Extra-special education at public expense
Nanette Asimov, San Francisco Chronicle Staff Writer
Sunday, February 19, 2006

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At Woodside High in San Mateo County, college-prep classes awaited a 15-year-old boy with learning disabilities and anxiety.

He would blend in with other college-bound students, but also receive daily help from a special education expert. He would get a laptop computer, extra time for tests -- and an advocate to smooth any ripples with teachers. If an anxiety attack came on, he could step out of class.

But Woodside High wasn't what his parents had in mind.

Instead, they enrolled him in a $30,000-a-year prep school in Maine -- then sent the bill to their local public school district.

Similar stories are playing out up and down California as more parents of special education students seek extra-special education at public expense: private day schools, boarding schools, summer camps, aqua therapy, horseback therapy, travel costs, personal aides and more.

Dissatisfied with -- or unwilling to consider -- classes and therapies offered by public schools, growing numbers of parents have learned that demanding more can yield striking benefits, especially when they threaten to sue.

And an expensive legal battle is the last thing district administrators want. So they often give in.

Legal proceedings "are a huge time drain on your administration and your teachers," said Karen Mates, special education director for the Tampalpais Union High School District in Marin County. "You don't want to spend precious dollars on this, so districts will settle a case to avoid it."

The result: Expensive legal judgments and confidential settlements add hundreds of millions of dollars to already soaring special education costs across California, while taxpayers are kept in the dark about how the money is spent.

Meanwhile, California school districts shift more than a billion dollars a year out of their regular school budgets to pay for it all.

"This is not sustainable," said Paul Goldfinger, a California school finance expert. "Special education is a growing portion of budgets in many districts, squeezing out services for other pupils.

Yet to many parents whose children need help, nothing seems more justified than seeking the best.

In the Woodside case, the boy was still a year from finishing middle school when his parents hired a consultant to find them an alternative to Woodside High.

The consultant, Miriam Bodin, suggested several private schools, all outside of California. The parents chose Kents Hill, a bucolic boarding school with one-tenth the enrollment of Woodside High -- and no special education program.

"I didn't care if they had special education," said the boy's mother, who agreed to discuss the case if the family were not identified. "He needed a small classroom on a small campus. This was a very good situation."

He enrolled at Kents Hill in 2000.

Records show the parents had previously gotten their elementary district, Portola Valley, to pay half the tuition of a small private middle school in Vermont for students with learning disabilities.

Now they hoped to get the Sequoia Union High School District, which includes Woodside High, to pay for Kents Hill.

The family hired attorney Kathryn Dobel, an expert in special education cases. She filed papers in 2002 demanding that Sequoia Union pay four years of tuition and the family's costs for travel between Maine and California.

And by the time the boy graduated from high school in 2004, the Woodside case would stand as an icon of the troubled state of special education: parents and educators at odds, inequity in a system meant to equalize, and myriad rules so esoteric they've spawned a new specialty field for lawyers.

"Special ed," as it's widely known, is a hard-won civil right born in the 1970s and designed to correct years of discrimination by giving children with special needs an equal opportunity to learn. When it works as it should, special ed offers a lifeline to kids with a range of disabilities, from speech impairments to brain injuries.

Each child receives an "individualized education plan" specifying the type and amount of extra help they'll get. A team of parents, teachers, therapists -- and, increasingly, lawyers -- meets to update the plan.

The bedrock of the federal law is a "free and appropriate public education" for anyone with disabilities, from birth to age 22.

But the law doesn't define "appropriate" -- an omission that has led to escalating disputes about what public schools must pay for.

Special ed serves nearly 700,000 students in California, and the program appears to be working for most of them. Yet complaints are rising, and fast.

Last year, 3,763 children with disabilities were the subject of formal complaints over educational services, triple what it was a decade ago. Parents open the vast majority of cases, and districts have a built-in financial incentive to settle them because it can cost up to $40,000 to go to a hearing. And then there's the possibility of an expensive judgment against the district.

So districts try not to let a case go that far. Last year, districts participated in 386 full hearings -- just 10 percent of cases opened.

The rest -- 90 percent -- were resolved through secret settlements.

"They really don't want parents out saying, 'Oh, if you just sue this district, you'll get whatever I got,' ' said Elizabeth Estes, an attorney with Miller, Brown, & Dannis, which represents districts.

It's an equation that virtually ensures some children will receive benefits unavailable to those whose parents do not file complaints.

Examples include "dolphin therapy and horseback riding," said Johnny Welton, a special ed coordinator for Contra Costa County. "Things that are beneficial to kids but are not an education-related service."

Welton said such programs cost tens of thousands of dollars and lure parents in with the promise of outstanding results. When parents ask for them, educators are forced to do "risk management."

"Why not pay for a few hours of horseback riding instead of spending $50,000 on attorneys at a hearing?" he said. "In a practical sense, the schools have to pay it."

In recent years, private education at public expense has become a sought-after benefit for children with a wide range of disabilities. The practice of "unilateral placement" -- enrolling a child in a private school, then billing a district for tuition -- is gaining ground, say educators.
In California, private enrollment for students with disabilities has risen nearly five times faster than the overall increase in special ed students, state records show.

Since 1993, the number of students in public special ed programs rose 27 percent, to 681,969 from 539,073. But special ed students placed in private schools at public expense rose nearly five times faster -- 128 percent, to 15,926 from 6,994.

As costs soar, many educators paint a picture of a system financially out of control and increasingly unfair to students whose families can't afford lawyers to win them extra-special education at public expense.

In Sonoma County, for example, a family recently enrolled its child in an out-of-state boarding school, then billed its district not only for tuition, but airfare, car rental, hotel, cell phone calls, meals, tailoring, new clothes, an iBook computer, stamps, tolls, gas and 13 future round-trip visits. Total tab: $67,949.

The district paid "a portion," said a school official who revealed the bill on condition of anonymity.

"Special education is a huge industry now," said Joyce Willett, the Sequoia Union High School District's special ed director. "I don't think the average person realizes what's going on."

Mates, the special education director for the Tampalpais Union High School District, agreed.

"We're looking at a huge crisis heading into our schools," she said. "At a time when education dollars are scarce, my district alone spends hundreds of thousands of dollars each year to pay for private placements for the children of Marin families, where schools often become the enemy. I want to expand our special education programs, but I can't even bring that up."

And as the demands on special education rise, experts say the financial consequences for public schools are staggering. All California students, disabled or not, feel the impact of rising special ed costs.

In 2004, for example, California schools received $4.1 billion from federal, state and local sources for special education.

It wasn't enough. So districts took $1.6 billion more from regular class funds -- double what they took a decade earlier -- according to an analysis by School Services of California, a financial consulting firm.

In all, 28 percent of special ed expenditures in California came from regular education budgets in 2004.

"It's a blank check," said Goldfinger, vice president of School Services. "The system is stacked so that one segment of the population -- disabled children -- has first call on funding, and the others get whatever's left."

If there's one thing parents, lawyers and educators agree on, it's that special education law is about as complicated as it gets.
When President Gerald Ford signed special ed into law in 1975, he did so reluctantly, predicting that the public would wind up paying for "administrative paperwork and not educational programs."

"Holy cow, was he ever right," said Jerry Gross, a retired superintendent in Orange County who helped draft the original law. Gross described the law's myriad requirements as "150 points of potential mistakes" for school districts.

Missing even one step can cause a district to lose its case if a hearing officer finds that a student's education suffered as a result.

"There isn't an attorney who can't find us making a mistake on one of those things," Gross said.

The Woodside case is a good example.

On July 1, 2002, the Woodside boy's attorney filed the papers demanding that the Sequoia district pay for tuition at Kents Hill, family travel, extra classes and psychological testing for the boy, who had just completed his sophomore year at boarding school.

But district administrators balked at paying the boarding school bill; 640 other students with learning disabilities were enrolled in the Sequoia district, and the educators said their public program was good and met all legal standards.

"We have an excellent special education program," said Woodside High Principal Linda Common. "We really help kids."

Nevertheless, in hopes of keeping costs down, the district agreed to try and settle with the family. But talks went nowhere for two years. So in spring 2004, the Woodside case went to a full hearing before state Hearing Officer Michael Arkin, who had to decide whether the Sequoia Union High School District offered the boy an "appropriate education" each school year.

A parade of witnesses took the stand over six days. A speech pathologist, a neuropsychologist, boarding school teachers, and the consultant Bodin all spoke for the student.

On the district's side were teachers and special ed experts, all testifying to the quality of Woodside High's program and the skill of its instructors.

In the end, Arkin ignored it all.

Instead, he looked at whether the district had followed all legal steps and met every deadline.

It had not.

The boy's attorney, Dobel, presented evidence that Sequoia had never prepared a required "transition plan" for the family. That is, district administrators had never filled out the proper form indicating precisely how teachers would ease the boy into bustling Woodside High, either from his private middle school or from Kents Hill.

That misstep meant Sequoia had failed to offer the student a legally appropriate education -- and the family was justified in seeking a school somewhere else.

Not that the family ever requested a transition plan, Arkin noted -- or even visited Woodside before choosing a private school.

"The question arises as to whether Student's parents intended to enroll him at any district school under any circumstances," Arkin wrote in his decision.

Based on that suspicion, Arkin ordered the school district to reimburse half the tuition, not all.

He also denied round-trip airfare, noting that the family had failed to show why their son had to attend school "as far away from his home district as is possible in the continental United States."

By the time Arkin reached his decision, the boy had already graduated and was about to enter college.

In all, the district spent $140,600 -- including legal bills that exceeded the district's share of the Kents Hill tuition, which was $62,600, said Ed La Vigne, who cuts the checks for Sequoia.

The district paid $50,000 for the family's legal bill and $25,000 for its own. From the family's perspective, the battle was justified.

"He was not offered the classes that I thought he needed," the mother said. "If my son didn't get what he needed, my fear was that he would drop out of school.'

She acknowledged he had never been a discipline problem. The hearing records describe him as a "young adult who is likable, friendly, energetic and highly motivated. He is physically active, plays lacrosse and soccer, and enjoys wakeboarding and snowboarding."

"He's a model child," she said. "However, his frustration and anxiety were so high that I could see that this is the type of person who, out of frustration, turns to drugs or something that he shouldn't be doing."

To Sequoia officials, the case exemplifies a system so out of control that a procedural misstep can result in one student attending an exclusive boarding school at public expense while others make do with the standard fare.

"This is an attack on public education," La Vigne said. "Everybody wants the best for every kid. At what point do you say 'enough'?"

Defining 'appropriate'
Federal law says every person with a disability is owed an "appropriate" education, free of charge, from birth to age 22.

It doesn't have to be a "Cadillac" education, according to the U.S. Supreme Court. But it must provide a "basic floor of opportunity."

California schools serve nearly 700,000 students with disabilities, and the number of formal disputes between families and school districts has risen steadily for 15 years. Last year, there were 3,763 requests for dispute resolution.

Most are settled secretly through mediation, where benefits won by families are never disclosed. But some escalate to legal hearings.

Details of these cases are posted on the Internet, providing a rare glimpse into the battles over special education services that go on behind closed doors every day. Family names are not revealed, and financial figures are generally incomplete because they do not include attorneys' fees or other costs associated with the case.

Below are short summaries of three cases, including financial figures acquired by The Chronicle through the Public Records Act. The full case histories can be found at eit.otan.dni.us/speced/seho/seho_search/sehoSearch.cfm. (The case number and year are required.)

San Rafael Elementary District 2003 (Case No. 400)

At issue: If a child makes some academic and behavioral progress at school but exhibits inappropriate and dangerous behavior at home, is the school responsible for addressing the out-of-school problem? And should the district, therefore, pay year-round residential tuition, cross-country transportation, food and lodging costs for six visits by parents and siblings, and interest on the school loan?

What happened: A 10-year-old boy with Tourette's syndrome, diagnosed as emotionally disturbed with aggressive and potentially dangerous behaviors, attended a Bay Area private school for students with similar problems. The district paid the tuition. Although the boy made overall progress at school, he was unable to apply what he learned outside of the classroom. At home, the boy's behavior was "quite frightening," testified Dr. Herbert Schreier, chief of psychiatry at Children's Hospital of Oakland. In 2003, his family enrolled the boy in an out-of-state boarding school and asked the district to pay. Current 12-month tuition: $98,185.

What the parents said: Their son's unique needs could be appropriately addressed only at a 24-hour residential school, such as Devereux in Connecticut, which specializes in helping students with similar disabilities. Because the child did not apply what he learned at private day school and therapeutic programs to the real world, the public school district should pay for more extensive support. In a letter dated Aug. 13, 2002, the mother wrote that although her son did not hit, bite or kick at school, at home such problems were "severe and have not let up at all."

What district administrators said: The family's placement of their son at Devereux was made for family reasons, not educational reasons. "It's understandable that parents want the best for their children, but our society is not willing to provide a Cadillac education for every child - just an education," said attorney Damara Moore of Ruiz & Sperow in Emeryville, who represents the district. "In this situation, the student was violent at home, so they wanted him removed. And they wanted someone to pay for that."

What the hearing officer ruled: The district was responsible for the student's behavior outside of class and that a 24-hour residential school was appropriate. The district had to pay for the family's tuition and cross-country travel to attend two required meetings at the school, but not for other travel or interest payments.

Bottom line: The San Rafael Elementary District has so far paid $356,052, including the family's legal expenses. Elements of the case are being appealed in federal court.

San Francisco Unified School District 2002 (Case No. 192)

At issue: Should a kindergarten-age girl with an autism-like condition receive a personal aide, play therapy, psychological therapy and a private education at public expense, and should those services continue after the local public school district has developed a similar program that administrators say is tailored to meet her needs?

What happened: District administrators told the child's family to choose from among several schools with classes appropriate for their daughter, who had a central nervous system disorder causing autism-like symptoms, physical problems and difficulty relating to peers. After looking at a few schools, the family was told that some were full or were for preschool students only. The family then enrolled the child in private school and hired private therapists, including a personal aide. District administrators told them a public program was available, but the family declined it unless an aide was also provided. The district eventually agreed to offer an aide for four months, then re-evaluate the need. The family declined.

What the parents said: The district made insufficient efforts to assess all the educational needs of their daughter, who was 7 during the hearing, and to provide her with appropriate services. The district should compensate for those errors by paying for private tuition and school supplies, as well as reimbursing the cost of a personal aide, play therapy, private testing and services in neuropsychology, occupational therapy, speech and language, psychological help, vision, physical therapy and transportation.

What the district said: A one-to-one personal aide was not necessary for the child to benefit from her education, and could even impede progress toward greater independence. An appropriate public program has always been available, although not necessarily at the family's preferred school. Small-group speech, occupational and physical therapies were also educationally appropriate for her; individual services were not necessary.

What the hearing officer ruled: The district made two significant errors: Educators were four months late in offering the child her individual education plan, and they should have directed her to attend a specific program at a specific school, instead of requiring the parents to participate in the district's school-selection program. As a result of these mistakes, and because the personal aide and play therapy help the child, the district must pay her private tuition and reimburse the family for all other services requested, except the neuro8psychological and vision.

Bottom line: The district has so far paid $313,985, including the family's legal expenses. District administrators say they have since developed a program specifically designed for this child. The family has so far declined to enroll their daughter in the program, nor must they do so. Once the hearing officer rules that a private placement is appropriate, a district must continue to pay for it until a family chooses to make a change or until the district takes the family back to a new hearing and wins.

Ocean View Elementary District in Huntington Beach (Orange County) 2001 (Case No. 2087)

At issue: Is a 13-year-old boy with autism entitled to receive horseback riding and aquatic therapies at public expense, and should the school district or the parents decide in what setting to test the student?

What happened: The boy's parents and district officials agreed that he should attend a public middle school so that he could interact with nondisabled peers. But they could not agree on what his academic goals should be, where he should be tested, and whether specialty therapies were necessary for him to make educational progress.

What the parents said: Horseback and swimming pool therapies were essential to meet their son's unique needs. His educational progress should be determined using the "ecological" method, in which tests are conducted in several settings - including a regular education classroom, home and community. Among those testifying for the student was Judith Heumann, who served as assistant secretary for the Office of Special Education and Rehabilitative Services under President Bill Clinton.

What the district said: Horseback and swimming pool therapies were not necessary to meet the student's educational needs. An appropriate program included speech and language services; occupational therapy; physical education adapted for students with special needs; parent training; transportation; and a test of progress every three years, only some of which would be conducted in settings outside of the school's therapy room.

What the hearing officer ruled: The district's educational program and testing method were appropriate for the student, and horseback and aquatic therapies were not necessary.

Bottom line: The district paid $239,044 to defend its position. The expenditures included $93,150 for a 23-day hearing, $108,019 for a federal appeal; $36,875 for "administrative costs"; and $1,000 to hire substitutes for eight days while the boy's teachers testified or prepared for hearing.

Sources: Special Education Hearing Office and San Rafael Elementary, San Francisco Unified and Ocean View Elementary school districts.

CHART (1):
E-mail Nanette Asimov at nasimov@sfchronicle.com.

A growing class - special education

While the number of public school students in California increased by 20 percent between 1993 and
2004, the number of special education students grew by 27 percent, according to the California Special Education Management Information System. Meanwhile, the number of special education students in private school at public expense has grown by 128 percent - from 6,994 students in 1993 to 15,926 in 2004.

Disabilities of California's 681,969 special education students

Learning disabled*: 48%
Speech/language impairment: 26%
Mental retardation: 7%
Unspecified health impairment: 5%
Emotionally disturbed: 4%
Autistic: 4%
Deaf or hard of hearing: 2%
Orthopedic impairment: 2%
Visual impairment: 1%
Multiple disability: 1%
Brain injury: 0.3%
Deaf-Blind: 0.03%

* The National Institutes of Health define learning disabilities as
disorders that affect the ability to understand or use spoken or written
language, do mathematical calculations, coordinate movements, or direct
attention.
Source: California Department of Education

CHART (2):

Official sources of funding

In billions of dollars with a
breakdown of the origin of funds
Local State Federal
2000 9% 75% 16%
2001 9% 73% 19%
2002 9% 71% 21%
2003 9% 67% 24%
2004 8% 66% 26%
2005 8% 65% 27%
2005: $4.3 billion

Source: California Department of Education
CHART (3):

Money diverted by school districts in 2003-04

Percent of school district's general fund shifted to pay for special
education
San Francisco 10%
($34 million)
Mount Diablo 9%
($23 million)
Oakland 4%
($15 million)
Berkeley 11%
($10 million)
Tamalpais Union High 8%
($2.8 million)
San Rafael City Schools 6.6%
($1.8 million)

Source: School Services of California and individual school districts
CHART (4):

The number of disputes and the use of attorneys is rising

Number of disputes
1990 548
1995 1,255
2000 2,197
2005 3,763

Source: Special Education Hearing Office
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