Budget Concerns Do Not Supersede IDEA Legal Obligations

Given many states and localities have experienced a significant reduction in tax revenue over the past few months as a result of the COVID-19 pandemic, and many schools are heavily reliant on this revenue for their operating budgets, we can expect less (sometimes significantly less) money for schools during the 2020-2021 school year.

We offer these cautionary tips districts should consider before considering cutting or reducing services for students eligible for special education and related services. 

A quick primer: The program for students eligible for special education and related services is based on their identified needs. A historically losing argument is making educational decisions based on what is available, not based on the student’s identified needs. This process is referred to as “shoehorning.” 

Shoehorning — A term sometimes used to refer to the procedural error of selecting the student’s placement before her program has been determined. Before determining placement, the IEP team must first gain a comprehensive picture of the student and develop her program (e.g., goals, services, and supports).

Additionally, there are parents making demands for services and there are school districts that push back against parents of children with disabilities. The districts argue, even if a child needs certain services, they are not required to provide certain services that are too costly, because it would break the budget. With COVID-19 one can expect this argument to be made much, much more frequently. Districts state parents should just be appreciative, not complain, that given the financial considerations that they are getting something. There are (and will be) arguments made that some of the students eligible for special education and related services will not become tax-paying citizens in the future, and therefore we should not spend so much money on them now. Additionally, there will be arguments made that some of the services are cost-prohibitive because they will only benefit a very few number of students. 

Districts-please do not use these arguments. The law, and its subsequent regulations are very clear. The acceptance of federal funding comes with the explicit requirement that students eligible for special education and related services are to receive an appropriate education.

Even with COVID-19, it has been reiterated by U.S. Secretary of Education Betsy DeVos when she stated in April 2020, “[w]hile the Department has provided extensive flexibility to help schools transition, there is no reason for Congress to waive any provision designed to keep students learning.”

For clarity, states are not obligated to accept federal funding for education. As the U.S. Department of Education states: “Any state that does not want to abide by a federal program’s requirements can simply choose not to accept the federal funds associated with that program. While most states choose to accept and use federal program funds, in the past, a few states have forgone funds for various reasons.” 

States, local school districts, either need to accept the money and provide services, or not accept the money (but still provide a FAPE based on Section 504 requirements-for more information on this see Yell, Mitchell & Rogers, David & Rogers, Elisabeth. (1998). The Legal History of Special Education: What a Long, Strange Trip It’s Been!. Remedial and Special Education – REM SPEC EDUC. 19. 219-228. 10.1177/074193259801900405).

As a condition of receiving federal funding, schools must provide everyone a free appropriate public education in the least restrictive setting. 

Are there options for school districts? The word to pay attention to is appropriate. School districts are obligated to provide an appropriate education-not the best education. The Supreme Court has been very clear on the two chances it has had to rule on whether students are to receive an appropriate education. As long as the student is making progress in light of their current circumstances is what school districts need to ensure for all eligible students. School districts cannot allow budgetary constraints to supersede their legal obligation to provide every student with a free appropriate public education, which is a condition of federal funding for special education. 

If public schools do not provide eligible students an appropriate education, it is reasonable to expect an increase in tuition reimbursement cases. Pay me know or pay me later-often much more money in the end.

Steps districts should immediately take:

  1. Make sure the IEPs are legally compliant. Go through every IEP and ensure all of the needs a student has have corresponding goals and methods to address the needs.
  2. Make sure teachers are trained in, and regularly use, progress monitoring procedures that will give clear understanding of whether the student is making progress.
  3. If the student is not making progress-do something. Change the seating, the instruction, the level of intervention, the curriculum. Change something and continue to document the students’ progress (or lack thereof). Do not just sit there and let the students not make progress.
  4. Provide more behavioral assistance. Districts often provide instructional coaches-they should  provide behavioral coaches. Behavior problems is why teachers leave the profession. It is causes referrals to special education. Provide supports and training to help with behaviors and make sure general education teachers implement behavioral supports with fidelity.
  5. Make sure you have the correct technology to help with student’s needs. There should also be training for the students and the teachers.
  6. Make sure principals are trained in supporting and supervising special education staff. They are in the buildings. Use them.
  7. Watch for red flags. Any concern expressed by a parent, teacher, or other about a student’s academics or behavior. It may not cause the student to receive special education, or even a special education evaluation, but at least the student is now on the radar screen.

School districts receiving federal funding conditioned on compliance with the IDEA have obligations to each individual student. Districts also could pay for a student’s appropriate education at a private school, ideally in collaboration and with agreement by the parents. Or they can provide an appropriate education in the public-school context. What they cannot do is offer only an inappropriate program and then defend it on the basis of budgetary constraints.

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