Testimony of Attorney Andrew a Feinstein to Committee on Education

Chairman Slossberg, Chairman Boucher, Chairman Fleischmann, Ranking Member Lavielle and members of the Committee, I am pleased to be able to present my opinion to this committee on various bills subject to hearing today before this Committee. I am an attorney in private practice in Mystic, whose entire practice revolves around representing children with disabilities. We are in the process of putting together a state-wide special education advocacy group, called Special Education Advocacy for Kids (SEAK of Connecticut). Soon, you will be hearing from SEAK, not me.

Before I comment on some of the specific bills on today’s agenda, I need to comment more generally on special education funding. Currently, the only state funding of special education directly comes from the excess cost grant, which provides some partial relief for expenditures devoted to an individual student that exceed 4 1/2 times the average per pupil cost in the district. This system has been fraught with abuse and the State Department of Education has failed to audit district submissions. Moreover, it creates perverse incentives and provides little incentive for districts to reduce the cost of very expensive placements. I took the average amount each district received in excess cost reimbursements for 2014, 2015, and 2016 and divided it by the average daily attendance. The results were interesting. Pomfret, Salem, Darien, Winchester and Preston, along with Regions #1, #9, and #10 led the list, each receiving more than two and half times the state average. Among the larger towns, Hartford, Bridgeport, New Haven and Waterbury all received far less than the state average. Indeed, Waterbury received less than one-fifth of the state average. Of the 10 towns with more than 10,000 students, West Hartford and Fairfield received the most. Put another way, Darien, with 4,800 students, received more than twice as much in total excess cost reimbursement than New Haven, with 19,000 students. West Hartford received more than three times as much as East Hartford. Clearly, there is something very wrong with the excess cost reimbursement system.

The Governor has proposed ending the excess cost grant program and using the money, as well as some additional money, to provide support to local districts for special education. On top of that, he has proposed a new distribution formula, cutting out certain wealthy towns completely, to provide greater support to poorer cities. Remarkably, while certain cities will receive substantially more in special education funding, under the Governor’s proposal there is no requirement that those districts spend the money on special education, or even on education. So, while the Governor is claiming to enhance special education funding, he is, in reality, doing no such thing.

On top of all that comes the proposal for a cooperative insurance company to reimburse districts for their special education costs, to the extent those costs are not covered by federal Part B funds or specific state grants. While the proponents of this proposal deny it, it appears to be a backdoor effort to move to state control over special education. That is a very bad idea, for a host of reasons. The biggest one is that the IDEA is based on individualized programming, based on the individual special needs of the child. Once there is a state bureaucracy funding special education, that individualization is sure to go by the boards.

If I leave you with one point, this is it: special education is the best economic investment the state can make. Kids with disabilities grown up to be adults with disabilities. If they are not taught the skills, attitude, and supports to live and work independently, they will forever be supported by the state. If we can move an individual with a severe disability from needing to be in an institution to being able to live in a group home, we save a hundred thousand dollars each year for the remaining fifty years of his or her life. If we can move a child with a learning disability from failure and a life on the margin to a fully functioning member of society, we save a fortune in increased productivity, to say nothing of reduced incarceration and drug treatment costs, in some cases. This is not going to work in every case, but, if special education works even in a small percentage of cases, the program more than pays for itself. Put another way, for every dollar an aggressive special education director saves by providing inadequate services, hundreds of dollars may be added to the state budget in the future.

It is within this context that this Committee has been a leader in fighting for the rights of children with disabilities. Certainly, protecting those rights is a civil rights issue as well. And, it is an issue of who we are as a society in protecting the most vulnerable among us.

We should all be appalled when special education is singled out as an unfunded mandate. The Connecticut General Statutes require local municipalities to maintain and pay for the cost of local police departments, C.G.S. § 7-277, fire departments, C.G.S. § 7-301, town clerks, C.G.S. § 7-16a, public schools, C.G.S. § 10-15, and myriad other functions. The state provides some money to municipalities, but the overwhelming majority of the costs are imposed on the local town’s taxpayers. These are all unfunded mandates to the same extent that requiring school staff to be trained in restraint and seclusion or in dyslexia and requiring the school to provide an alternative educational opportunity to expelled students are unfunded mandates. Calling special education services an unfunded mandate, while pretending the local police force is not, should be recognized for what it is: a statement of the speaker’s personal judgment that special education is not as important as good land records or well-maintained fire hydrants.

That brings me to S.B. 1015 and H.B. 7276, both bills purportedly providing relief from unfunded mandates. S.B. 1015 waives all mandates, with certain specified exceptions, from towns who get less than 3% of their budget from equalization grants or which decline equalization grants. It is of some solace that the town’s basic special education obligation, under C.G.S. §10-76d and under federal law, cannot be waived. But there are numerous other special education obligations that are not contained in that section. My view is that this waiver is irresponsibly drafted. We do not know what is waivable and what is not, from the text of the bill. As to special education, Connecticut gets Part B funding from the federal government by submitting a state plan committing the state to following very specific obligations of the IDEA. Enacting an open-ended waiver provision, such as is contained in S.B. 1015, would jeopardize federal funding. More fundamentally, this bill confuses the constitutional status of municipalities. Sovereignty resides in the State of Connecticut. Municipalities are a creation of the State. The State has every right to impose statutory obligations on municipalities with or without reimbursement. The issue of funding mandates simply comes down to whether the obligation should be paid for by local property taxes or by state income and sales tax.

H.B. 7276 is not open-ended, but contains specific objectionable provisions. Section 2 makes the provision of an alternative educational opportunity optional to expelled certain expelled students. Perhaps nowhere is the cost-benefit analysis more clearly in favor of mandating the intervention. Most expelled students do not return to school and do not graduate. A sizeable number of expelled students end up involved in the criminal justice system. By throwing these kids out on the street, we are, as a society, obligating ourselves to paying for years of policing, incarceration, and social services. A misbehaving student provides us, as a society, with an unparalleled opportunity to intervene and stop a downward cycle, perhaps at the last available moment. Currently, alternative educational programs are weak and largely ineffective. Instead of eliminating the mandate, we should be devoting significant resources to providing counseling, mentoring, vocational opportunities, and engaging academic challenges to these kids. We are not going to bring all of them around, but the long-term benefit of bringing even a few around makes the program worth it.

Section 4 of H.B. 7276 is also objectionable. It seeks to limit training of restraint and seclusion only to the teachers and other school employees who have direct contact with students. This is not sound. Virtually everyone in a school has direct contact with students. Further, it is often the ancillary staff — janitors, kitchen staff, office staff – who get into confrontations with students, simply because they lack the training and sensitivity that the professional staff has. By triggering a student, their actions may well lead to the sort of confrontations that produce restraint and seclusion. While the intensity of training could surely be less for the non-direct staff, eliminating restraint and seclusion training altogether for these people is unacceptable. In this regard, the Education Committee should secure a referral of H.B. 7111 which deals with restraint and seclusion and which was reported out of the Committee on Children on March 7.

S.B. 1014 contains various provisions. Section 2 provides for a school security infrastructure grant program. After the massacre at Sandy Hook, it is beyond question that our public schools need security and all schools in the state have installed a variety of security measures. Yet, we have done nothing to study the effect of locked doors, metal detectors, lock-down drills and the like on our children, particularly the youngest ones. These security devices create a climate of fear, which may well interfere with learning. Perhaps there are equally effective security devices that do not make a school feel like a prison. We ought to devote some effort to finding out whether there are less traumatizing options.

Section 5 limits the availability of school records to certain incarcerated parents. Unless there is some obvious danger to access to school records, parents should never be statutorily barred from receiving their child’s record.

Sections 7 and 8 deal with the auditing of out of district placements of special education students. This is necessary. We have received reports both of private special education placements billing school districts for IEP services not delivered and of public schools submitting claims to the state for excess cost reimbursement for services not delivered. Audits can bring more integrity to the process.

Section 11, requiring that all suspensions be in-school, is sound policy. However, the provision for out of school suspension for preschool students or students in grade one or two is wrong. Little children may be violent, but they are not likely to endanger others, particularly if the adults are well trained in de-escalation. Placing any student in an out-of-school suspension communicates one thing to that student: the school cannot handle me. This empowers the child and disempowers the school. Out of school suspensions and expulsions are not sound educational policy for any student, but they are heinous for preschoolers and first and second graders.

Section 21 creates a new breed of school in Connecticut, called a CommPACT school. School choice is here to stay, so it is hard to have a principled objection to a new form of school. Still, charter schools have done a very poor job, generally, in dealing with students with disabilities and students with behavioral issues. Indeed, because charter schools have been funded based on October 1 enrollment, we have seen charter schools expel students with disabilities shortly after October 1, while collecting a full year’s payment for their schooling. In creating a new type of school, the Legislature needs to make clear that all the protections of the IDEA apply to the school, that the school cannot discriminate against children with disabilities in admissions or in services, and that the school needs to provide a free appropriate public education to students with disabilities, the same as any public school.

This guarantee should also be placed in H.B. 7271, creating the technical high school system as an independent agency. The technical schools in Connecticut have neither accepted students with disabilities without discrimination, nor have they provided high-quality special education services. Giving them more independence is not likely to make them more responsive to the needs of students with disabilities. In making the technical high schools an independent agency, the Legislature needs to make clear that all the protections of the IDEA apply to the school, that the school cannot discriminate against children with disabilities in admissions or in services, and that the school needs to provide a free appropriate public education to students with disabilities, the same as any public school.

Before concluding, I need to return to the issue of funding. Parents with the money to hire experts, advocates and lawyers are often able to secure appropriate educational services for their children. But, those parents are a small minority of the 65,000 special education students in Connecticut. When the IDEA was passed, there were three mechanisms to assist families of lower means. First, parents who succeeded in bringing a due process action could get their expert and attorneys’ fees paid for by the district. In a one-two punch, the Supreme Court eliminated attorneys’ fees except when there is a final decision of the hearing officer in Buckhannon and eliminated any reimbursement for expert fees in Murphy. Second, where parents disagreed with a district’s evaluation, they had the right to an independent educational evaluation at public expense. School districts, especially in Connecticut, have employed a variety of means to shut down these independent evaluations, rendering this option rarely useful. Third, the statute provided for a parent advocacy center. The Connecticut Parent Advocacy Center (CPAC) is functioning, but is overwhelmed with cases and lacks the authority to bring due process hearings on behalf of parents. So, a free appropriate public education is largely a hollow promise for many students with disabilities in Connecticut.

With no serious threat of successful challenge by most parents, some school districts provide little more than baby-sitting to many special education students. The State Department of Education refuses to investigate the substance of special education programming, regulating school districts on procedural trivialities. Gradually, the special education system has become a top-heavy bureaucratic institution, substituting form for substance, procedures for quality education. Certainly, more money is needed, from the federal government, from the State, and from the towns. But equally important is re-empowering parents to fight for the rights of their children. This Committee needs to take the lead in encouraging the State Department of Education and local school districts to put their effort and money into delivering high-quality education, not checking off the right boxes at the right time.