Are school districts or insurance carriers responsible to pay for autistic students to receive services and treatment in a school setting?

Both- according to a recent Philadelphia Court of Common Pleas decision.

Judge Fox ,in the case of Anthony Burke v. Independence Blue Cross,  ruled that the PA Autism Insurance Act ("Act 62"), which went into effect on January 1, 2010, requires that if an insurance carrier chooses to cover a type of treatment or service for any other condition, then it must also cover that treatment or service for autism service disorders regardless of setting.  Meaning, even if a health insurance policy otherwise excludes services in schools, Act 62 overrides such an exclusion because Act 62  provides that insurers must pay for rehabilitative care, including applied behavioral analysis ("ABA").  While Judge Fox noted the overlap between IDEA and Act 62, he ultimately decided that the legislature, by creating overlapping statutes, purposely chose to pass some of the cost of ABA services to insurance carriers.  Of course the decision in Burke has no relevance when Act 62 does not apply, such as in the case of self funded healthcare programs. 

 

Not surprisingly, Independence Blue Cross filed their appeal on August 16, 2011. 

Pa. State Legislature Considers Changing Special Education Funding Again

The Pennsylvania State Legislature is again considering changing the manner in which it funds special education in local school districts.  You may recall that a similar effort was made two years ago, but the legislation simply got stuck in committee in the Senate after being pasted by the House.

As was noted the last time that a change was considered, the caluculation used to determine the amount of money allocated to each school district presumes that 16% of a school district's students are special education students.  There are two bills, House Bill 704 and a corresponding bill in the State Senate. 

Both bills were only recently introduced and will likely go through several changes as they make their way through committees.  Check back for further details on this legislation.

Third Circuit Court of Appeals provides helpful reminder of Two Well established principals related to IEP development

In a recent unpublished decision, the Third Circuit Court of Appeals reaffirmed two well established legal principals under the IDEA that are helpful for school entities to remember in the development of a IEP.

First, the appropriateness of an IEP is to be judged on what the school district knew at the time of the development of the IEP. More specifically, the Court found correct the finding that “any lack of progress under a particular IEP … does not render that IEP inappropriate.” Rather, school districts need to determine if the proposed program is reasonably calculated to provided meaningful progress and, if so, should not be held liable if in the end it does not provided the expected progress.

Second, the Court reaffirmed the principal that the school district, not parents or courts, have the discretion to determine the appropriate educational methodology in educating a student.

While both of these principals are not new, this case provides a helpful reminder of both.
 

Conducting Special Education Evaluations without Fear

When in the midst of a due process hearing, many school districts struggle with whether it is a good time to do an evaluation of a student out of fear that the evaluation will be used in an attempt to show that prior programing by the district was inappropriate.  In a recent unpublished decision, the Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, provided school districts some comfort in performing such evaluations without fear. 

In the case, parents attempted to use a fall 2003 evaluation to establish that the district's 2002-2003 IEP was inappropriate.  The court found that this approach was not permissible, given that the appropriateness of an IEP is to be determined from the the information available to the IEP team when it develops the IEP.  However, it is important to note that in this case the student was not attending school in the district, as the parents placed the student elsewhere and sought tuition reimbursement, and presumably the 2003 evaluation could be used to show progress or lack of progress, if the student had been in the district. 

The case, consistent with several other Court of Appeals, makes clear that the appropriateness of an IEP is to be based on the information available at the time the IEP is developed and subsequent evaluations should not be used to show the IEP was inappropriate.  This should give school districts some comfort in conducting evaluations, even in the midst of an ongoing due process hearing.    

Short Term Depression is not a Disability

In a recent case out of the Third Circuit Court of Appeals, Seibert v. Lutron Electronics, the court held that depression that was not permanent and caused by specific non-recurring events did not qualify as a disability under the ADA.  In Seibert, the plaintiff-employee suffered from depression that was caused by "her fiance's alcohol consumption, the stress of planning her wedding, financial problems, and her grandfather's illness."  This depression lead to the employee taking a leave of absence from April 2005 to October of 2005.  However, upon returning to work the employee continued to have attendance issues, which the court found were not attributable to depression, and the employer offered the employee the option to either resign her position or be terminated, with the employee choosing to resign.

The court explained that "[t]ransitory, temporary or impermanent impairments" do not meet the definition of an impairment that substantially limits a major life activity under the ADA.  In this case, accordingly, the court found that the depression was temporary.  The ADA itself defines transitory as lasting less than 6 months. 

The case is helpful for school districts in the ADA and Section 504 employment context in that it shows that short term depression caused by a specific event is not a disability.  Likewise, it is helpful under Section 504, which also applies to most school district, because Section 504 borrows the definition of disability from ADA.  Moreover, while perhaps a little less clear, this could also have implications for students in that students who claim to be disabled under Section 504 and/or IDEA due to depression might not so qualify if the depression is short term in nature and attributable to a specific event. 

TWO YEARS MAY REALLY MEAN TWO YEARS ... MAYBE

In a new case out of the Middle District of Pennsylvania, Baker v. Southern York Area School District, the District Court applied in a Section 504 FAPE case a strict two year statute of limitations, borrowing the statute of limitations from the IDEA. Looking to a recent case from the Third Circuit, P.P. v. West Chester Area School District, discussed below, the Court simply looked to the filing date of the Complaint and limited the claims to two years prior to that date. However, it appears that there continues to be cases all over the map on how to apply statute of limitations in IDEA cases. It appears that will likely to continue until the issue is decided by the Third Circuit.   

Providing the Least Restrictive Environment in Special Education: It's Easy to Say, not Always Easy to Apply

The issue of providing special education services in the least restrictive environment, also known as mainstreaming, is an area of law in which the basic legal principles may be easily stated, much like the elements of torts. But in practice, it can be difficult to apply and raises not only legal concerns, but also philosophical and educational concerns.

The mainstreaming requirement provides that children with disabilities should, to "the maximum extent appropriate," be "educated with children who are not disabled." See 20 U.S.C.A. § 1412(a)(5)(A). While there may be disagreement about whether this mandate has been met in a particular case, Pennsylvania school districts have met this legal requirement overall.

Mainstreaming can be a complex issue over which parents of students with disabilities often disagree. Its application to particular cases tends to be fact-specific and is an issue that courts, hearing officers, parents and school districts have sometimes struggled with. As the U.S. District Court for the Eastern District of Pennsylvania noted in Greenwood v. Wissahickon Sch. Dist. , there is "inherent tension between the [IDEA's] goal of mainstreaming a disabled student and its requirement to provide an individualized educational program meeting the student's special needs."

In addition, the U.S. District Court for the Western District of Pennsylvania, in Leighty v. Laurel Sch. Dist., emphasized that the focus is on providing the student's education in an "appropriate educational environment."

A review of several recent cases in this area reveals that parents of students with special education needs take diverging views, with some demanding more restrictive placements than those offered by the local school district and others saying districts have not done enough to mainstream their children. These cases illustrate the complexity of the issues faced by school districts in attempting to meet this mandate.

One series of cases demonstrates that parents of students sometimes seek a placement that is more restrictive than that suggested by the school district, primarily in the form of a private placement. For example, in the case of Leighty , the parents of a disabled student sought to have the district pay for a private placement recommended by their expert, a notion that was rejected by the court, which found that the district had educated the student with inclusion into regular education and that approving the private placement at district expense would be inconsistent with the mainstreaming requirements.

In the Eastern District case of Daniel S. v. Council Rock Sch. Dist. , the parents of a student with a specific learning disability placed the student at a private school and then sought tuition reimbursement, contending it was an appropriate special education placement for the student. The court rejected the request for reimbursement, finding that the school district had offered the student a special education placement that included inclusion in the regular education setting and in which the student had previously made educational progress. Accordingly, the court found that the more restrictive environment chosen by the parents was not appropriate.

Finally, in the Eastern District case of Sinan L. v. Sch. Dist. of Philadelphia , the parents of a disabled student sought tuition reimbursement for placement at an out-of-state residential placement, when the district had offered a placement at a private day school. In applying the mainstreaming requirement, the court explained that a residential placement is inappropriate when a less structured environment, such as a day school, will meet the student's needs.

A second series of cases outlines the view that some parents hold of the need for more inclusion than provided by a school district. In the case of Lauren P. v. Haverford Sch. Dist. , the Eastern District was faced with a case in which the school district offered an autistic student a part-time placement in regular education and part-time placement in learning support, or a special education placement, while the parents sought full-time placement in a regular education placement with supports. In upholding the school district's offered placement as appropriate, the court noted that the school district had fully considered the possibility suggested by the parents and considered a "continuum of alternative placements" as part of the process in reaching its conclusion, including fully considering the possibility of accommodating the student full-time in the general education environment. The court further explained that in considering these various options, the school district found that the student would not make progress in math and language arts if placed in the regular education classroom, but would in the learning support classroom, and that outweighed the benefits of mainstreaming the student.

In Greenwood v. Wissahickon Sch. Dist., the parents of a student who was diagnosed with severe mental retardation and static non-progression encephalopathy sought to have the student put in regular education classes with supports. The court found that the school district had made significant efforts to provide the student with a meaningful benefit from inclusion in the regular education classroom, but that the student received little, if any, educational benefit from the inclusion. The court upheld the placement provided by the district, finding that any further inclusion would hinder the student's own educational progress.

Thus, in order to comply with the requirements of mainstreaming, school districts should consider all possible placements for a student — including placement in a regular education classroom — make an effort to make mainstreaming work as much as possible and, most importantly, ensure that the placement provided offers the student an opportunity to learn. School districts do not have an obligation to mainstream students when doing so would impede their ability to learn.

Overall, the statistics show that school districts in Pennsylvania are well aware of the mandate to provide special education in the least restrictive environment. Nationally, the trend shows that in 1999 about 6.5 percent of special education students were placed outside of the public school setting and that number was down to just over 4 percent by 2005. Pennsylvania is near the national average, according to the Pennsylvania Department of Education, which found just over 4 percent of special education students statewide were placed outside of the public school in 2007 and 2008. Looking to the amount of time that special education students spend outside of the regular education classroom, nationally, close to 25 percent of special education students spent more than 60 percent of their time in a school outside of the regular education classroom in 1989, while that number was down to just under 17 percent in 2005. In Pennsylvania, that number was lower than the national average at close to 11 percent in 2007 and 2008. It is clear that Pennsylvania school districts are not only aware of their mandate to provide special education in the least restrictive environment, they make a diligent effort to meet that mandate and have had success.

While parents of special education students and school districts may agree to disagree over how to meet the mandate of providing special education in the least restrictive environment or whether that mandate has been meet in a particular case, in this area of the law, not only are Pennsylvania's school districts aware of the requirement, they have clearly made a diligent effort to meet it.

This blog posting originally appeared in the December 29, 2009 edition of The Legal Intelligencer and is posted here with permission.  

THIRD CIRCUIT GIVES SOME GUIDANCE ON STATUTE OF LIMITATIONS UNDER IDEA AND SECTION 504, BUT STILL LEAVES SOME ISSUES UNRESOLVED

The Third Circuit Court of Appeals has issued a decision addressing the issue of the statute of limitations, or the time limits for bring a case, under both Section 504 and IDEA. In P.P. v. West Chester Area School District the only clear guidance that is given is that the statute of limitations provided for in IDEA is also applicable in Section 504 cases. Section 504 does not provide any statute of limitations. The Court also indicates that the exceptions available to the statute of limitations under IDEA would also be available under Section 504.

However, the Court leaves unanswered two issues. First, the Court refused to address whether the statute of limitations under IDEA is applicable at all to cases in which the alleged improper conduct occurred prior to the addition of the time limits in IDEA, which were new to the statute as reauthorized in 2004. The other unresolved issue is whether a strict two year statute of limitations applies or whether the “two plus two” concept is applicable. One approach would limit cases to strictly looking to alleged wrongful conduct two years prior to the filing of the Due Process Complaint. The second approach allows looking back two years from the date the parents of the student knew or should have known of the alleged wrongful conduct and then allows the parents two years from that date to file the claim. Thus, in theory, under the second approach you might be able to look at a four year window in total.

The Court does not address these two remaining issues and has left them for another day.   

A JUSTICE SOTOMAYOR COULD BE A FRIEND TO SCHOOL DISTRICTS IN THE AREA OF SPECIAL EDUCATION

As the Senate determines whether Judge Sotomayor will become Justice Sotomayor, one issue that is likely to receive very little attention is her views on interpreting the Individuals with Disabilities Education Act (“IDEA”), a statute which provides various rights to students in public schools who have disabilities as well as to their parents. While there is always a risk in trying to guess what a judge will do when he or she becomes a justice and often times the facts of a particular case drive the result of their decisions, it appears, based on the limited information available, that a Justice Sotomayor would be a friend to school districts in this area. A few examples are helpful.

 

First, in the area of attorney’s fees, Judge Sotomayor has taken a strict interpretation of the portion of the statute which allows parents, when they are successful at a hearing to determine what special educations services are appropriate for a student, to obtain payment for counsel fees by the school district. In several opinions, Judge Sotomayor has taken the view that parents are only entitled to obtain attorney’s fees when that right is clearly established under the statute and refused to allow attorney’s fees in cases where the right was questionable or non-existent under the statute. Such a view is clearly one that is friendly to school districts and in many respects encourages parents and their counsel to be more reasonable in their efforts to resolve such cases prior to hearing.

 

Second, in reviewing the decisions of hearing officers and lower courts, in several cases she has deferred to state level hearing officers who have found in favor of school districts, especially in the area of tuition reimbursement. Judge Sotomayor has joined in several opinions that, when appropriate, overturn decisions of district court judges who have attempted to substitute their own opinion for that of the state level hearing officer to award parents tuition reimbursement. Such a role of ensuring that state level hearing officers decisions on the complex decision of tuition reimbursement, which many times results in the denial of the same to parents, is view that is helpful to school districts by limiting liability for tuition reimbursement only to those cases where it is clearly appropriate.

 

Finally, in the area of applying the statue of limitations under the IDEA, an issue which many courts have struggled to find a consensus, Judge Sotomayor has joined in at least one opinion that takes the stricter view on the statute of limitations finding that two years means two years. While other courts have found ways to try to expand the statute of limitations, a view that leaves open the possibility of more liability to school district, Judge Sotomayor joined in an opinion that would appear to limit potential liability to district.

 

Thus, although it is possible that a Justice Sotomayor would take a different view on cases as a Justice of the Supreme Court, based upon her record as an Appeal Court Judge, she may be a Justice that schools districts find to be district friendly in the area of special education. 

 

This blog posting appeared in The Legal Intelligencer on Monday, July 20, 2009. 
  
  

 

SUPREME COURT CLOSES OUT ITS TERM BY REFUSING TO HEAR TWO SCHOOL RELATED CASES

The United States Supreme Court finished out its term last week by refusing to hear two cases related to schools.

First, in the case of Truth v. Kent School District the Court was asked to rule on whether a school district could refuse to recognize a Christian club named "Truth."  The school refused to recognize the group on the basis that its name might be a concern and that members were required to sign a statement of Christian faith, which violated the district's non-discrimination policy.  The club filed suit claiming the action violated the Equal Access Act and the First Amendment, but two lower courts disagreed.  The Supreme Court declined to hear the appeal, which means the lower court decisions stand. 

Next, in the case of Winkelman v. Parma City School District, the Court refused to hear an appeal of parents who were seek tuition reimbursement and raised issues of whether or not a court may look beyond the four corners of an IEP to determine if it is appropriate.  The trial court looked beyond the IEP in its decision and denied tuition reimbursement, with the decision being upheld by the Sixth Circuit Court of Appeals.  This is the second time the Winkelman's attempted to go to the Supreme Court, the last time they were successful and the Court found that they could proceed without counsel and represent the student in Court.  This subsequent appeal was on the merits of the case.       

Study questions whether schools fail to find held-back students eligible for special education

A recent study looked at students held back a year from kindergarten to third grade and concluded the schools are not properly identifying held back students as in need of special education.  Forbes on line reported on the matter ("Special Education Services Lacking for Kids Who Repeat a Grade").

The study found that 12.9 percent of the students had on IEP during the held-back year and that 18.2 percent received an IEP within five years of being held back.  To me, the study seems possibly flawed.  The study seems to operate with a presumption that a held-back student must be in need of special education, yet the reasons for holding back are many and varied. 

Moreover, the apparent presumption goes completely against the IDEA of 2004's effort to keep students out of special education through the use of Early Intervening Services (different than Early Intervention).

But like so much about special education, statistics reveal little.  These percentages not only do not tell us the reasons for holding back a particular child, the numbers say nothing of what efforts were made for each particular student.  More informative might be the percentage of students evaluated for special education eligibility, the numbers involved in non-special education intervention programs, like Title I or a hybrid classroom that many schools offer for students needing more development time. 

Ultimately, the real question, however, is individualized.  It seems quite a leap to question compliance with child find without a study that investigates a large number of individual cases.

Stimulus Money Flows to Pennsylvania Schools

By Timothy E. Gilsbach

Included within the federal funding provided for in the American Recovery & Reinvestment Act (ARRA) is money for public education.  It is estimated that Pennsylvania will get $2.6 billion of funding for education to be spend on IDEA programs, Title I and Title II programs and on the State Fiscal Stabilization Fund from now until September of 2011.

While the ARRA imposes limits on how the money will be spent, the legislature is responsible for allocating the funds and may do so as it deems fit, subject to the limitations included by the federal government.  It appears that at least several proposals are in the works on that front. 

In addition, Districts who receive the funds should be aware that there are various limits on how the funds can be spent.  Finally, it is important to note that charter schools, in addition to school district, will qualify for some of the funding. 

Additional updates will be posted as the process of allocating the funds moves forward.    

Pennsylvania House Considering Bill That Would Change How Special Education Funding is provided to School Districts

By Timothy E. Gilsbach

The Pennsylvania House is currently considering House Bill No. 704, that would change the way that state funding for Special Education is provided to local school districts.  Under the current approach, each district is provided funding under the assumption that sixteen percent of its students are eligible for special education.  The proposal currently before the House would change the manner in which this is calculated.

According to the Bill 704's supporters, the Bill, if passed, would base funding upon a five year average of actual student enrollment for special education for each district.  In addition, it would multiply the amount of money provided by the state to districts for special education students to 1.3 times the amount provided to regular education students. 

Bill 704 was only recently presented and, if passed, is likely to change.  Check back for further detailsas it makes its way through the legislative process. 

IN A NOD TO JUDICIAL ECONOMY, THIRD CIRCUIT RULES THAT COUNTERCLAIMS BY SCHOOL DISTRICTS IN IDEA CASES ARE NOT LIMITED BY THE NINETY DAY TIME-LIMIT UNDER IDEA

By Timothy E. Gilsbach

When a school district goes through an IDEA Due Process Hearing and a mixed result comes back, it is sometimes difficult for the district to determine if an appeal to the Federal District Courts is appropriate or prudent. The Third Circuit Court of Appeals has now made that decision just a little easier in the case of Jonathan H. v. Souderton Area School District

 

In Jonathan H. the Administrative Due Process Hearing ended with a mixed result.  The Parents waited until the 90th day after the issuance of the Hearing Officer's Decision to file their Complaint in the Federal District Court.  Put another way, the Parents waited until the last possible day to file.  The school district filed an Answer to the Complaint asserting a counterclaim in the nature of a challenge to portions of the Hearing Officer’s decision. The District Court found the counterclaim was untimely because it was not brought within 90 days of the Hearing Officer’s Decision and dismissed the same as untimely.

 

The Third Circuit overturned that decision, reasoning that a counterclaim is reactive and not an action brought under the IDEA.  Accordingly, counterclaims in IDEA cases are not limited to the 90 day time-line, but instead are controlled by the time-lines for an Answer under the Federal Rules of Civil Procedure.  In addition, the Court explained that requiring Districts to bring an action in the form of a counterclaim would result in district’s filing as a protective measure, just in case the Parents filed, which would create unnecessary litigation.

 

The case makes things a little easier for school districts that may not wish to appeal mixed Due Process Hearing results, but do not want to waive the right to raise issues on appeal should the Parents choose to appeal.  

Special Education Contingency Fund Deadline

Schools in Pennsylvania have until January 30, 2009 to apply for special education contingency funds.  The Pennsylvania School Boards Association issued the following statement.

The Department of Education is reminding school administrators that applications for special education contingency funds currently are being accepted via the Web-based application system. Local education agencies that wish to submit contingency fund applications have until Jan. 30 to complete the application process. The user identification and password from the previous year may used for the 2008-09 applications. LEAs that have not previously received passwords should request them from cfunds@leaderservices.com to access the e-application and complete the process. If you have not received a response to your password request within a day, notify Dr. Ron Wells at ronwells@state.pa.us or call (717) 783-6882. Applications will not be accepted after Jan. 30. The guidelines are available here.

Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

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U.S. Department of Education proposes changes to special education regulations

On Tuesday, May 13, 2008, the U.S. Department of Education published proposed changes http://edocket.access.gpo.gov/2008/pdf/E8-10522.pdf to its special education regulations.  The Department seeks public comment on the proposed changes.  Details on how to submit comments are included with the announcement.

Among the proposed changes are new provisions to give a parent the right to unilaterally exit a child from special education.  The LEA would have no option or recourse, such as a due process hearing, to override the parent's decision. 

The Department also proposes to clarify its long-standing position on non-attorney representation at due process hearings.  The proposed changes state that whether parents can be represented by a non-attorney advocate would be determined by state law. 

Other proposed changes include amendments to subgrant funding processes, and state and local efforts regarding employment of highly qualified staff. 

The deadline to submit comments is July 28, 2008.

Fourth Circuit placement decision revisited: the last word

A few months ago and few times, I wrote about a “problematic” placement decision by the Fourth Circuit in a case coming from Virginia (here, here, and here). Since then, there is more information to provide about the legal issues as well as a comment that is curious.

The school sought review in the U.S. Supreme Court. The National School Boards Association (“NSBA”) and others supported the petition seeking review. See the NSBA brief here.  The Supreme Court denied review.  The NSBA position was the same as my previous entry yet with even more legal support, including review of agency interpretations that “location” means the type of in-school setting where provision of the special education and related services will occur, such as a resource room. “Location” does not mean a particular school.

Finally, the comment. The commenter took objection to my observation that “[t]he best solution to problematic law, as always, is to create and maintain a healthy and cooperative relationship with student families.” Commenter wrote “[i]nteresting. So instead of complying with the court's ruling, you advocate that school districts talk nice to the parents and pull the wool over their eyes. I don't think that's good advice.”  Never did I suggest non-compliance and little do I think that healthy and cooperative relationships are based on the deception and misrepresentations that the commenter suggests.

The cases are replete with admonitions that IEP development is to be a cooperative process. The IDEA requires transparency, at least from the school, through things like prior written notice, procedural safeguards, access to records and the like. In the very case in question, the facts established that parents actually decided before hand that A.K. would attend their selected school only, while the IEP Team discussed the two schools under consideration, that parents knew the two schools proposed, and that the school's fault was simply not listing the two schools that were discussed within the document. 

I sit on both sides at the IEP Team table. For what it is worth, I believe open and honest communication does as much or more than mere technical compliance. After all, technical, legal compliance does not always equal moral compliance.  When dealing with our kids, I would like to think, and work for, improving our collective abilities.

Advanced placement and disabled students: U.S. Department of Education guidance

In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

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Update to a problematic placement decision

Two previous entries (here and here) addressed a problematic decision from the Fourth Circuit  arising out of Virginia.  The school district sought further review by the U.S. Supreme Court.  Recently, the U.S. Supreme Court denied further review.  The decision is now final, but not the ramifications.

Changes for Pennsylvania special education practice

Bold prediction: special education disputes will lead to more litigation. Perhaps it is not so bold, after all. But if Pennsylvania finalizes the proposed changes to Chapter 14 of the Education Regulations and removes the second level of administrative hearing appeal, I believe the legal practice will undergo some significant changes.

Delving into some generalizations, the second level appellate review has been viewed as a low cost second chance. Most cases (but not all) proceed to that level. But, I think, most cases stopped after two runs through administrative review. This is especially so if both levels of administrative review yielded the same essential result. Most courts, we tend to think, would not want to second-guess two levels of administrative review.  In playing for the best-out-of-three, if the hearing officer and the appeal panel came to quite different results, the case is more likely to get to court.  And, finally, in those cases offering very mixed relief after two reviews, the parties seem to realize they are better off taking matters in to their own hands and settling the claims.

While lawyers on both sides may have their gripes about the appeal panels, the process probably, perhaps in a perverse way, resulted in less cases going to court. So what might happen without that second level of review?

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Medicaid reimbursement rule is now final

Today the Centers for Medicare and Medicaid Services ("CMS") published its final rule eliminating certain reimbursement to public schools.  The rule takes away reimbursement to schools providing transportation and administrative services to Medicaid eligible children with disabilities.  The final rule takes effect on February 28, 2008. 

I previously commented on the proposed rule change here and here.

The CMS received 1,240 public comments regarding the rule change, but found it should adopt the rule without any change.   Those comments, and CMS's response to them, reinforce what I previously said: that federal funding for special needs children needs to be rationalized.  The CMS response to comments demonstrate the lack of ultimate responsibility when federal funding is viewed as an agency-limited activity rather than a national need.

The CMS writes, "[t]he need for schools to obtain additional funding in itself does not justify continued Federal Medicaid reimbursement."  This and similar responses to comments shows that each agency will rightly limit itself to its statutory authority (we can question, of course, its interpretation of that statue).   The comments highlighting the federal failure to live up to its promised 40 percent special education funding, and the CMS responses, show that only Congress, which makes the promise and is authorized to allocate the money, is the only responsible party for this funding mess.

Update to: special education placement and the problematic decision out of Virginia

Previously, I commented on the a problematic placement decision from the U.S. Fourth Circuit Court of Appeals, A.K. v. Alexandria City School Board.  In that case, the appeals court majority really got it wrong on a technical, but important, meaning about the "location" of a special education placement.

The school district has since filed for review by the Supreme Court.  Alexandria City Sch. Bd. v. A.K., No. 07-541.  The National Boards Association has filed a brief supporting such review and seeking permission to participate in the case. 

The Supreme Court is not likely to grant review.  But it should.  Well, only if it would fix the problem.

More on medicaid special education cuts

The National School Boards Association ("NSBA") has been in front of this issue and doing its best to change the impact of the U.S. Department of Health and Human Services' ("HHS") efforts to effectively cut special education funding.  I reported on the new proposed HHS rule in the September 10, 2007 entry.  More information about the proposed cuts and NSBA's efforts can be found in the August 2007 Legal Clips.  An index and links to many NSBA documents produced in its advocacy against the change is found in the Advocacy and Legislation section of the website.

I believe the issue of special education funding - and the lack of it - is of great concern to both parents and schools.  Hopefully, together parents and schools will fend off any rule change that in effect cuts financial support for our special children.

New proposed federal rule will take away Medicaid support for special education services

On Friday, September 7, 2007 the federal Department of Health and Human Services (“HHS”) announced its proposed rule change to eliminate Medicaid reimbursement to schools providing certain administrative services and transportation.  The proposal is lengthy, but as the summary states:

under the proposed rule, Federal Medicaid payments would no longer be available for administrative activities performed by school employees or contractors, or anyone under the control of a public or private educational institution, and transportation from home to school and back for school-aged children with an Individualized Education Program (IEP) or an Individualized Family Services Plan (IFSP) established pursuant to the Individuals with Disabilities Education Act (IDEA).

The proposal rule would not affect federal reimbursement for direct medical services such as speech and physical therapy. 

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Special education placement: a problematic decision out of Virginia

“Location” and “educational placement (or setting):” in special education, what does each mean? Location in an IEP is commonly taken to mean the place where a service occurs, such as “learning support classroom” or “counselor’s office,” within a physical setting. Educational placement is an pedagogic term of art for a program service, such as “learning support,” “emotional support,” “Approved Private School,” and “autistic support.”  The public agency usually selects the location, while the IEP Team decides the placement.

Except for a dissenting opinion that understands the distinction, the Fourth Circuit’s decision in A.K. v. Alexandria City School Board, slip op. C.A. 06-1130, 484 F.3d 672, 2007 WL 1218204 (4th Cir.), conflates the concepts.  The majority ruled the school district did not provide FAPE because the IEP identified “Level II--Private Day School placement” rather than a specific private school. 

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OSEP letters January - March 2007

In Saturday’s Federal Register, the U.S. Department of Education published its quarterly listing of letters and other documents of interest regarding Department interpretations of the Individuals With Disabilities Education Act. The letters are from January through March, 2007. The letters should be available at this part of the Department’s website, although at the moment the site is current only through 2006.

Included in the list is a letter addressing criteria to determine whether a speech and language impairment adversely affects a child's educational performance as well as how a school may respond when speech sessions are missed because of student or provider absence, and an explanation of the requirements governing the continuum of alternative placements. All in one letter. 

Other issues addressed include Medicaid reimbursement; child find for students enrolled in private schools; evaluation for specific learning disability; Part C to Part B transition; and parental consent.

Hopefully, the letters will be available freely on the web soon as there seems a wide-range of interesting issues covered. If anyone has a link to current public domain web documents, please provide it.