In 2005, the U.S. Supreme Court ruled that parents, not school districts, are required to prove that an Individualized Education Plan is unsatisfactory to a child’s needs.

This federal ruling does not overturn state statutes where they exist, however, and Connecticut is currently one of just five states to place the burden of proof on the school district during an appeals process of a special education determination. In 2005, twice as many states and the District of Columbia had similar regulations.

“A bill to change that is submitted every year, but it hardly ever makes it out of committee,” said John Flanders, the executive director of the Connecticut Parent Advocacy Center. “Right now, the school needs to prove that they have provided an adequate education. If a bill were to pass, that burden would then fall on the parent.”

Such repeal proposals are driven by special education costs that are a substantial and unpredictable part of a school districts budget.

In southeastern Connecticut, special education costs vary widely from 16 percent of a district budget – in the case of Chester – to just 5 percent for Stonington schools, according to data from the Connecticut State Department of Education 2018 End of Year Reports.

That percentage can change dramatically from year to year depending on what students have enrolled in local schools.

In Lyme-Old Lyme Schools, for example, the amount spent on special education services dropped from $900,466 in 2018-19 to $880,267 this school year, according to superintendent Ian Neviaser, a change that could have been caused by the education costs of a single student.

A legal burden for districts

In the Connecticut, “in all cases … the public agency has the burden of proving the appropriateness of the child’s program or placement, or of the program or placement proposed by the public agency,” according to state law.

Bob Rader , executive director for the Connecticut Association of Boards of Education (CABE) , said that the law scares school districts into settling out of concern for the cost of a hearing.

“It is believed that this policy has increased the local costs, but there is no control, so you can’t prove that,” said Patrice McCarthy, deputy director and general counsel (CABE). “Without this regulation,” McCarthy said, “districts would stick to their recommendation as to what would be most effective.”

Parent advocates say this reasoning does not hold water, however.

“Schools are legally required to provide an appropriate education, so why should they not be able to prove that. The planning and placement team is supposed to have made sure the program is appropriate before implementing,” Flanders said. “More than 90 percent of families can’t hire an attorney, changing the burden of proof really puts the mom and dad behind the eight ball in these kind of situations.”

The idea that school districts are “absolutely terrified of these fire breathing moms who bring huge amounts of legal paperwork and facts and bury our poor school systems under unbearable costs and legal voodoo… is complete baloney,” said Flanders.

Out of 78,000 children receiving special education services statewide, just 250 appeals are filed each year.

“Due process is just not that big a part of the cost of special education,” Flanders said.

A new proposal to regularize costs

A state task force was assembled this year to consider the Connecticut School Finance Project’s proposal of a “Special Education Predictable Cost Cooperative” — a form of insurance for school districts.

Under the proposal, each district would pay a premium to the state and the state would then reimburse all special education costs, much as a private insurance company reimburses clients.

“Although costs are variable by district, they are stable statewide,” said Michael Morton, the communications director for the project. “This system would allow costs to stay stable on the local level and the state would just redistribute funds each year.”

The task force identified several holes in the plan which make it unlikely to be brought up for serious discussion this session. Both Flanders and McCarthy served on the task force.

“This model would create another level of bureaucracy without any real benefit,” McCarthy said. And how that new level of bureaucracy would be funded remains unclear.

“The cost of the administration to run the program would be significant. It’s an insurance company that is going to get 78,000 claims each year,” said Flanders.

Flanders also suggested that the proposal could lead to higher overall costs by incentivizing individual districts to approve requests. If the state covers everything, Flanders asked, wouldn’t districts be more likely to say yes to all requests?

Flanders was the only member of the task force not to vote in favor of the report because it included a recommendation to consider removing the state regulation on the burden of proof.

“I was the only parent representative on the panel, and everyone else refused to remove the clause,” Flanders said. “The vote was to refer this report to the legislature. I’m unwilling to refer a document with that particular piece of baloney in it.”

Something everyone agrees on

Rather than pushing this proposal in the state legislature, parent, child, and school district advocates are pushing instead for the state to fund a higher percentage of the State Department of Education excess cost program.

That program is meant to refund school districts for all special education expenditures that exceed 4.5 times the average per-pupil cost in a district. Currently the program refunds schools just 70 percent of the total promised amount.

“One of the priorities this session will be to remove the cap on the special education excess cost grant,” McCarthy said. “It’s supposed to be a safety net for districts, but instead it is a net with a lot of giant holes in it.”


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