Schools Failing Children With Disabilities

In 1975, long before the current epidemic of developmental disorders began, Congress passed the Individuals with Disabilities Education Act (IDEA), which requires public schools to identify children with disabilities and provide them with a need specific free education in the least restrictive environment.

Over the past decade, the costs of complying with the IDEA have skyrocketed and local school districts all over the country are scrambling to find money to meet the needs of disabled children in overflowing classrooms.

The nation's schools spent $78 billion to educate special education students in 1999-2000, which amounts to 21.4% of total spending for elementary and secondary education, according to the US Department of Education, Twenty-fourth Annual Report to Congress, What Are We Spending on Special Education Services (June 2004).

More than 6.4 million children, or 13.4%, of the public school enrollment receive special education services through IDEA, according to the US Department of Education, Digest of Education Statistics 2003, Table 54 (December 2004).

The Fiscal Year 2006 Budget Summary, released by the Department of Education on February 7, 2005, shows payment for overall spending on education breaks down by percentage to Federal 8.2%, State 45.7%, Local 37.2%, and all other at 9%.

The Budget Summary, contains $11.1 billion for the Grants to States program, which is authorized under the IDEA, and makes formula grants that help States pay the additional costs of special education and related services to children with disabilities aged 3 through 21 years. This level of funding would provide an estimated average of $1,599 per student for about 6.9 million children.

That said, for years, federal funding to the states has proven to be wholly inadequate. According to the Department of Education's Twenty-fourth Annual Report to Congress on the Implementation of the IDEA (2002), the vast majority of spending is paid for by state and local governments. In 1999-2000, for example, school districts received only $3.7 billion in federal assistance, or about $605 per student. This amounts to only 10.2% of the added costs imposed by IDEA.

The most expensive special education belongs to the disorder of autism, an incapacitating, lifelong disorder that affects a child's ability to interact with the outside world. As parents cope with the diagnosis, the major challenge they face is finding the right services for their children. Beginning at age 3, public schools are required to provide a free and appropriate education to autistic children.

What is the definition of appropriate? Under the IDEA, the "free appropriate public education" must include "special education and related services" tailored to meet the unique needs of a particular child."

Parents of course want the best for their children, while schools often provide adequate services only. It's a constant source of conflict in schools all over the country today.

The IDEA also contains a "mainstreaming" component, which requires states to establish "procedures to assure that, to the maximum extent appropriate, handicapped children ... are educated with children who are not handicapped."

To comply with IDEA, school districts must establish an Individualized Education Program (IEP) for each student. An IEP is a written statement that is developed through a collaborative process by a team including teachers, school administrators, and the child's parents.

If parents believe that an IEP is inadequate, they may challenge it by requesting a "due process hearing." If parents are unhappy with the outcome of that proceeding, they may bring a civil action.

Courts are empowered under the IDEA "to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act."

Prior to filing a lawsuit, parents have a right to challenge the educational services a school may or may not be providing a child in a due process hearing. Hearings are growing in number. For instance, in Pennsylvania, the Central Bucks school district had 19 of due process hearings in 2004 and North Penn district had 13.

Nationwide, in 2000, there were more than 3250 hearings, according to Project FORUM, National Association of State Directors of Special Education, Due Process Hearings: 2001 Update (April 2002).

On average, schools spend between $8,160 and $12,200 for each due process hearing or mediation according to Jay G Chambers, et al, What Are We Spending on Procedural Safeguards in Special Education, 1999-2000 (May 2003).

The average cost of a hearing in some states is higher such as California where the cost is $18,600, according to the GAO Report No 030-897, Special Education - Numbers of Formal Disputes (2003). A hearing officer alone on average costs $9,000.

If parents are unhappy with the outcome of the due process proceeding, they may bring a civil action. In a 2004, Utah case that involved the provision of a preschool program for an autistic child, the parents declined a public school's recommendation to place their autistic child in a public school because the child was doing well in a private preschool with the additional use of a supplementary aide and an at-home Applied Behavioral Analysis (ABA) program, which the public school did not offer.

The child's ABA program was provided by five different therapists and was structured as follows: (1) ten hours per week at the mainstream preschool with an assistant as her aide; (2) ten to twenty hours per week with an assistant as part of her at-home, one-on-one ABA program; (3) an average of five to ten more hours on at-home, one-on-one ABA instruction with her other therapists; (4) in the summer approximately seven to ten hours per week on peer play with a tutor who observed her interactions and redirected her behavior when needed; (5) starting in the next summer, two and one-half to three and one-half hours per week in a play group with tutors who observed and redirected her conduct.

The parents sought reimbursement from the school district for the costs of the ABA program and supplementary aide and after exhausting the administrative procedures without success, the parents filed a lawsuit asking for reimbursement.

Evidence in the case showed the child's supplementary aide and ABA program had cost between $50,000 to $63,800 per year, while the school's entire preschool budget was only $360,000 to $400,000 per year.

The breakdown of the costs of the ABA program included: (1) forty hours per week of ABA services; (2) seven and one-half hours per week of preparation time for ABA therapists to plan for individual sessions; (3) two and one-half hours per week for a team meeting with the child's five ABA therapists; (4) one day per month for an ABA consultant to train the five therapists; (5) materials for ABA program; (6) one hour of speech therapy per week; and (7) occupational therapy as needed.

The court ruled in favor of the parents and found they were entitled to reimbursement for the reasonable costs of the ABA program and the aide's services, and were also eligible for reasonable attorneys' fees and litigation costs.

In a 2001 lawsuit involving a Toledo Ohio day care center, the symptoms of the child's autism that were relevant to the difficulties that arose with the child in day care included repetitive activities, movements such as flapping his hands, pounding his chest, pounding his head, and running into walls.

If noises or other stimuli overloaded the child, he would cry, run in circles, or run to hide from the noise. The child also exhibited violent and destructive behavior when he became extremely frustrated, including hitting himself, other children, and a counselor, and biting other children, cursing, throwing objects, chasing children, and urinating on the floor.

The day care facility did not have staff specifically trained to handle the needs of an autistic child and after 20 months, the center sent the parents a letter stating the child would be terminated due to their inability to handle the child.

In the end, the court ruled in favor of the parents and ordered the day care center to reinstate the child in the program and send staff members to specialized training to teach them how to handle the autistic child.

In a 2005, State of Virginia case that involved a preschool program, the autistic child was easily frustrated, which often led to disruptive behaviors such as crying, biting, slapping, kicking, and sweeping items off a table.

Like many autistic children, the child in this case would engage in self-stimulatory behavior, referred to as stimming, which consists of repetitive patterns of behavior such as flapping of the hands, rocking back and forth, or repeating a word or a sound.

The child engaged in several different forms of stimming, including humming and wiggling long slender objects between his fingers while staring at them out of the corner of his eye. Without intervention, the child would engage in constant stimming all day long.

After the child was diagnosed with autism, his parents enrolled him in the private Faison School right before his third birthday because it used the ABA approach in teaching autistic children.

The Faison School has four masters-level teachers for each student and an assistant is assigned to each student and is always with that student. The child and his assistant work in a private classroom much of the day and move into group sessions for certain activities.

The child in this case attended Faison six hours a day, five days a week, thus receiving 30 hours of one-on-one instruction each week. His parents and older sister all received training in ABA methods, and used the ABA methods with the child at home.

After attending Faison for 8 months, the child could stay on task independently for about five minutes and could quietly wait unattended for approximately 30 seconds.

The parent's primary concern about sending the child to the public preschool was that the class size would prevent the child from receiving the amount of one-on-one instruction required to keep him focused and on task, since the school did not guarantee the child a full-time aide. The parents therefore rejected the plan, choosing instead to leave the child at the Faison School.

The parents then sought reimbursement for the cost of the Faison School and after a due process hearing, the hearing officer found that the child has a very limited ability to work independently and that he "aggressively engages" in self-stimulating activity when not attended to in a one-on-one situation and when he is engaged in self-stimulatory behavior, he is "so engaged in the activity that his ability to learn is precluded."

The officer determined that given the number of other children in the pubic school, the requirement to work independently, the natural distractions at the school and the child's lack of communication skills, social behavior, inability to stay on task for more than a few minutes, his fear of other children and his severe propensity to self stimulate and his inability to learn when self stimulating, the child's ability to access the curriculum offered at the school would be so impaired as to deny him educational benefit.

The hearing officer also found that the plan did not provide the child with a free appropriate education because it did not include extended school year services.

The hearing officer concluded that the Faison School was an appropriate placement for the child and that the School Board was therefore obligated to pay for the cost of his placement at the school.

The school board filed an appeal in Federal court and won the next round and the parents appealed that ruling. The high court determined that the hearing officer's rulings were correct and stated, "Because we conclude that the district court erred by failing to give
deference to the decision of the state hearing officer, we reverse the district court's order and we remand for reconsideration consistent with the principles set forth in this opinion."

The school board appealed the decision in the US Court for the Eastern District of Virginia, which ruled in favor of the board. The parents appealed that decision and the 4th Circuit Court of Appeals' ruled in favor of the child and remanded the case back to the district court with instructions for further proceedings.

When schools fail to comply with the IDEA, subsequent litigation costs can be massive, as evidenced by an editorial in the May 4, 2005, Chattanoogan, from angry Tennessee tax payer, John T Dixion titled, "Outraged Over School Spending In Autism Case."

"As a county homeowner and taxpayer," he wrote, "I'm outraged at the discovery that the school system has spent $2,280,000 plus in attorney fees and court costs, etc. on a lawsuit to fight with a family rather than provide what the student needs to finish his education."

"According to County Commissioner," Mr Dixon said, "this whole matter could have been settled (and the family compensated for out of pocket expenses) to the tune of $150,000 (a mere 6.5% of what has been spent to date)."

"The school system doesn't need more money, it needs people in charge who know how to be good stewards of what they are already getting," he concluded.

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