Pearl River's Morgano Stands Among Superintendents Opposing Special Ed Bill

Pearl River Superintendent of Schools Dr. John Morgano added his voice to educators across the state calling for Gov. Andrew Cuomo to veto new legislation that would change special education placement in New York. 

Assembly Bill 10722/Senate Bill 7722 would call for schools to take a student's home life and cultural environment into account when making placement decisions. Educators have raised a number of issues with it, including potential financial burdens for school districts and concerns regarding the measure's vague language.

Morgano, who worked in special education for most of his career, shared a letter to Cuomo from the NYS Council of School Superintendents laying out a list of concerns regarding the legislation. He said it explains what he wanted to say on the matter. The full contents of the letter are at the bottom of this report.

The letter details conflicts with existing state and federal law and concerns regarding potential litigation that could be costly to school districts. Proponents of the legislation have argued that it would cut down on legal challenges of placement, but that is a point of disagreement regarding the bill.

The Lower Hudson Council of School Superintendents, which represents Dutchess, Putnam, Westchester and Rockland Counties, is also calling for a veto. Dr. Ken Mitchell, superintendent of South Orangetown Schools and chairman of the council's Mandate Relief Committee, sent a letter to Cuomo. A copy is attached to this report.

In the letter, Mitchell contends that this bill runs counter to Cuomo's stated plans to provide mandate relief for the taxpayers of New York State because it will lead to increased costs for educating children with special needs. 

"The recent legislation that will allow parents of children with special education needs to have unfettered access to costly and unnecessary private school placements is not only counter to recommendations that superintendents have made to lower costs to taxpayers, but will increase costs to districts across New York at a time when we are seeking greater efficiencies," Mitchell wrote. "The current system provides for a due process that includes checks and balances with quality controls in regard to the needs of the child and the available programs provided by a district. The new will provide open access without regard to the appropriateness of the program. Districts will simply be billed by the private providers."

The LHCSS has looked into the potential financial impact of the bill. In one example cited from 2009, a parent chose to put his child in a private school out of state at a tuition cost of $125,000 and argued that the school district should pay for it. They settled the matter out of court to avoid the legal costs.

According to the letter, 33 districts will combine to pay $82.4 million in out -of-district tuition for 1,408 in 2012-13. The new legislation would make it impossible to predict the budget needs to pay for students whose families want them in a private school setting for reasons beyond academics. 

There approximately 6,500 students classified with disabilities in Rockland County. At an estimated average of $60,000 per student, that would cost county school districts a total of $390 million if all 6,500 students were placed in private schools. That is before transportation costs.

Morgano stressed that the superintendents are not disputing the need for services for special needs students. There is concern about the potential for extreme increase in costs that could happen if the new legislation passes.  

In Morgano's case, this comes from an educator who has dedicated most of his career to special education. Morgano, who is in his second year as Pearl River's superintendent of schools, began his career teaching secondary special ed at Bernstein Intermediate School in Staten Island in 1974. He has been a director of special education and he taught the subject in college for 13 years as an adjunct professor at Mount St. Mary's College. 

The contents of the letter from the NYS Council of School Superintendents, which Morgano signed and supports, are as follows:

Dear Governor Cuomo:

I am writing to recommend you veto Assembly Bill Number 10722, Senate Bill Number 7722.

This bill is inconsistent with both federal statue and case law governing special education placement decisions and will subject school districts to serious legal challenges and excessive costs. 

The legislation would require school districts to consider a child's home environment, culture and family background when determining placements into special education. This is inconsistent with the federal Individual with Disabilities Education Act (IDEA). 

The bill would also require school districts to grant or deny a parent's request for tuition reimbursement within 90 days and require the continuation of tuition reimbursement for placements made unilaterally by parents until a district committee on special education amends the child's Individualized Education Program (IEP). This timetable is unmanageable for many reasons. Also, by exempting parents of children with disabilities from IDEA's carefully imposed conditions on tuition reimbursement, the bill contravenes the collaborative intent and framework of the IDEA, and again conflicts with federal law.

This legislation also allows parents to improperly seek to challenge a student's recommended educational placement by using home environment, and family, and cultural background as a factor to determine placement, rather than the best educational and least restrictive environments for the child. These are vague terms which will invite litigation, bringing new costs upon school districts. This provision is also inconsistent with the federal IDEA law.

Importantly, a district has no authority to enter into an agreement with a parent for tuition reimbursement in the absence of a due process complaint. Other provisions in current law prohibit this. Whether or not a parent's unilateral placement is entitled to reimbursement, is an issue which can only be addressed by a hearing officer, state review officer or court under both current state and federal law. This legislation would mandate districts to enter into agreements with parents to reimburse their child's tuition and creates a clear conflict in law.

This bill would also require districts to maintain a student in their previous placement, instead of leaving that determination to the findings of due process proceedings or reevaluation of the student's IEP. This violates federal case law that requires a district to continue to provide tuition reimbursement following a final decision by the independent hearing officer, State Review Office or court ordering tuition reimbursement; under the pendency provision the parent challenges the new IEP. (See Pawling Central School District v. Schutz, 290 F 3d 476 (2nd Cir. 2002). Murphy vs. Arlington Central School District, 297 F3d 195 (2d Cir. 2002). 

Lastly, by inviting new legal challenges to placement decisions, the bill threatens to impose significant new costs upon my district.