Despite comprising a significant percentage of every school district’s budget, special education costs often are not well understood. Even to those aware of special education mandates, their implementation can appear, in Winston Churchill’s words, to be a mystery wrapped in an enigma. Additionally, federal laws protecting student confidentiality preclude a discussion of specific situations, so the public has little insight into the genesis of these costs.
Congress first mandated the provision of special education and related services over 35 years ago, the impetus being to move disabled children – particularly those deemed intellectually disabled – from segregated settings into the educational mainstream and to provide them with the same opportunity as their non-disabled peers to progress from grade to grade. The law’s passage reflected society’s desire to have disabled children included in regular classroom settings, and to this end, what is now known as the Individuals with Disabilities Education Improvement Act (IDEA) requires school districts to offer a free appropriate public education in the least restrictive setting to students deemed eligible for special education and related services.
Over at least the past decade, however, there has been a role reversal as districts recommend placements within the public schools, but many parents seek out-of-district day or residential placements. These placements are not inexpensive: one Boston-area residential facility for autistic children costs more than $400,000 a year. Similarly, a residential school for visually impaired children near Boston charges approximately $300,000. While these placements are at the high end, it is not unusual for ten-month residential programs to charge between $70,000 to $150,000. While day programs are typically less expensive, when the cost of transportation is added, a residential placement can sometimes be more cost-effective.
The State of Connecticut utilizes a formula to determine responsibility for the cost of these placements under which school districts pay up to 4.5 times the average per pupil expenditure. Thus, if the per pupil expenditure is $12,000, the school board would be responsible for paying the first $54,000 of any placement. Although any amount over that – or the “excess costs” – is supposed to be covered by the State, its reimbursement rate hovers around 70%. Under this scenario, then, the district would pay the first $54,000 of a $100,000 placement, plus 30% of the remaining $46,000, or $13,800, for a total of $67,800.
Why, then, would a district agree to pay for such a placement if it felt the in-district program was appropriate? The IDEA entitles parents to administrative “due process” hearings before a State Department of Education hearing officer should disputes arise. Typically, more than 300 hearing requests are filed every year in Connecticut, the vast majority of which involve requests for out-of-district placements, yet fewer than twenty go to a full hearing. The reasons are many.
Contrary to almost every other legal forum in the United States, where the party bringing the case bears the burden of proof, Connecticut places the evidentiary burden on school districts in every hearing. Additionally, while they vary in length, hearings can and have lasted more than twenty days. Thus, the district’s pupil personnel director spends the equivalent of four weeks sitting in a hearing, substitutes have to cover classrooms for district staff who are called to testify, and the district can expend tens of thousands of dollars on legal fees. Finally, federal law entitles parents who prevail, even partially, to obtain payment of all or a portion of their legal fees and costs, which, depending upon the length of the hearing and the extent to which the parents prevailed, can exceed $100,000. Thus, at the close of a hearing, a school district can wind up paying not only for an out-of-district placement, and its own attorney’s fees, but also the parents’ fees and costs.
Until the State reallocates the burden of proof, streamlines proceedings and otherwise creates confidence in the adjudicatory process, districts will too often be forced to balance their desire for inclusion against the very real financial risks posed by the current hearing system.
Michael P. McKeon, an attorney with Pullman & Comley, LLC represents boards of education, municipalities and private-sector employers across Connecticut and can be reached at firstname.lastname@example.org. Reprinted with permission from the December 13th issue of the Fairfield County Business Journal.