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JLARC says more children with behavioral problems should be served in public schools
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JLARC says more children with behavioral problems should be served in public schools

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A new legislative study says Virginia could serve more children and youths with special needs in public schools instead of private day schools if the state would eliminate restrictions on using money that it and local governments pay under the Children’s Services Act.

The report by the Joint Legislative Audit and Review Commission on Monday said Virginia places more students with disabilities in out-of-school settings than most other states and estimates that 10% of children sent to private day schools “could likely be served in less restrictive settings.”

The study attributes the overreliance on private day schools to state laws and policies that prevent money from the Children’s Services Act from being spent on services in public schools for students with behavioral disabilities. Lawmakers adopted the act in 1994 to coordinate services for children and youths in foster care, public schools, behavioral health and juvenile justice programs.

The findings prompted Senate Finance Chair Janet Howell, D-Fairfax, to question whether Virginia faces “some risks” of legal action for failing to serve students in the least restrictive environment necessary.

JLARC Associate Director Tracey Smith, who oversaw the study, answered that tying money from the program to placements in private day schools, rather than less restrictive public settings, “could be a violation” of students’ rights under the Individuals with Disabilities Education Act, a federal law first adopted 45 years ago to require individualized school services for students with disabilities.

“Where the rubber meets the road is whether or not local [Individual Education Plan] teams are placing students in private day schools in order to access that funding stream, when the alternative is they could be served in public schools with their existing resources,” Smith told the legislative commission.

The study recommended that the General Assembly consider allowing funds “currently reserved” only for children in private day schools for special education to also be used to pay for intensive services in public schools to prevent out-of-school placement as well as help students transition back to public school settings.

JLARC Director Hal Greer introduced the study by explaining that concerns about the rising costs of serving children in specialized private day schools may be due to “factors that are not within the program’s or the General Assembly’s control.”

“However, the rules dictating how CSA funds can and can’t be spent have prevented children from being served in potentially less expensive settings,” Greer said. “We concluded that the way in which the state law requires some children’s services to be funded by the CSA program no longer makes sense from a policy or good governance standpoint.”

The JLARC study does not fault private day schools, which it says “play a valuable role in special education” by servicing children who exhibit disruptive and potentially destructive behavior. They generally serve smaller student populations than public schools with a much lower student-to-staff ratio.

But state and local spending on private day school services under CSA has increased significantly in the past 10 years, primarily because of a 50% rise in enrollment, as well as higher tuition and increased services. The program serves more children with “challenging behaviors” because of autism, past trauma or anxiety than in previous decades, the study found. Children also are entering private day schools at a younger age and staying longer.

Tuition at private day schools has risen significantly in the past four years, but the study found that rates generally reflect the schools’ expenses, especially for staff. While JLARC found that the rates are not transparent for consumers, it concluded that state control over rates would have raised costs in years when tuition increased by less than the rate of inflation.

“We were very encouraged to hear today that JLARC gave high marks to our private day special education schools for their provision of high quality services to challenging populations of students with disabilities, who are not able to adequately receive these services in public school settings,” said Bill Elwood, executive director of the Virginia Association of Independent Specialized Education Facilities, which represents 80 private providers.

“We were also happy that JLARC vindicated the rates our schools have been charging for these services,” Elwood said in a statement.

The association expressed concern about the potential consequences of a JLARC recommendation to transfer CSA funding for private day schools from the Office of Children’s Services to the Virginia Department of Education, which already licenses and inspects the private facilities.

Currently, the state office that administers the Comprehensive Services Act provides funding for private day school services, but has “no authority to oversee school placements, quality or operations,” JLARC said.

The study suggests that the assembly consider shifting funding to the education department in mid-2022, but said the change, among other things, would require the state to decide whether to continue paying for the services on a “sum-sufficient” basis, or whatever they cost.

“It is vitally important that whatever funding or jurisdictional decisions are ultimately made, that the needs of our most vulnerable children are paramount and not driven by fiscal considerations,” Elwood said. “Sum-sufficient funding in CSA has been the avenue through which the educational and support needs of these children are funded and this must be retained.”

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