to attempt the 1000-page novel of older son's education. He's 17, and will begin his senior year of high school in the fall.

It's been a very long and very difficult journey to get here. I've considered going back to school myself for a law degree, because I've already spent so much of my time and energy reading state education laws that I *ought* to have the degree to go with it.

Not surprisingly, much of the boy's successes have come from his father and me walking into every meeting with a carefully planned agenda - which was often *very* different than the agenda of the school district - and with all the necessary documentation and legal-ese to get what our son needed. Sounding like we'd just come from our attorney's office wasn't always necessary, but most of the time it was what won our arguments.

We haven't faced much argument or disagreement over "necessary and appropriate services" since the middle school years. It seems most difficult for parents at the beginning - we're all struggling to learn what our child's disabilities are, what services are available, what's needed for our kid which isn't (yet) available, and who the various players are, and how we all get together and figure out what the schools are going to do about the kid's problems.

After 13 years of this, everyone on our IEP team (parents and school officials) knows each other, and knows our boy's strengths and his deficits. We know how to modify the standard curiculum now, and staff know which general ed teachers will follow the IEP (and which ones will try to ignore it if they can!), so they can put the kid into the classrooms of teachers who'll work with the team to make it all come together.

And we've been incredibly lucky in one way - our son's personality. So many kids with disabilities, especially autism-spectrum disorders, have difficult personalities. Our boy somehow brings out nearly everyone's urge to help and support and nurture him. People (teachers, administrators, other students, and other parents) *like* him. They want to see him "get it" (whatever "it" is that he's learning that day), they want to see him light up with success, and they'll do whatever they can to help him. Without that, I doubt he'd have gotten so far.

If we can find a way for him to pass the CAHSEE (California High School Exit Exam) he'll graduate in a year. If he doesn't pass the exam, he'll still have completed all the rest of the high school requirements with a 3.67 GPA.

When he started in a Communication Handicap preschool class all those years ago, completing high school on time wasn't even a distant dream on the horizon. Now it's becoming a reality.

Posted by: SueMc | July 6, 2009 2:57 PM | Report abuse

I think what mlc was indicating was that each school district has limited funds, and it is very difficult to do everything that is asked of it for everyone all the time with the limited funds they have (although you'd think they are unlimited, since they can just raise their taxes and no one blinks ever, but I digress).

It is obviously very difficult when one has a child who has issues. And then a parent needs to figure out what exactly that means, and then go through what most of you are describing as horrific hoops to get education for your child.

This screams, more and more, that we are in need, seriously, of more school choice. Everyone should be able to choose how and where their children are educated, not just those with an IEP, not just those who can afford it.

Alas, that is unlikely to happen in my lifetime.

Posted by: atlmom1234 | July 6, 2009 4:16 PM | Report abuse

@atlmom - mlc's follow-up post cleared it up for me and made a valid point: paying for private schooling for a child with ADHD is an unnecessary expense. Such a child can be educated in the public system.

You're right that there are limited funds and one must make choices. Educating special needs children is 'specially expensive, even considering federal matching funds. In the case of my child, he attends school for 3 hours a day in a classroom with a teacher, an aide, and 6 kids and also receives speech therapy. So, the student-teacher ratio is low and that means it's going to be relatively expensive.

The argument I will make is that it's likely to be less expensive now than dealing with an autistic child with behavioral problems. Secondo has made rapid progress and is on a normal development track cognitively. We're lucky that we identified his needs early and it sounds like I'm especially lucky that we're treated as full partners in our child's education.

I'll stay away from the school voucher/choice issue, but I think we can agree that all children need an appropriate education.


Posted by: FairlingtonBlade | July 6, 2009 6:26 PM | Report abuse

Fblade: agreed on all points. It's disheartening, though, thinking about parents who don't have the means to get the diagnoses, etc, and since we have already established that the schools are not responsive, well, those kids may never get what they need.
(I always say: you can pay for schools now or you can pay for prisons later. Which society do you want to live in?)

Posted by: atlmom1234 | July 6, 2009 7:45 PM | Report abuse

@atlmom - Agreed. I'm quite lucky in that we had twins as it made it obvious that one was lagging. And twice lucky as we had no idea that Primo was lagging and a preschool teacher caught it. Not a person who gave us warm fuzzies, but she picked up on his issues.

I think of the kids whose parents don't have any idea that their child is lagging. Or any idea of the resources that are available. Heck, I'd never heard of Child Find before the developmental specialist at our pediatrician gave us some initial guidance. But for the grace of God...


Posted by: FairlingtonBlade | July 6, 2009 9:20 PM | Report abuse

My daughter is a 15 year-old, about to start her sophmore year in HS up here on the Main Line of Philadelphia. She does pretty well, but everything goes through the filter of autism. Every year we work hard on her IEP -- some teachers make a real effort to give her the best education they can, and others who cannot be bothered with IEPs.
My biggest frustration with the school is that they refuse to give her Extended School Year status. I think she could be getting some services during the summer that would let her lead a more 'normal' and successful school year -- one with electives instead of speech therapy and social skills class. Oh well.
My biggest fear is knowing that her peers see mostly her failures (that at 15 she still cries in class, gets frustrated and bangs her head, can be rigidly prudish, etc). She wouldn't be so conspicuous in a private school full of kids more like her. As a parent, you never know if your choices are going to pay off.
I'm going to ask you all to talk about your special ed kid with your coworkers and family. People need to see how many kids are out there and that their disabilities are not made up. They need to know how many expenses the parents pick up themselves so it isn't just gimme, gimme (we're into 5 figures every year). I'm also encouraging you all to advocate for every kid with disabilities, not just your own. I live on the Main Line, my daughter has 2 parents committed to her, she goes to a well-funded school district, her autism is not as severe as a lot of kids. Every time I go to Autism rallies I see A LOT of kids who who have none of this going for them, and we have to work for those kids, too.

Posted by: margaretmeyers | July 6, 2009 9:53 PM | Report abuse

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