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News & Views - Jun, 1995 Issue #34 

by: Tom Croke, IECA
Latrobe, Pennsylvania

(This is the third in a series by the author regarding third party funding sources for private residential placement)

In the initial article in this series, we referred to public school financing as the third most common form of obtaining financial help for special purpose schools. Skipping over borrowing (the second most common method) for now, we will look closely at public school funding. This topic will require two or maybe three articles. We now set forth the some general principles. The next article will look at some specific situations and how to handle them. That theme may continue into one more article, especially if there are questions directed to me. The basic principle here is that each local school district is responsible for the education of its residents up to the age of 22 (we said 21 in error in the initial article), or until high school graduation, not withstanding any handicap. This means that any attempt to access this kind of funding must be tied to a need to educate a student. 

The basis of this requirement is federal law (P.L. 94?142, as amended) which most states have further amplified by state law. States may pass laws and promulgate regulations which increase the rights of parents and students and increase demands on school districts. They may define procedures to be followed. They may add steps in evaluation requirements. They may set standards for service providers and insist upon use of local or in state resources ?? so long as these rights of states are not used to block delivery of services. States may not interfere with the minimum federal requirements. 

Parents often over estimate the obligation of school districts under this law. At the same time, very few public school districts acknowledge the level of responsibility they have for providing special education support, and will almost always resist supporting expensive special services, even when the federal courts would clearly take the stand that they are required by law. They do, however, within limits to be explained, have the right to ensure that the facility to be paid for services is properly qualified to provide services, and they have the right to participation in the planning, before having an obligation to fund. At the same time, they have no obligation to provide services for a student who can be educated in the regular classroom without special services, even if there are great therapeutic needs. Federal law dictates that decisions about special education services be made in a team process which always includes parents (unless the parents decide not not to attend) leading to the creation of a document called an Individual Education Plan (IEP). Normally, this document must be in place before any services are provided. Placing a child in a special purpose school and sending the bill to the local public school is not generally a productive approach. 

Federal law, reinforced by state law in most states, requires that services be provided in the "least restrictive" environment. Simply put, this means that a school district may not require that a student be put in an environment more distant and/or different from his/her home environment and/or the conventional classroom than is truly necessitated by the documented disability. For example, a school may not relocate all paraplegic students to special boarding schools, when all they need to do is create a barrier free environment in a regular school in the student's home town. This principle is often used to prevent funding of a residential placement. Before a residential special purpose school can be funded by the public school, there must be evidence that the student cannot be educated in any therapeutic day school placement. On the other hand, if there is no way to keep a student and the surrounding community safe and healthy overnight, this would generally be evidence that a 24 hour environment is needed. 

School districts often abuse this provision to avoid liability for more expensive services until a less expensive plan has been tried and failed. Up to a point the law can justify their position. However, any plan proposed by a school under the "least restrictive principle" must (as the law has been interpreted by the courts) have a reasonable chance of success. The purpose of the "least restrictive" principle is to protect students, not school budgets. Creating a predictable succession of failures prior to offering a plan with hope of success -- or failing to intervene aggressively when delay can be shown to be a cause of harm to a student -- has been the basis for federal court judgment against public school authorities, accompanied by severe reprimands of school authorities for abusing this provision of the law. 

Federal law, and the laws of most states, exempt school districts from the need to consider bad behavior to be a handicap. Most students who present major behavioral challenges can be shown to be "Seriously Emotionally Disturbed" (as the jargon of the law in most states puts it), but that is not an automatic consequence of being a behavior problem. There is some room for interpretation as to the difference between a badly behaved student who is severely emotionally disturbed and one who is not. Usually, a student who has a specific psychiatric diagnosis other than conduct disorder is eligible for services if unable to make progress in regular education. 

In the opinion of this author the law as it stands is severely flawed, for two reasons: The demands of the law create huge incentives for the person administering it to take shortcuts at the expense of the children. If the legal mandates here were ever carried out in detail, as prescribed by law, just the paperwork alone, before any services would be provided, would create astronomical costs. This leads to a situation where the real attention goes to the students who are either the most obnoxious to the public school or who have the best advocacy. The second reason is, that it amounts to an entitlement program accountable to court review. When mental health or social services systems should take responsibility but do not, the public school becomes the funding source of last resort. Many educators resent fiercely needing to take up the slack in areas which are logically not their responsibility. 

So before going farther, let's review the ground rules. Parents do not have an automatic right to select a special purpose school and require the local school system to pay for it (although some states do grant parents the right to an "educational component" at public expense adjunct to any therapeutic placement). At best, the parents need to be in a position to prove that less drastic action would prevent the child from being educated. However, schools which tell parents, "Sorry we can't meet your need because we lack that program," are subject to suit in federal court. It is their absolute responsibility to meet the needs of any child whose education is found to be impaired by reason of handicap, and to purchase an appropriate program if they lack an appropriate one. Students who are eligible need not be enrolled in public school to receive help. Homeschoolers and students in public and parochial schools are fully eligible through the public school districts where they reside, if they otherwise meet criteria. If a school does participate, they have the right to participate in planning and selection of facilities used. The court may cause them to forfeit that right if they get caught manipulating students out of what they need. 

Finally, getting help to which you are entitled from an intransigent school authority is a complicated and emotionally draining process. You need to weigh carefully what you have to gain and lose before moving in that arena. You need professional advice. 

In the next article(s), we will address in greater depth issues of crossing state lines, negotiating a settlement, advocacy, working with the team to form a plan, behavior as an indicator of special needs, and delaying graduation to address benefits.

Copyright 1995, Woodbury Reports, Inc. (This article may be reproduced without prior approval if the copyright notice and proper publication and author attribution accompanies the copy.)

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