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News & Views - November, 2001 Issue #87

Reimbursement for Residential Placement?
mproving Your Chances BEFORE
the Contracts are Signed

By Jacqueline Goldman
Child Advocate/Consultant
Malibu, CA

[Editor’s Note: This article reflects California Law. In other states, details may vary, especially in terms of the requirement that to receive reimbursment a program must be non-profit. In general, U.S.C. Section 1412 states: “If the parents of a child with a disability…enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.” According to Wrightslaw: Special Education law, by Peter & Pamela Wright, “To protect parental rights, parents must take several steps: 1. At the most recent IEP meeting, before withdrawing the child from the public school program, you must state your concerns and state your intent to enroll your child in a private school at public expense; OR ten business days before withdrawing the child from the public school program, you must write a letter to the school in which you state your concerns and you state your intent to enroll your child in a private school at public expense.]

Making a Successful Placement
Often a family begins the arduous task of requesting an Individual Education Plan (IEP) when the child’s life is already spinning out of control. Usually the family has already made many unsuccessful efforts to control their child’s behaviors, including therapy and the like. The family hopes that by initiating the IEP process, they can secure funds so they can place their child in a residential facility. Often by the time a family begins this process the child has already caused self-harm, or has harmed someone else and may or may not have been hospitalized.

In such situations, the days, weeks and months that the IEP process can take often only exacerbates the family’s problems. So they choose instead to place their child in an appropriate facility that can begin helping their child immediately. Despite the high costs of such a program, many families use whatever means they can to enroll their child, hoping for the best. By doing this, parents run the risk of never receiving funds for the residential facility they have chosen, but with a little planning the risk can be substantially reduced.

How To Qualify for Residential Funding
In order to qualify for Section AB3632 Residential Funding, a child must meet the criteria for Emotional Disturbance according to The Department of Mental Health. The child must demonstrate:

1) An inability to learn which cannot be explained by intellectual, sensory, or health factors;
2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
3) Inappropriate types of behavior and feelings under normal circumstances;
4) A general pervasive mood of unhappiness or depression;
5) A tendency to develop physical symptoms and/or fears associated with personal or school problems.

In order to meet the AB3632 Residential Funding criteria, the child must demonstrate one or more of these behaviors for an extended period of time, to a marked degree and it must impact the student’s educational performance. These behaviors must be consistent across all life settings, including community, school and home. If a child meets one or more of the Department of Mental Health’s criteria, it essentially demonstrates that the child will also meet the local school district’s criteria for Non Public School funding, because the child’s right to “appropriate and free education” cannot be met by the local school system.

Avoiding Mistakes
The funding for your child’s residential facility comes from two sources. The local school district is responsible for funding the education portion of the residential facility, which is referred to as Non Public School (N.P.S.) Funding. The Department of Mental Health carries the expense of providing residential boarding and psychological services. It is important to note that a representative from the Department of Mental Health is assigned to your child as the lead case manager who oversees how your child is doing and whether or not the IEP is in fact being met. If you place your child in a residential program before the IEP Team has reviewed your child’s testing and evaluations and made recommendations, then you set yourself up for two possible failures. Both of these can be somewhat avoided.

1. Each school district has negotiated Non Public School (NPS) contracts with certain residential facilities, for residential as well as day school programs. Having a NPS contract with local school district means the facility has been licensed for your state and meets the school district’s criteria. The Department of Mental Health also has such criteria. If the residential facility that you chose for your child does not meet one or both of these agency’s requirements, you will have an extremely difficult time receiving funding. It will require due process and a lengthy court case, with a very slim chance of obtaining funding for that particular residential facility.

My recommendation, after being through exactly this scenario, is: don’t bother. There are too many other wonderful and fully fundable schools out there that a qualified Educational Consultant can recommend to you without wasting your money and more importantly, your child’s chance for success. Each state has a government web sight and often under the education section one can navigate to a listing that might tell them right up front if the residential facility they are considering has an existing contract with the your local school district.

More often than not, if your local school district has a N.P.S. contract with the residential facility of your choice, it is likely that the Department of Mental Health (D.M.H.) will also have a contract, but I warn you… not always. There is no way to find out whether or not your local D.M.H. does in fact have a contract with your chosen residential facility until THEY make a recommendation. You won’t receive their recommendation until many months after you have started the process, and the D.M.H. guards their contract list like a Saber Tooth Tiger. Knowing that at least your local school district has a contract with a particular school will give you an edge up.

2. The other extremely important factor that determines whether your local school district or D.M.H. will fund a school is whether or not the residential facility has a “non-profit” status. If they are not non-profit then you have next to a zero chance of getting that facility funded. Even some “for profit” schools have a “non profit status” which usually qualifies them to be funded by the state. Following these guidelines when choosing a residential program before receiving approval for your child’s IEP will ensure that you have the best chance of success in obtaining funding for the facility in which you have already placed your child.

Receiving Reimbursement, Maybe
If you have followed these steps, you have positioned yourself well to receive reimbursement. Hopefully you have found that the your child’s current residential facility has an approved and appropriate Non Public School contract with your local school district and is an approved AB3632 (residential placement) provider according to the Department of Mental Health. If so, then you need only to prove that at the time of placement, your child did in fact require these services and would have qualified if the testing and evaluations were done at that time.

If your child was hospitalized for depression or maladjusted behaviors just prior to your decision to place them in a residential facility, these are all the documents you will need to prove this. If there was no hospitalization, but a licensed professional has seen your child prior to placement, ask the professional to document the problems your child was suffering from at that time. If you have neither of these forms of documentation, then ask your child’s teachers to write about what they saw in your child at the time of placement. Make sure they include details about why your child was unable to obtain an adequate education under the circumstances. All records, such as your child’s homework papers, test results, notebooks etc., will be helpful in proving that the school did not act “in loco parentus”. That is, the school did not act in your child’s best interest given the information they had, and you, the parent, had no other choice but to place your child in a residential facility.

If you discover that your child’s current residential facility does not meet the Department of Mental Health (D.M.H.) criteria, but does meet the Non Public School criteria, you can possibly obtain funding to keep your child there while you proceed through mediation. To do so, you will need to establish that you do not have funds available to continue paying tuition, and you need time to visit the schools that have been offered to you by D.M.H.

Focusing on Your Child’s Needs
If your child has been suicidal or emotionally unstable, another option is to get licensed professionals to document that at this time, moving your child to another facility could be dangerous to the child’s well being. Often, if your child is truly unstable, you will find that some of the D.M.H approved schools do not have an appropriate suicide protocol. These schools would simply send your child to an adolescent psychiatric hospital if it appears your child is in danger of self-harm. Most residential facilities will not enroll your child if it is felt that your child is too unstable for the program to adequately meet his or her needs. I believe that although in some cases hospitalization may be the best option, there are many residential facilities with an appropriate and successful suicide protocol that alleviates the need for hospitalization. If a child needs to be sent or returned to the hospital, it can often be counterproductive.

A Word of Caution
Obviously, by the time you have obtained your referrals from D.M.H., many months have already passed and you have been carrying the financial burden of your child’s residential facility for some time. A word of caution is in order, however. If you follow the procedures outlined above, you have a very good chance of getting most of your money back, but if there is one thing you will learn down this road, it is that… nothing is guaranteed. Make sure that the money you are laying out will not financially devastate you if you are not successful in obtaining reimbursement!

A Bargaining Chip
If the mediation determines that you need to transfer your child to another facility, this can be a powerful bargaining chip once you have found an appropriate facility and they are willing to accept your child. When you reach the final stages of negotiations with the school district and D.M.H. and have proven that your child did indeed need to be placed in his or her current residential facility at the time you chose to place him or her, then you can ask your school district and D.M.H. for reimbursement. Tell them that before you will agree to move your child, they need to pay you for some or all of your expenses at the current residential facility.

These final negotiations are not unlike any business negotiations; each side needs to be willing to compromise in order to reach a mutual agreement with out further expense. If set up correctly these tactics can be a strong hold at the end of your mediation to obtain some if not all of the reimbursement for the monies you have spent. Realize though, that if you do receive reimbursement, it is usually a long time before you’ll see the check and it will require you to be as detail oriented and on top of things as you were to be successful in your case.

Always remember, no matter who you hire to help or represent you, no one knows or cares about your child as much as you. You can play a vital role in the success of your case and of course in the success of your child. Individualized Educational Plans and mediations are an opportunity for you to tell a story about your child that creates empathy. Stay clear of yelling, threatening or creating an adversarial relationship with those from whom you seek help. Being prepared with information and facts is the only way to stay sane and successful.

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