Gaskin Settlement Expected to Boost Inclusion
by Holly Swanson
As parents of special needs children know, navigating the ever-changing legal and educational world can be a challenge. Several recent court rulings could affect the state benefits that children are eligible for and the education they receive. Many of these changes vary by state.
The U.S. Supreme Court recently ruled in Schaffer vs. Weast that the burden of proof in challenging the effectiveness of a child’s Individualized Education Program (IEP) lies with the party questioning its adequacy. In most cases, this places the burden of proof with the child’s parents, but the ruling applies differently in each state.
Recently changed guidelines to the Individuals with Disabilities Education Act (IDEA) will also affect families in the Delaware Valley. One of the most notable changes in IDEA is the elimination of short-term objectives in a student’s IEP.
Without these objectives, critics argue, parents will be unable to track their child’s progress toward annual goals. But as states have the authority to implement or disregard these guidelines, the changes will not be universal.\
In Pennsylvania, here are some of the most notable recent changes.
The Gaskin Settlement
The settlement of a class-action lawsuit, Gaskin vs. PA, is expected to increase educational opportunities for more than 200,000 of the state’s disabled and special education students. The suit’s key ruling requires school districts to integrate special education students in regular classrooms when possible.
“The good thing about Gaskin is that it gives further incentive for schools to provide inclusive education,” says Jerry Tanenbaum, a partner specializing in education rights with the law firm of Schnader Harrison Segal & Lewis, LLP, with offices in Philadelphia and Cherry Hill, NJ.
The plan, which was finalized in September, requires schools to provide educational support or modified instruction, as needed, in an effort to include disabled students in standard education practices. A state-appointed advisory group will closely monitor the success of the program by requiring districts with poor records of inclusion to develop corrective action plans.
Concerns remain, however, that some districts may rush to integrate students without first establishing a sufficient support system in an attempt to avoid a negative rating.
“Parents have to make sure their children won’t be dumped into inclusive settings without the proper support,” Tanenbaum cautions. “For many children, successful inclusion is very complex and requires a great deal of training for teachers, significant involvement of special education instructors, and possible modifications to the curriculum and classroom, including class size.”
Tanenbaum advises parents to insist on proper and complete advance groundwork and to remain in close contact with their child’s teachers during the inclusion process.
For more on the Gaskin settlement, see www.pde.state.pa.us/special_edu
Schaffer vs. Weast
Pennsylvania does not have a regulation determining who bears the burden of proof when questioning an IEP. As a result, the U.S. Supreme Court ruling will now require Pennsylvania parents to assume the burden if they doubt the effectiveness of their child’s IEP.
Special education advocates worry that this will prevent parents from challenging an IEP, in some instances because they lack the resources to fight a school district.
“In the past, school districts had the burden of proof based upon common sense recognition that they had the obligation to meet minimum federal standards in providing services to the child,” says Tanenbaum.
“The school districts have far more resources to make their case, including multiple experts on staff. In most cases, the school district is represented by attorneys, while the child is only represented by a parent
“The district’s legal fees are often covered by insurance, where parents, if they have counsel, are often forced to utilize their child’s educational fund, or even take out mortgages, to defend their child’s rights.
For more on Schaffer vs. Weast, see www.supremecourtus.gov/opinions/05slipopinion.html
IDEA
Pennsylvania chose to follow the recommended changes in IDEA by eliminating short-term objectives from IEPs.
“The best thing parents can do now is make sure that the annual goals are far more detailed and measurable than in the past,” Tanenbaum advises. “They should also seek periodic measurable progress reports from teachers, backed up by good data collection.”
Since some students may reach their annual goals early, it’s important to revisit the IEP so new goals can be established. Children who are not on track to meet their goals could benefit from a change in the approach or methods. In either case, data collection, parent involvement and communication with teachers are crucial to avoid wasting time during a child’s education.
For more on IDEA changes, see www.wrightslaw.com/idea/art/iep.road-map.htm
Medical Assistance
After months of debate, the PA Department of Public Welfare (DPW) passed new regulations requiring families to pay a monthly premium for Medicaid. Previously, families with disabled children received Medicaid without regard to their income.
“For some families, it will be a tough decision if they want to keep the coverage and pay the premium,” says Richard P. Weishaupt, a senior attorney with Community Legal Services Inc., in Philadelphia. “Their benefits won’t change, but they will have to decide if it makes sense to keep them.”
Under the new policy, a family of four with income above $40,000 will pay $27 a month to keep Medicaid coverage.
The DPW must wait until receiving approval from the U.S. Department of Health and Human Services before it can implement the new premiums.
Holly Swanson is a freelance writer.