The Case for Elimination of the Payor of Last Resort Provision in IDEA
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The Individuals with Disabilities Education Act (IDEA) is a law ensuring services to children with disabilities throughout the nation. IDEA governs how states and public agencies provide early intervention, special education and related services to more than 6.5 million eligible infants, toddlers, children and youth with disabilities. An obstacle to improving mental health services to children and adolescents is the "Payor of Last Resort" provision (Sec. 640 PAYOR OF LAST RESORT). In this article, Dr. Dikel provides nine reasons why this provision prevents effective mental health treatment for students.
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In my opinion, the most important step we can take to improve services to youth in schools who have disabilities is to remove the "Payor of Last Resort" provision from the federal special education law, IDEA.
Here are 9 reasons why "Payor of Last Resort" should be removed:
Given the fact that the ED category has terrible outcomes, that most of the students in this category have mental health disorders that are not effectively treated or even identified, consideration should be made to eliminate this category and either replace it with a more functional category, or to use the Other Health Disability category for students who have diagnosed mental health disorders that adversely affect their educational progress.
Here are 9 reasons why "Payor of Last Resort" should be removed:
- Research indicates that approximately 18% of children and adolescents have mental health disorders (e.g., depression, post-traumatic stress disorder, ADHD, psychotic disorders, etc.), and that 5% have severe mental health problems. Only 20% receive any mental health treatment for their disorders.
- These disorders often manifest in the school setting, especially when they result in disruptive behaviors. This can lead to evaluations for the need for special education services.
- The category of Emotional Disorders (known in some states as Serious Emotional Disorders, Emotional/Behavioral Disorders, etc.) does not require the identification of an actual disability, but is only based on behavior. However, the vast majority of students who are evaluated for this category have evidence of mental health disorders.
- Outcome research indicates that this category of special education has extremely poor outcomes. The reason for this is that the “E” in “ED” (or “SED” or “EBD”) is rarely treated. Behavioral interventions for behaviors that stem from underlying, intrinsic disorders do not tend to be successful.
- School districts are reluctant to identify mental health disorders or to recommend to parents that their child have a mental health evaluation, even when there is clear evidence of an untreated or inappropriately treated mental health disorder. This is primarily due to the fact that the district is potentially liable for payment of not only the diagnostic evaluation but also for subsequent treatment of the student, if the district recommends services. This can result in payments of tens of thousands, or even hundreds of thousands of dollars, in cases where the student is placed in residential treatment, and the family’s insurance does not cover the placement. Courts have decided in these cases that the student’s educational needs are “inextricably intertwined” with the mental health needs, and that the district is thus responsible to pay for both services.
- Across the U.S., many school psychologists are under a “gag order” from their school administrators to never directly recommend a mental health evaluation of a student. Yet hundreds of millions of dollars are spent every year doing educational assessments to qualify these students for special education services, and to provide services that are not effective. Often, students who have severe mental health disabilities, (e.g., post traumatic stress disorder resulting from trauma, mood disorders, etc.) are perceived by school professionals simply as having behavioral problems. This only exacerbates the student’s underlying disability.
- If "Payor of Last Resort" is eliminated, and if other funding is identified (e.g., a State “High Needs Fund”, etc.) then school districts would be much more willing to address students’ mental health issues appropriately. They would not be in the “mental health business” of diagnosing or treating students, but could be partners with other systems (counties, physicians, mental health professionals, etc.) to serve students in a collaborative manner. Children and adolescents are observed on a daily basis in school, and school professionals are often much more familiar with the students than physicians, who see them on only an episodic basis. With the payer of last resort mandate removed, there would be a much greater likelihood that at-risk students would be identified, evaluated and successfully treated.
- Unless this disincentive is removed, other interventions aimed at improving students’ mental health (e.g., increasing the number of counselors in schools) will not have significant impact, as the students’ underlying mental health disorders will still remain unidentified and untreated if schools continue to fear payer of last resort liabilities.
- A more complicated issue relates to the Emotional Disturbance category of special education; this is the only disability category that is not directly tied to an actual disability. It is a tautological category, in that it becomes the disability. (For example, a student who has no mental illness disability, but who is delinquent and aggressive, may be placed in this category. If he/she subsequently becomes violent with a teacher or peers, even if this behavior is demonstrated to be planned and volitional, the student cannot be expelled. A manifestation determination would determine that the behavior was due to the “disability”, the disability being the category itself).
Given the fact that the ED category has terrible outcomes, that most of the students in this category have mental health disorders that are not effectively treated or even identified, consideration should be made to eliminate this category and either replace it with a more functional category, or to use the Other Health Disability category for students who have diagnosed mental health disorders that adversely affect their educational progress.