News

By: Joshua M. Kershenbaum, Esq. of Frankel & Kershenbaum, LLC
This article originally appeared in MetroKids^® Magazine, February 2010

2009 was generally a good year for expanding the legal rights of children with special needs and their families. Nationally, the biggest change came from the U.S. Supreme Court. In the Forest Grove case, the Court ruled that parents can sue their school district for private school tuition reimbursement even if their child never received special education services from the district.

Locally, Pennsylvania and New Jersey joined the growing ranks of states that now require insurance companies to cover services related to the diagnosis and treatment of autism and related disorders. Delaware does not have such a law yet, but legislators in the First State are debating several important bills affecting the rights of children with special needs. Pennsylvania also changed its regulations governing gifted education.

Forest Grove: A Big Win for Families of Children with Special Needs

When your school district cannot (or will not) appropriately address your child’s special education needs, the law requires the district to pay for your child to be educated elsewhere, even if that means footing the bill for an expensive private school.

In Forest Grove School District v. T.A., the Supreme Court ruled that the right to sue a public school district for tuition reimbursement does not depend on whether the child received special education services before.  Now, parents can sue the public school for tuition reimbursement even if they enrolled their child in private school before the child received any special education services, as long as the child was actually eligible to receive these services and the school district was unable or unwilling to provide them.

Pennsylvania and New Jersey Require Autism Insurance Coverage

2009 was an historic year in our area for people with autism and related disorders.  Both Pennsylvania and New Jersey joined the growing ranks of states (now 15) that require insurance providers (including Medicaid AND many private insurers) to cover the costs related to the diagnosis and treatment of autism spectrum disorder.  This includes behavioral therapy, such as Applied Behavioral Analysis (ABA).  New Jersey, which has the highest rate of autism in the country (1 in 94 children, according to a recent CDC study), now requires coverage not only for the treatment and diagnosis of autism, but also a broad spectrum of developmental disabilities, such as Childhood Disintegrative Disorder, Asperger’s Disorder, Pervasive Developmental Disorder – Not Otherwise Specified, and Rhett’s Syndrome.

Under the new Pennsylvania Autism Insurance Act (ACT 62):

• Many private insurance companies MUST cover diagnostic assessment and treatment of ASD for children under 21, up to $36,000 per year
• The Pennsylvania Department of Public Welfare MUST cover services for those in the Medical Assistance program who do not have private insurance, and for those whose costs exceed $36,000/yr
• Covered services include: medically necessary prescriptions and blood tests, psychiatrist/psychologist consults and therapy; applied behavioral analysis; speech, occupational and physical therapy
  

Under the New Jersey Autism Bill, beginning in February, 2010:

• Insurance companies MUST provide up to $36,000/yr for medically-necessary behavioral early intervention for all children under 21 with autism, and with other developmental disabilities;
• Covered services include: diagnostic screening, therapeutic services, including any medically-necessary occupational, physical and speech therapy.
  

• consider factors other than IQ to determine eligibility for gifted education
• provide a single IEP for those children who are both gifted and have a disability
• be more proactive informing parents (including those with children in private schools) about the availability of gifted education in the district