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In many ways, special education has achieved great success during the last thirty years. All public schools now provide access to educational programs for students with disabilities (SWD). Indeed, SWD are entitled to a free appropriate public education (FAPE) that is reasonably calculated to provide them with a meaningful educational benefit. Today, many SWD are educated in inclusive settings with access to the regular education curriculum. More than six million SWD across the nation receive access to the programs and the education they need to meet higher curriculum standards and lead fuller, more productive lives. In Massachusetts, 16.9 percent of all students receive services under the Individuals with Disabilities Education Improvement Act (IDEA) and Massachusetts General Laws Chapter 71B.1
Moreover, the 2002 No Child Left Behind Act (NCLB) promotes broad changes in education policy for all students, including SWD. It requires that all children, including SWDs, have research-based educational curricula with demonstrated effectiveness, especially in the areas of reading and math.
However, upon closer examination, because of the requirements and cost of these special education programs, other areas of education are adversely affected. It is fair and just for us now to seek a better balance to serve all our school children. It is prudent to seek new pathways to find this balance if schools are to be educationally effective, fiscally responsible, and responsive to all in their charge. Let us ask: Can the special educational system be reformed and streamlined without diminishing appropriate services for SWDs?
While the rest of the nation educates slightly more than 13 percent of its students through the IDEA, the states of Massachusetts and Rhode Island share the dubious distinction of placing the highest percentage (16.9 percent in Massachusetts) of their students in that category. While most of these students need support, the cost to the state and school districts of providing special services is seriously affecting our ability to invest in other educational areas and to promote education reform for all students.
Back in 2001, the Massachusetts Association of School Superintendents (MASS) issued a report, “The Impact of Special Education Reform: A Case Study of Massachusetts.” Among its findings were that “special education has consumed a disproportionate share of new funds allocated to education” since state funding began to climb in the early 1990s.2 It found, for example, that in 29 percent of the school districts, the increased cost of special education exceeded all new state aid between 1993 and 1999, and that in 56 percent of the school districts in the state, the increased cost of special education swallowed more than 50 percent of all new state aid in that period. Most school reform dollars allocated for all students have, instead, been funneled to meet the rising costs of special education.3 This occurs because the cost of special education is not limited by budgetary considerations or constraints. Funding for special education comes off the top in our public schools.
Other numbers tell the same story. Between 1990 and 2004, the cost of special education in Massachusetts as a percentage of total district expenditures rose from 17.2 to 27.6 percent. While spending for regular education rose by 82.9 percent, the cost of special education rose by 154.4 percent.4 State spending for special education is approaching two billion dollars annually.
In 2006, MASS updated its 2001 report on special education. In spite of legislative attempts to assist public schools with additional funding, “districts were still experiencing cost increases that seriously compromised their regular education program and the goals of education reform.”5
In 1975, President Gerald R. Ford predicted some of these consequences in his signing statement for the nation’s first special education law. Although he agreed with the goal of educating all children with disabilities, he also foresaw that the law as written had these faults:
- It was too cumbersome, entailing too much bureaucracy and paperwork;
- It was too costly, claiming unrealistic and excessive authorization levels for funding;
- It promised more than it could deliver, falsely raising expectations.6
Experience has confirmed Ford’s foresight. Although the law has been rewritten and reauthorized by Congress many times since 1975, becoming in its latest version the Individuals with Disabilities Education Improvement Act of 2004 (IDEA), sufficient reform has yet to occur. In 2002, the President’s Commission on Excellence in Special Education cited numerous remaining challenges, including the need to streamline regulation: “The current system often places process above results, and bureaucratic compliance above student achievement, excellence, and outcomes. The system is driven by complex regulations, excessive paperwork, and ever-increasing administrative demands at all levels…. The culture of compliance has often developed from the pressures of litigation.”7 Although the report included many recommendations, most of them have yet to be implemented. IDEA has done little to address this burden of paperwork: the 2006 IDEA Regulations themselves run (excluding the extensive comments and analysis section) more than 90 single-spaced pages. The Massachusetts regulations add another 35 pages, whose contents sometimes conflict with those of the IDEA and create confusion for educators and parents.
One of the key causes of this avalanche of paperwork and the high cost of special education is the adversarial framework within which special education takes place. While Congress had initially tried to create a more cooperative approach, where schools and parents would work together to educate SWDs, a litigious atmosphere has taken over, feeding off the mistrust it promotes.
Consider, for example, the Supreme Court’s recent decision in Schaffer v. Weast.8 The Court decided that in cases concerned with special education, the party bringing the suit, which is usually the parents, should carry the burden of proof. It added that the parents, however, are not powerless since they are entitled to an independent evaluation:
IDEA thus ensures parental access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition. [Emphasis added]
The Supreme Court, in other words, assumes that those who should work together, parents and educators, with the common aim of providing services that the child needs, are inevitably adversaries.
Even worse than litigation is the fear of litigation, because it infects everything. The IDEA is the fourth most litigated federal statute. In Massachusetts, the Bureau of Special Education Appeals (BSEA)provides mediations and due process hearings for special education (and Section 504) disputes. It fields almost 600 hearing requests per year, of which some 94 percent do not result in decisions. By experience, we know that many “settle.”9
A virtual “mansion industry” of evaluators, advocates, attorneys, and others has grown to navigate the laws’ complexities. Among the unintended consequences of the IDEA is that these professionals appear to have a stake in litigation or the fear of litigation, even as it breeds mistrust between those who, in the end, have to find a way to work together for the sake of the child.
Because the only entity that is legally required to provide for SWDs is the public school system, insurance companies and the other state social agencies are able to shirk their responsibilities for these children. Yes, “interagency agreements” are developed. However, they work around the fact that SWDs have no legal entitlements at other agencies or entities. Thus, those entities can deny all types of services to children on budgetary grounds, even when those services are within their mandate and are not educational. Due to the special education entitlement, public schools are left with the burden of escalating needs and costs.
In 2005, SPEDCO sponsored its first annual Special Education Day in Massachusetts. Educators, state officials, parent representatives, and other leaders in education met to celebrate the anniversary of the IDEA, honor the progress of special education in Massachusetts, and develop reform proposals.10 The participants were asked what most needed changing in regards to special education. The most common responses were the adversarial climate, the litigious atmosphere, the burdensome procedures, excessive paperwork, and the lack of trust, respect, and dignity for school personnel.
Taking our cue from this, SPEDCO formulated four proposals. The first three require no legislative action, just the support of the public and Department of Education (DOE), and modest funding.11 The fourth will require legislation. SPEDCO seeks to have the first three reforms piloted without delay, even as we wait for the legislature to work on the fourth proposal:
- The “Procedure Lite” Option12
- The Free Appropriate Public Education (FAPE) Expert model
- A Collaborative Training Model
- Conformity Legislation Model
1. The “Procedure Lite” Option
- To expedite the delivery of special education services to SWDs while minimizing procedural and paperwork requirements.
- To restore trust between parents and school systems.
The Procedure Lite option allows parents, with school consent, to opt out of the special education procedural/regulatory requirements. It establishes basic structures and processes (including an information packet, to be developed) within which parents and schools can work cooperatively while reducing the number of regulatory steps. Both parties waive legal terminology, attorneys’ fees, disputes about additional or fewer services, compensatory services, and protracted procedures. Both parties have the right to opt back into the IDEA and Massachusetts procedures anytime by informing the other party.
Initial discussion with the DOE has confirmed that this option would not require legislation, and it appears interested in pursuing this avenue with us.
- Services for students to start as soon as agreed upon without protracted procedural steps.
- Improved communications between schools and families, focused on the student’s program, needs, and progress, not on compliance issues.
- Quicker resolution of problems and conflicts.
- More direct instructional time.
- Less frustration and more trust between schools and families.
- Cost savings.
The cost savings from Procedure Lite could be enormous. We estimate that special education teachers may spend 25 percent of their time doing non-instructional work such as documenting compliance or organizing and attending meetings. The President’s Commission on Excellence in Special Education echoed this concern in 2002: “Educators spend more time on process compliance than on improving educational performance of children with disabilities.”13 If the Procedure Lite option could reduce that time by 40 percent, to 15 percent of their working hours, then students would be getting 10 percent more instruction per teacher. If we assume an average teacher salary of $56,000 (from the DOE website) and estimate $10,000 for benefits (for a total of $66,000 per teacher), then this Option would save $6,600 per teacher. Assuming a low number of special education teachers in Massachusetts—let’s say 3500 for the sake of discussion—the Procedures Lite Option might divert more than 20 million dollars back to teaching (3500 x $6600= $23,100,000).
We recommend that this option be piloted in selected school districts to study its effectiveness and implications for broader use.
2. The FAPE Expert Model
- To provide effective, impartial, and student-centered dispute resolution focused on delivering a FAPE to special needs students.
- To reduce the need for litigation procedures, and provide prompt, appropriate delivery of educational services.
- To provide expertise that targets the student rather than future litigation.
The FAPE expert model ends the damaging “battle of the experts.” The parents and public schools would jointly choose an independent expert, paid for by the Bureau of Special Educations Appeals (BSEA) or by the local school district, to assist the BSEA hearing officer in making a decision. The FAPE Expert plays a role much like the guardian ad litem in other legal contexts.
The BSEA has shown interest in this approach during preliminary discussions.
- This model would shift the focus of family, schools, and BSEA to the child, away from positioning for the strongest case in litigation.
- Resolution would be reached within 30 days from the time the parents and school jointly choose a FAPE expert.
- A decrease in the number and intensity of disputes.
- The restoration of trust between schools and parents.
The cost savings from the FAPE expert model could be substantial. There is no hard data concerning what the present adversarial system costs, but we will try to make a rough estimate of the cost of an average BSEA hearing for schools. (We do not estimate the cost of maintaining the BSEA). There is no data to tell us how many of the approximately 600 hearing requests begin down the path toward a hearing or how far down that path they proceed. Such data would be useful to have. We do know that 34 decisions and 17 rulings were written in FY 2006.14
- Starting again with the estimated average teacher salary and benefits of $66,000, and dividing it into a per diem estimate, a teacher costs $360 a day ($66,000 divided by 182). If we assume that the average three-day hearing involves seven teachers, administrators, service providers (occupational therapists, speech-language therapists, etc.), then the school personnel cost of that hearing is at least $7500 (3 x 7 x $360). Taking into account preparation time, travel and meal reimbursements, discovery, and the possibility that the hearing will go longer, a good round total estimate would be $13,000.
- Since attorneys’ fees for the school district may run between $10,000 and $70,000 or higher, we will assume $40,000.
- Fees for each expert may run between $1000 and $5000, depending on the nature of the case. If we allow for the possibility that more than one expert might be needed, a fair estimate would be $5000.
- Administrative costs, mailing, and discovery may amount to $5000.
These rough estimates add up to approximately $60,000 for an average hearing. If a district loses the hearing, it will also have to pay the parents’ attorney’s fees, perhaps another $40,000, and whatever additional services the BSEA orders. Thus, even with only 51 decisions and rulings in a year, several million dollars are spent that could be used for better educational purposes.
In comparison, we estimate the cost for the FAPE expert to run between $2000 and $5000, depending on the child’s needs.15
We recommend that this model be piloted in selected BSEA cases to study its effectiveness and implications for broader use.
3. A Collaborative Training Model
- To shift the training paradigm away from compliance toward student outcomes.16
- To redirect training resources towards initiatives that would build cooperative relationships between parents, schools, and state agencies and provide the tools to improve educational outcomes.
In current practice, school districts spend scarce money and effort in defensive training to assure compliance with procedural requirements. Special education paperwork burdens are onerous and often cited as the reason professionals leave the field. The shift in training will refocus educators and parents on improving teaching and learning strategies and on building cooperative working relationships.
Preliminary discussions with the DOE and the Federation for Children with Special Needs (FCSN) have indicated their interest in making training more constructive. No new legislation would be required, just the shifting of money already in the system.
- DOE and U.S. Department of Education training funds will target training for educators and parents on successful education and relationship-building practices to enhance trust and communication.
- Fewer disputes and less spending on litigation.
- More funds and attention to improving student outcomes.
4. Conformity Legislation Model
- To streamline legal requirements so that educators can focus on educational outcomes.
- To maintain the rights of the SWDs to a FAPE.
In addition to the federal law, the IDEA, Massachusetts has its own law (Chapter 71B) and its own set of regulations governing special education. Some Massachusetts requirements just create more toil and paperwork. Others create rights that exceed a FAPE and/or increase disputes and litigation because they confuse parents and educators and may create conflicts with federal requirements. The reality is that the IDEA is sufficient to provide the access to education to which SWDs are entitled because it provides them with the right to a FAPE.
In 2005, California passed conformity legislation that eliminated most requirements for special education that went beyond the IDEA. The effort streamlined special education, making it less confusing, more efficient, and more effective.17 While many other states already conform to the IDEA, Massachusetts continues to provide costly and confusing extras.
- Fewer conflicts and disputes because of divergences between state and federal regulation.
- The state will have the energy to tackle other needs, such as enforcing interagency agreements.
- Educators and parents will have the energy to focus on improving outcomes for all students.
This proposal, of course, will require state legislation.
The landscape has changed greatly for special education students in the last thirty years. So much has been accomplished in terms of programs, access, funding, and fairness. However, without timely and radical reform, these gains, achieved with great effort and difficulty, are at risk. Moreover, education for all children in the Commonwealth may be compromised.
Contact the Author:Special Education Day Committee ~ SPEDCO PO Box 600221 Newtonville MA 02460 617-542-6789 (at law office); 617-510-0248 Miriam Kurtzig Freedman, M.A., J.D. of counsel Stoneman, Chandler & Miller LLP Carla Jentz Executive Director Massachusetts Administrators for Special Education (ASE) Marilyn E. Bisbicos Ed. D. Consultant and Former Pupil-Personnel Director Cambridge and Arlington Public Schools Edward Orenstein Executive Director Concord Area Collaborative (CASE)
- Bureau of Special Education Appeals website: http://www.doe.mass.edu/bsea
- Federation for Children with Special Needs website: http://www.fcsn.org
- Massachusetts Association of School Superintendents website: http://www.massupt.org
- Massachusetts Department of Education website: http://www.doe.mass.edu
- Miriam Kurtzig Freedman’s website: http://www.SchoolLawPro.com
- President’s Commission on Excellence in Special Education website: http://www.ed.gov/inits/commissionsboards/whspecialeducation/ reports/index.html
- Special Education Day Committee’s website: http://www.specialeducationday.com
- U.S. Department of Education, Office of Special Education Programs and Office of Special Education and Rehabilitative Services website: http://www.ed.gov/about/offices/list/osers/osep/new.html
- This is the number of students who have Individualized Education Plans, as required by the IDEA and by Mass. Gen. Laws. Ch. 71B. Massachusetts Department of Education data.
- Sheldon H. Berman, Perry Davis, Ann Koufman-Frederick, and David Urion, The Impact of Special Education on Education Reform, Task Force on Special Education, (Boston, MA: Massachusetts Association of School Superintendents, 2001), http:// mass.supt.org/policy/fileDisplay. cfm.?file=327.
- Ibid. This diversion of funds is due to the fact that special education is still the only legal individualized entitlement under state and federal laws for children with educational, social, medical, emotional, behavioral, and other needs in our schools. Expenses for special education come off the top—followed by other programming needs. The Massachusetts situation is not unique. In “Extra-Special Education at Public Expense,” (San Francisco Chronicle, February 19, 2006, p. 1), Nanette Asimov quoted Paul Goldfinger, a California school finance expert: “This is not sustainable….Special education is a growing portion of budgets in many districts, squeezing out services for other pupils.”
- In 2000, the United States spent approximately $80 billion on IDEA services at the local, state, and federal levels. See Chester E. Finn, Jr., Andrew J. Rotherham, and Charles R. Hokanson, Jr., eds., Rethinking Special Education for a New Century, Thomas B. Fordham Foundation and the Progressive Policy Institute (May 2001), 32.
- Sheldon Berman, “Special Education Finance Policy,” MASS Special Needs Task Force, Massachusetts Association of School Superintendents, http://www. massupt.org/policy/fileDisplay. cfm?file=329#1.
- The signing statement can be found at http://www.ford.utexas. edu/library/speeches/750707. htm.
- “A New Era: Revitalizing Special Education for Children and Their Families,” The President’s Commission on Excellence in Special Education, 2002, 7, http://www.ed.gov/inits/commissionsboards/ whspecialeducation/ reports/index.html.
- 126 S. Ct. 528, 44 IDELR 150 (2005).
- This issue is not confined to Massachusetts. Too often the fear and threat of litigation is the reality of how special education “works” today. For example, Asimov, in “Extra-Special Education at the Public Expense” (San Francisco Chronicle, February 19, 2006, p. 1), quotes a special education director stating that legal proceedings “are a huge time drain on your administration and your teachers. You don’t want to spend precious dollars on this, so districts will settle a case to avoid it.” Another stated, “Special education is a huge industry now…I don’t think the average person realizes what’s going on.”
- The second annual Special Education in 2006 was co-sponsored by SPEDCO, the Massachusetts Administrators for Special Education (ASE), and the Massachusetts Association of Approved Private Schools (MAAPS). Education Week’s January 3, 2007 online edition mentioned Special Education Day in its article about the death of President Gerald R. Ford. Recently, both the Lexington Colonial Times (February-March 2007) and Wellesley magazines cited it as an avenue of hope for reform.
- Note that the estimates of costs cited in the first two proposals are very rough and speculative. Unfortunately, we do not have data about how teachers spend their time, the cost of proceeding to a BSEA hearing at all stages, the costs of “settling” disputes, etc. We urge research to provide this data. A chapter in Rethinking Special Education for a New Century raises the same concern in its discussion of the annual costs for providing special education: “The wide range of cost estimates itself hints at an insufficient level of accountability in these programs, while also provoking the important question of what society is receiving as a return on its substantial investment in special education.” p. 53.
- We thank Marcia Mittnacht, State Director of Special Education of the DOE, for the term “Procedures Lite.” The use of this term does not imply an endorsement of any opinions stated herein by Ms. Mittnacht.
- “A New Era: Revitalizing Special Education for Children and Their Families,” The President’s Commission on Excellence in Special Education, 2002, 11, http://www.ed.gov/inits/commissionboards/ whyspecialeducation/ reports/index.html.
- See “Special Education Appeals—FY 2006 Data Summary,” http://www.doe. mass.edu/bsea/fy06datasum. html?printscreen=yes&.
- See also a BSEA decision involving the Sudbury Public Schools, 44 IDELR 291 (SEA MA 2005), where the hearing officer awarded parents more than $100,00 in retroactive reimbursement in addition to a private placement and attorney fees (left unspecified in the decision). According to the article in the San Francisco Chronicle of February 19, 2006 cited above, one district spent $140,600, of that $62,600 for its portion of the out-of-state tuition, $25,000 for its own legal bills, and another $50,000 for the attorneys of the parents.
- In testimony before the President’s Commission on Excellence in Special Education, cited in its report “A New Era: Revitalizing Special Education for Children and Their Families,” Kim Goodrich Ratcliffe, PhD, Director of Special Education in Columbia, Missouri, testified that her district spends the whole week preceding the opening of the schools training special educators on procedural mandates: “The tail is wagging the dog.”
- Personal communication with Howard Fulfrost, Esq., of California (formerly at Lozano Smith; now at Fagan Friedman & Fulfrost LLP). Attorney Fulfrost played a key role in California’s movement to conformity legislation.