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Opinion: Putting a Price on Special Education Will Promote Equal Access

Right now, access to special education is ensured only for the richest and the poorest school districts.

Last week, NJ Spotlight’s John Mooney interviewed Sen. Teresa Ruiz (D-Essex), acclaimed architect of New Jersey’s new tenure law, about her education agenda for 2013. Ruiz said that “she wants to focus on special education in the coming year, specifically helping families of students with disabilities navigate the system,” adding, “how do we as a state create opportunities for families who really feel they haven’t that access?”

The issue of equal access to high-performing schools for children from all families, regardless of wealth, ZIP code, or parental advocacy, infuses education reform discussions in New Jersey and elsewhere. Locally, it’s the heart of our Abbott rulings, funding formulas, and charter school wars. Nationally, the issue of access informs debates on school choice, teacher and administrator accountability, and measuring student outcomes.

But Sen. Ruiz’s question is rarely asked in the world of special education. Certainly, it’s a more difficult discussion; after all, we’re talking about our most fragile children who require a wide gamut of educational services. (Full disclosure: I have a child with multiple disabilities.)

Yet it’s hard to think of another area of education where the quantity and quality of legally mandated services are so tightly linked to a family’s ability to assemble resources, hire advocates and lawyers, and proactively navigate a complex system.

These are the inequities that Ruiz proposes to address. They exist in spite of mountains of federal and state legislation and case law spawned by the Individuals with Disabilities Education Act (IDEA), which was passed by the U.S. Congress in 1975 on the coattails of civil rights legislation. IDEA requires states to provide all special needs students with a free, appropriate, public education (FAPE).

Case in point: last month a New Jersey Administrative Law Judge ordered Millburn Public Schools District (Essex) to pay over $500,000 in compensatory damages to parents of a child who was placed in an integrated in-district preschool without adequate support services. The parents argued -- with the assistance of medical experts, a professional advocate, and a law firm -- that their daughter, who has a diagnosis of autism, was legally entitled to 30-40 hours a week of a rigorous therapy called Applied Behavior Analysis. Millburn will also continue to pay for the child’s enrollment in a private special education school that has an annual tuition (according to the NJ DOE) of $113,936.

The child of less proactive and resourceful parents would, presumably, settle for placement in a less therapeutic environment. Hence the inequity noted by Sen. Ruiz.

It’s another version of education reform, right? We want equity for all children, whether they live in Millburn or elsewhere, or whether their parents have the wherewithal for contentious fights with school districts. But while our discussion about education reform for typical children is commonly linked to fiscal formulas and cost analyses, we don’t talk about reform in special education in terms of money. Partly that’s a result of IDEA, which forbids districts to consider costs of services and therapies. And to many it might seem insensitive to talk about dollars in the context of children with serious disabilities.

But if we’re going to talk about reforming special education and creating equal access for all families, we have to talk about money.

In New Jersey, according to a 2007 report by the New Jersey School Boards Association, we spend over $3.3 billion per year on special education. (It’s higher now; NJSBA’s calculation is based on 2005 data.) This stems from our inefficient infrastructure -- 600 school districts make it difficult to scale specialized programs -- and its corollary, a thriving industry of private special education schools.

New Jersey, in fact, places more children in private placements than any other state in the country except Washington, D.C. The NJSBA report notes that “out-of-district placements involve 10 percent of New Jersey’s special education population, but make up 40 percent of the total cost of special education,” or $1.3 billion.

Do our private special education schools (represented through a consortium called ASAH) provide better services than in-district placements?

Wealthy parents seem to think so. A study by the Asbury Park Press found that the second-highest users of these schools were upper-middle class suburban districts. The highest users were Abbott districts, where almost all the cost is covered by the state.

Peg Kinsell, a director at the Statewide Parents Advocacy Network (SPAN) of New Jersey, said that “urban districts often lack the teachers and physical infrastructure needed to accommodate students with more serious disabilities. At the same time, parents in the wealthier suburban districts are better able to afford attorneys and push for a private-school placement.”

Ruiz’s quest for equal access to high-quality special education options is most likely targeted at those kids in our largest economic stratum. It’s not the Milburns (rated by the DOE as one of NJ’s wealthiest districts) or the Irvingtons (an Abbott district that, according to its 2012 budget, sends 63 percent of its kids with disabilities to out-of-district placements, mostly private).

It’s the vast middle.

The DOE has cried uncle. In September the Christie Administration’s Education Transformation Task Force acknowledged that oversight of private placements “strains the abilities of the Department’s finance staff.” Monitoring efforts have led to “ill will” from the schools themselves because of suspicion that “they have been given an automatic presumption of dishonesty,” and has made school districts feel “party to a payment system over which they have little control.”

We want FAPE for all our children -- access to a free and appropriate public education. That’s the essence of education reform, be it general education or special education. But how do we accomplish this objective in a state where the presence of many tiny districts precludes effective in-district programs, where parental advocacy and threats of litigation have an undue influence on placement, and where even current costs appear unsustainable? Sen. Ruiz’s intention to reform the way we educate children with disabilities is a logical next move for a legislator lauded for her ability to achieve consensus among disparate stakeholders. But meaningful solutions will require not only examinations of access but also the fiscal implications of reinventing the litigious and inequitable world of New Jersey's special education system.

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