Tara Murphy is a SPAN Resource Parent, a Volunteer Advocacy Ambassador for Autism Speaks, member of the Council of Parent Attorneys and Advocates (COPAA), founder of Parenting Frontier, and the mother of two children diagnosed with developmental disabilities.  You can listen to a podcast with Tara and Laura Waters here called “Learn as Much as You Can.”

Most of us use some kind of insurance— auto, homeowners, renters, medical, dental, malpractice —to protect ourselves from unplanned occurrences. New Jersey public school districts use insurance too, for buildings, vehicles, workers compensation, and general liability.

School districts have the option of an “Errors & Omissions” policy, a kind of speciality insurance. Out of 584 operating school districts in New Jersey, 313 have this policy, which covers the district and school board against claims of wrongful acts, negligence, misleading statements and —most importantly for our purposes —liability insurance to protect them when parents  exercise their rights to due process and sue schools on behalf of their children with disabilities. 

This use of this type of speciality insurance victimizes parents and children.

Let me explain.

Every NJ school district’s insurance policies are publicly available through Open Public Records Act requests (OPRA). If you file an OPRA request, you’ll find out your district’s coverage, such as who chooses the attorney to represent the school board, monetary limits, the number of allowable occurrences per policy term, and what the board is responsible for through deductibles. If, for example, a school board carries a policy that covers three claims, each at $100,000 in coverage with a $10,000 deductible, and only one claim is filed that year, the school board is inclined to use up that coverage on the 2nd and 3rd claims rather than settle them.

In other words, it is to the board’s benefit to litigate rather than work out settlements with parents.

In fact, prior to the rise in Errors and Omissions policies, the majority of special education disputes were settled out of court. Since 2013 when state data is available on the NJDOE website, the number of due process complaints filed has risen steadily. (See chart below.)

Mediation is an option during the early part of the dispute resolution process and a district’s insurance would most likely pay for the board’s attorney. And there’s an added incentive here: The court backlog  is so long that it makes it impossible for districts to complete due process hearings in the 45-day time period allotted in the law. In fact, only about 5% of all cases filed are completed within that time period. School boards know that parents who file for due process will be waiting a long time for a resolution. 

Once you move on to hearings, you’re looking at an average of 9 months until completion. This places parents in a terrible bind. For example, parents disputing their preschooler’s initial placement have no stay-put protection, which is the requirement that your child’s placement remain the same until resolution of the dispute. Why? Because a preschooler has no IEP (Individualized Education Plan) in force yet.

So the only options available to parents are 1) agreeing to a placement they don’t believe is appropriate; 2) unilaterally placing their child in a private school at their own expense and seeking reimbursement; 3) withdrawing from the district. For option 2, the district has no incentive to settle a case where the student is attending school elsewhere at their parents’ expense. The tragedy, of course, is that preschool is the ideal time for special needs children to progress in intensive educational programs. Yet many of these children fail to thrive in their local district programs. General education, or “inclusion,” is the common placement for a preschooler, appropriate or not.

Districts can also change placements on children who attend out-of-district schools by creating programs that appear to mirror those found in specialized schools. Whether districts really do provide appropriate programs is unknowable until many months later. The only way to halt a change in placement is for the parents to file for due process. 

You can guess the rest: The districts’ Errors and Omissions insurance kicks in for defense of the case and provides them with $100,000 in legal coverage, all while parents pay for their own representation out-of-pocket. Many NJ families can’t afford to hire attorneys for cases that could drag on for more than a school year, so they are more likely to accept the district’s determination. 

The end result? The district has the upper hand, regardless of the merits of the case. The Errors and Omissions coverage becomes a weapon against children with costly placements, affording districts the opportunity to provoke parents and dress up their program enough to fool a judge. 

It’s true that parents have the right to represent themselves in these hearings but these cases can become very complex and time-consuming. Working parents who are already managing a child with a disability will be overwhelmed by the idea of representing themselves. Given that districts prevail in 70% of the cases heard, the deck is already stacked against parents. Again, it’s clear how this will play out for children with parents who have neither the time to represent themselves, nor the financial resources to pay a lawyer to fight for their rights. Even the child of parents who can afford the fight has slim odds of keeping their child’s placement. Though stay-put protection will prevent the child from being yanked out of school until the dispute is resolved, this isn’t an infinite time period. 

To my knowledge, there is no parent group insurance pool which would afford parents comparable coverage in special education disputes. Therefore, many NJ children with special needs are at the mercy of their school district. IDEA was intended to provide  a free appropriate public education and related services to children with disabilities. The local school district is entrusted to provide this. 

Yet that same district affords itself  legal power to deny children the specialized programs that they need.

This is wrong. We must fight for change.