Fee Shifting in Special Education

I’ve had several cases in the last few years that have made apparent to me an unseemly practice that is evidently being used by some school districts: fee shifting. Fee shifting occurs in special education when a school district passes the costs of students’ needs onto other agencies by unscrupulous means.

There are two types of fee shifting that I have repeatedly encountered over the years. One takes the form of the School to Prison Pipeline in which the behaviors of students with disabilities are criminalized and prosecuted rather than addressed through positive behavioral interventions via the Individualized Education Program (“IEP”) process. The other takes the form of the misidentification of students, usually those with Autistic Spectrum Disorders (“ASDs”) and/or Attention-Deficit Hyperactivity Disorders (“ADHDs”), as children with serious mental health disorders who are then referred to their local County mental health agencies for treatment of disorders they don’t actually have and neglect of their actual conditions.

One of the eligibility categories for special education is “Emotional Disturbance” (“ED”), which is meant to address the needs of students with mental and emotional health disorders. While emotional problems will surely occur among students with other disabilities whose needs go unmet, this is a response to circumstance, not an innate disorder unto itself. In both of the fee shifting scenarios I’ve repeatedly seen over the years, the emotional challenges my law enforcement-involved and/or misidentified students have are largely the consequences of not getting support for their actual handicapping conditions.

That isn’t to say that none of my students are legitimately ED, but many of them didn’t start out that way. Post-traumatic stress disorder (“PTSD”) can arise from traumatic experiences in and out of school, but still can qualify a student as ED. What breaks my heart are the kids with other conditions who acquire PTSD from repeated neglect and/or abuse in response to their original conditions, particularly at school.

One school district in which I have been supporting students has a history of misidentifying little boys with ASDs as having mysterious mental health disorders that their local County mental health agency can’t quite seem to identify according to diagnostic criteria. This same mental health agency openly admits that it doesn’t diagnose or treat ASDs.

This is made further evident by their assessment reports because they clearly have no idea what they are looking at and render non-specific diagnoses, like, “Unspecified emotional disorder of childhood and adolescence.” This is basically a catch-all term for “We have no idea what is going on with this child,” when the ASD is plainly obvious to anyone who knows autism. In one of my cases, the student had already received a DSM-5 autism diagnosis and the County mental health agency still missed it.

For our children and youth that end up in our local juvenile hall, the moment they are incarcerated, they usually immediately cease to be students of their districts of residence, which is based on where their parents live, because California law causes students’ local education agencies to change whenever they are placed outside of their local communities by the courts. For example, in Ventura County, California, it is the Ventura County Office of Education (“VCOE”) that operates the schools in juvenile hall. So, the moment a student is locked up, that student ceases to be a student of the district where that student’s parents live and becomes a student of VCOE.

That creates huge complications for students who were in the process of being assessed when they became incarcerated or for whom referral for assessment was made while they were incarcerated but they get released before the 60-day assessment timeline has run. Switching local education agencies while mid-assessment is a bureaucratic nightmare. The procedures may have to be started all over again.

We hope and pray as advocates when working with criminal justice-involved students that we can get them through the 60-day assessment timeline before they “reoffend” and get locked back up again, once again disrupting the timeline and potentially starting it over with VCOE. Unless we’ve involved an attorney and litigation is pending, this can quickly turn into a vicious loop.

Most of the local school districts will partner with VCOE to finish any assessments that have been started in one location or the other because it is usually anticipated that the student will return home in a matter of weeks or months, at which point, the student will live within the attendance area of the school district, again, which will resume responsibility. Nonetheless, making this work takes Herculean effort and with as many kids as there are passing through the system, the time necessary to provide Herculean effort to each of them isn’t really available. It most often happens when people like me and my colleagues show up.

The motivation for fee shifting is obviously money. Special education is grossly underfunded, but like all the rest of public education, it’s also poorly managed. High paid administrators strip resources out of the classroom and then give themselves raises to reward themselves for how smart they’ve been about saving their school districts’ money. Every teacher who buys supplies for their classrooms out of their own pockets each school year knows exactly what I’m talking about.

What money the public schools get should be mostly spent on students. School district administration exists to support the instruction, not usurp its funding, but some statistics reflect that there is usually one administrative position for each teaching position, and I have yet to meet a teacher who has a personal secretary, so that’s obviously not how administrative resources are being used.

Fee shifting schemes very often target children from low-income households that can’t afford to hire attorneys to hold their local schools accountable. There are not enough attorneys who represent low-income parents of students with special needs to meet the demand, even though they can recover their fees from the offending school districts upon prevailing in hearing or as a condition of settlement. Those who take on these cases have overflowing caseloads that they can barely manage.

Because of this, it is often children from single-parent households, families of color, immigrant families, and families with parents who also have disabilities that are targeted by these fee-shifting schemes. This means that children with disabilities who were already disadvantaged by their actual disabilities and socio-economic situations are then further abused by a system in which their needs get misidentified in order to shove them off onto other agencies. The interventions they receive, if any, once they get shifted to the wrong agency are inappropriate to their needs, and nothing in that breaks the cycle of poverty.

Basically, fee shifting happens in special education because public education agency administrators get away with it far more often than they get caught, and they avoid getting caught most frequently by targeting children from families who they think won’t fight back. When parents do try to advocate for their children to get appropriate interventions in these situations, they are met with resistance from public education agency administrators and their lawyers. Public education may be underfunded, but a school district is far better financially equipped to wage war against a low-income parent than a low-income parent is usually equipped to fight back.

The consequences of this dynamic disproportionately fall on children of color, who are already marginalized by institutionalized biases that incline them to more likely live in poverty. But, affluent children of color get targeted in affluent school districts simply because of their color, which is made worse if they also have handicapping conditions, particularly those that affect behavior, or have been educationally neglected for so long that they have developed psychological problems around school that eventually lead to problem behaviors.

All behavior is communication, so what is a kid who has behavioral challenges at school trying to communicate? Is it that the curriculum is too demanding? The instruction doesn’t make sense? There are other things going on in that kid’s life that are taking a higher priority than school, such as homelessness and/or hunger? Is the child the victim of abuse? Is it something else? What is really going on?

There are a million reasons why a child may behave inappropriately at school, and disordered thought brought on by trauma, impairment, and/or duress is frequently involved, which is paired with the fact that we’re talking about children who are not mature enough to reason like adults. Without proper assessment, how can we know what the appropriate response is to a student’s challenges?

Many people also don’t understand that the costs to taxpayers caused by fee shifting are greater than the costs of doing the job right in the first place. For the price of one student’s tuition and board for a 4-year Harvard undergraduate education, you can incarcerate one youth in California for one year. Even if you had to put such a student into residential psychiatric treatment for a year as a matter of special education, that’s a quarter to one-third the cost of incarceration for the same amount of time and with a much higher likelihood of success.

It’s not just about how much money is spent; it’s also about how many benefits the money buys for students, families, and taxpayers. Getting more benefits for less taxpayer dollars seems like the most reasonable outcome to pursue, but many public agencies have this “not out of my budget” mentality that takes performing their mandates right out of the equation and makes it about how little money actually gets spent.

Those students with ASDs and/or ADHDs who are initially misidentified as having mental health disorders will very likely develop mental health disorders and the behaviors that go with them. This is a consequence of being surrounded in their programs by people with legitimate mental health disorders who model inappropriate behaviors and treatment programs that are inappropriate to their actual ASD- or ADHD-related needs. Poor social role models in addition to a lack of ASD-specific instruction on social pragmatics and behavior, paired with therapeutic techniques that are ineffective in the treatment of ASDs, compound to ruin lives, tear families apart, and undermine the cohesiveness of communities. Similar programming deficits improperly impact students with ADHDs.

It’s the students in juvenile hall and Department of Juvenile Justice (“DJJ”) facilities who are often in most need of mental health services as a matter of special education, but are least likely to get anything sufficient to their needs. The lack of adult mental health treatment facilities resulting in our jails and prisons taking the overflow is already a known problem in this country. What is less commonly known is how early the process of shifting mental health costs onto the criminal justice system actually starts with diverting kids out of special education services, very often those meant to address mental health issues and/or behaviors, and into the School to Prison Pipeline.

I certainly don’t endorse the idea that fee shifting is behind every special education violation. Fee shifting is behind some special education violations. Violations occur for a plethora of reasons; fee shifting is just one of many ways things can go wrong. But, parents, advocates, and educators need to be aware of practices that can create fee shifting, even if by accident.

In truth, a great many school-site professionals have no idea what their employers’ legal obligations are to students with disabilities and just do what they’re told in exchange for a paycheck and benefits. They care about their students, but they are often largely in the dark about what they can actually do to meet their students’ needs and they are unaware of the resources they are supposed to be making available to these students per the law.

They can’t incur the costs of intervention if they don’t provide intervention, so if they don’t know about interventions, they won’t make them available, thereby avoiding the costs of intervention. It’s often those who hold higher positions within the public education agency who are aware of the agency’s obligations but decide not to promote certain things among their staffs in the name of cost control that undermines the learning of children with disabilities.

It is in this climate that a School to Prison Pipeline develops. School site staff are unfamiliar with the actual rules of special education, particularly “child find.” Alternative methods of intervention will often be tried without success under the premise that having to refer a kid to special education is tantamount to failure and all other options must first be exhausted.

It’s actually the other way around. You at least rule out disability by conducting comprehensive assessment on the basis of suspected disability. Assessment will otherwise identify that there is a disability and why it’s causing so many problems. If it’s not a disability, assessment will prove that; competent assessment will explain what is actually going on, which will help parents and educators decide together what can nonetheless be done even if the student doesn’t qualify for special education.

The bottom line is to figure out what is really going on so the parents and educators can find the right solutions, whether they are special education or something else. You don’t make kids languish in a hokey, half-baked rip-off of Response to Intervention (“RtI”) for years until they psychologically break and then prosecute them for truancy when their school anxiety becomes so great that the thought of going to school makes them sick every morning.

Every year, we get new kids on our caseload who are hugging porcelain or sitting on it for extended periods every morning because the school-related anxiety rips their digestive systems apart. And, in almost every case, truancy proceedings are involved for untreated symptoms that are causing health-related absences. Panic attacks are treated as criminal acts.

Students and parents can be fined and placed on probation for truancy; public education agencies want their average daily attendance (“ADA”) dollars and they don’t get them if kids aren’t there. They use their local District Attorney’s (“DA’s”) office to prosecute kids with disability-related absences and their parents, which ushers kids with disabilities into the School to Prison Pipeline and away from quality education.

Some school site administrators will refer students to truancy proceedings without even asking themselves if there may be a disability involved that warrants immediate special education assessment, instead. They either can’t grasp or don’t care about the harm they are doing. They are eliminating costs and headaches from their own agencies, and that’s evidently as far as their analyses go.

It is very important that parents and advocates in these situations choose their actions carefully to make sure that any assessments that are needed to figure out what is really going on and what to do about it are actually done. If they are done poorly, skewed to support the argument the public education agency has been asserting all along, or are missing vital components, the parents will likely have grounds to disagree and request outside assessments, Independent Educational Evaluations (“IEEs”), at public expense, which is to say at the cost of the public education agency.

Basically, the district has to pay for outside second opinions if the parents disagree with the district’s assessments for any reason, which the law does not require the parents to explain. The only way that the public education agency can decline requests for IEEs is to send Prior Written Notice (“PWN”) declining the request (basically a letter to the parents explaining why the request is denied), filing for due process, and proving to a judge that the education agency’s assessments are good such that second opinions aren’t necessary.

Sometimes it’s not second opinions so much as getting additional testing done that the education agency failed to perform when it should have. Those are still IEEs. The point is that, in any situation in which you suspect fee shifting may be happening, assessments – good assessments – will tell you what is really going on with enough detail that a group of reasonably intelligent adults with intact ethics and morals can figure out something that will make sure a kid learns, regardless of what type of obstacles may be in the way.

It is my hope that, by shining light on public education agency administration “fee shifting,” the public becomes informed and more diligent about holding public servants accountable to spending taxpayer dollars on services that actually benefit the public in conformity with the law. This is something to be taken up town-by-town, county-by-county, and state-by-state by voters who expect public agency accountability to the taxpaying public and further expect agencies to legitimately serve the purposes for which they were created and funded. It’s also something important for parents and advocates to understand when pursuing appropriate outcomes for individual students.

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