Reimbursement For Religious Portion Of Your Child's Tuition

An issue that comes up in many of our cases is, when a child attends a parochial school or a program with non-secular aspects, may a parent be reimbursed for the non-secular portion of that program.  Historically, this issue has been viewed through a prism of separation of church and state according to the Establishment Clause of the U.S. Constitution.  The argument made by school districts is something like, in very crude form, "It would be wrong for the government to pay the school for the religious portion of their program because that would mean we are promoting that religion and the Constitution prohibits that type of entanglement."  The district uses this reasoning to try to reduce the amount that parents are able to recover.  But is this type of behavior really unconsitutional? 

Recent case law supports the notion that it is not unconstitutional.  That is, parents who were denied an appropriate program and placement by the school district, and chose to enroll their child in an appropriate parochial school, may be entitled to reimbursement for the entire amount including the religious portion.  If you think about it, reimbursing parents for the cost of a parochial program does not necessarily say anything about the government's view of that program.  It is not an endorsement of that school's religion.  It simply means that the school district failed to fulfill its obligations to the child, the parent chose a private school capable of addressing the child's needs, and now the school has to pay for it.  The fact that the private school has a religious component is a side issue because it was the parent's choice to put his/her money there, not the government's. 

This issue had been addressed by courts in the past but, for some reason, parents continued to have difficulty.  Recently, however, some judges seem to be adopting this reasoning which could perhaps be the sign of a new trend. 

Home-Based Instruction And Whether An Automatic Decrease In Hours Of Service Is Appropriate

I wanted to comment on an issue that arose in a case I handled recently.  I think it exemplifies the type of difficulties a parent may sometimes have with a school district when the district is firm in taking a certain position that the parent, instinctively, knows cannot possibly be justified.  In short, the case involved a young child with autism who was in need of an appropriate preschool program.  Initially, the CPSE had convened and been relatively generous with the family - recommending full-time special education instruction along with an intensive diet of related services.  At some point in the case, it became clear that the child's medical needs required home-based instruction and the parent provided supporting medical documentation.  Despite participation from various professionals who had worked with and intimately understood the child's needs, the CPSE essentially cut those services in half.  The district stated that, if it was a home-based program, it was constrained by a maximum number of hours that it simply could not exceed. 

I don't know what legal support they thought they had for this position and I can tell you that they did not provide any such legal support to the parent.  All the professionals involved in this child's life agreed and painstakingly explained that the child required intensive services in order to have any chance of making progress, and the reduced level proposed by the district would not be anywhere near what was required.  To make a long story short, it took the threat of an impartial hearing to compel the school district to provide the amount of hours that the child actually needed.  No impartial hearing was necessary because the matter was resolved once our office intervened and reminded the district that its position was not supported by the law.  This type of situation is not uncommon and parents should be aware of what the law does and does not say so that they can properly deal with school districts in situations of this kind.   

Autism Insurance Reform Case In Michigan

More and more states have been enacting autism insurance legislation reforms to require insurance companies to cover the costs of certain autism-related therapies such as Applied Behavioral Analysis (ABA) therapy.  According to Autism Votes (www.autismvotes.org), an initiative run by Autism Speaks, Michigan may have such a bill pending but has not yet enacted such legislation.  Break to a recent federal court case in Detroit where a judge has allowed a class action to proceed against Blue Cross Blue Shield of Michigan with respect to a claim that ABA therapy was denied by the insurance company on the grounds that it is investigative/experimental despite the substantial scientific research behind it.  I don't know how many people carry Blue Cross Blue Shield, but given the high incidence of autism nationwide, the number of plaintiffs included in this class could be very substantial.  If this case goes forward, I imagine it will involve expert testimony about the science behind the efficacy of ABA therapy, and could be the push Michigan needs to pass the legislation reforms.

2011 Medicaid Rankings

United Cerebral Palsy (UCP), an organization that educates, advocates, and provides support services for individuals with various disabilities, recently released its 2011 Medicaid rankings for the 50 states in the U.S. and the District of Columbia.  The report estimates that Medicaid spending amounted to $37.3 billion in 2009 for the 635,000 individuals with intellectual and developmental disabilities that it served.  New York's position in these rankings may be of particular interest to some people in light of the numerous difficulties that individuals in New York have encountered recently when it comes to finding appropriate housing and services.  Group home closures, longer waiting lists, and budget cuts are partially responsible for NY's recent problems.  A closer look at the UCP's findings may shed light on the root of some of these problems and how we match up to other states. 

These rankings were developed through a process of collecting data that involved assembling statistics from all 50 states and D.C.; reviewing information from numerous governmental non-profit and advocacy organizations; and consulting with Medicaid and disability experts around the country.   A weighted grid was used to assign points to each state based on its performance in a number of categories such as promoting independence, tracking quality and safety, keeping families together, promoting productivity, and reaching those in need.  These categories were further broken down into specific measurable criteria - i.e. subcategories (such as % receiving home and community based services; % living in resident settings with 1-3 people; family support services; etc.  The study is based on data from 2009, the most recent available, and focuses not on all individuals with disabilities but only those with intellectual or developmental disabilities.  It emphasized the importance of including these individuals within the community (not in isolated setttings such as large state institutions) and assigned the highest weight to those criteria that it felt were most closely related to inclusion. 

Overall New York was ranked #17 which by itself doesn't say a ton.  In terms of allocating resources to those in the community, New York was ranked #43.  In terms of supporting individuals in the community and home-like settings, New York ranked #36.  For keeping families together through familiy support, New York ranked high at #10.  In terms of supporting meaningful work, New York ranked at number #36.
New York is one of only 9 states that report more than 2,000 residents living in large public or private institutions.  New York is not on the list of states who have at least 95% of individuals served living in home-like settings (meaning, at home, in their family's home, or in setting with three or fewer residents).  New York is not on the list of states who reduced the number of Americans living in large institutions by 20% or more from 2005 to 2009. 

Other noteworthy points:

- New York is among the top few states when it comes to the number of residents in "congregate care" living situations of 1-3 people and it is also among the top states when it comes to the number of residents in congregate care living situations of 16+ people.  This suggests to me that while it offers a lot of people smaller living arragements, improvement is needed with respect to those in larger homes. 

- New York has a high number of large state facilities.  Only Texas has more.

- New York is in the top 10 when it comes to overall spending for family support services - $56 million - but almost every state spends more money per family.  This has to do with the sheer number of NY families who need family support services - a total of 41,571 families (highest in the country with the exception of California which has roughly 81,000 such families). 

- New York has a waiting list of roughly 4,400 people for residential services.  Only 5 states have longer wait lists. 

- If you look at total expenditures, New York is the highest of all states.  If we're spending so much money, why aren't we seeing better results?

I am not an expert in interpreting these data and my review of these figures is cursory at best.  But I think a thorough understanding of what is going on here is important and that includes understanding why certain states consistently lead or trail.  The study suggests that the size of a state's population or the affluence of its constituents is not the reason.  California is a large state, Vermont is a small state, and both are leaders.  Massachusetts is considered a wealthy state while Arizona is considered less affluent - both are leaders.  According to UCP, Arizona and Vermont have consistently been ranked at #'s 1 and 2 since 2007.  I think it would be useful to understand why this is the case and bring some of those tricks to New York.

ICare4Autism's Annual International Autism Conference in NYC

Yesterday I attended ICare4Autism's Annual International Autism Conference held at the Albert Einstein College of Medicine at Yeshivah University in New York City.  The event, called "Autism: A Global Perspective," centered around a discussion about the latest medical and educational research and the process of finding the causes and treatment for Autism Spectrum Disorders.  The full-day event featured leaders in the field from around the world.  Some sessions focused on the bio-medical side discussing, for instance, research relating to metabolism and genetics issues affecting individuals with autism.  On the educational-behavioral side, sessions included: The Welsh Government's National ASD Strategy; Intervention Targeting Development of Socially Synchronous Engagement in Toddlers with ASD; and The Ecological Assessment of Executive Function in Autism.  The event was informative, enlightening, and, at times, inspiring. 

ICare4Autism is an organization dedicated to tackling the global autism crisis by convening a global community of researchers, educators, and advocates to catalyze breakthrough innovations in autism research, diagnosis, and clinical intervention.  Dr. Joshua Weinstein, the founder and president of ICare4Autism, has been an educator and administrator for more than four decades and is dedicated to helping children with special needs.  Currently Dr. Weinstein is in the process of establishing a global autism center in Jerusalem.  The center seeks to provide a meeting ground for researchers, educators, and advocates involved with this cause and to create opportunities for powerful collaborations for the detection and treatment of autism.  It will also offer a special education school program to meet the needs of Israeli children on the autism spectrum.  The research and education center is slated to open in 2014. 

Asperger's Teenager Shot Dead By Two Cops In Florida

The story of a young man with Asperger's, a form of autism, who was shot dead by cops in Florida last week is as confusing as it is sad. The mother of an 18-year-old man called the police for assistance responding to her son's menacing behavior. Suffering from depression, he was threatening to commit suicide with a knife in his hand. The mother hoped that the police would assist in taking him to a hospital and getting him proper medication. The police who responded went into the home and ended up shooting him with deadly force because of some perceived threat to their safety. Assuming that the cops were unable to approach him because of the knife, aren't they trained in other forms of restraint? And assuming that they absolutely had to shoot, aren't they trained in how to accomplish this without causing fatality? This is a hearbreaking tragedy for the family and a reprehensible and disgraceful intervention by the police department.