Parents as Quasi-Therapists Under the Individuals with Disabilities Act
Mitchell H. Rubinstein
New York Law School; Rutgers University School of Management and Labor Relations
July 2, 2008
University of Cincinnati Law Review, Vol. 76, No. 3, 2008
The Supreme Court has recognized that Congress enacted the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400-1482 (IDEA) to ensure that children with disabilities have available to them a Free Appropriate Public Education that emphasizes special education and related services designed to meet their unique needs. This Article addresses whether IDEA entitles parents of disabled children who provide therapy to their child and act as a quasi-therapist because the school district failed to provide a Free Appropriate Public Education are entitled to reimbursement for the therapy services they provide. Additionally, Bucks County Department of Mental Health/Mental Retardation v. Pennsylvania, 379 F.3d 61 (3d Cir. 2004), the seminal case that held that parents, in certain circumstances, are entitled to reimbursement for therapeutic services they provide is extensively analyzed. This Article maintains that Bucks County was correctly decided, with the exception of a portion of the opinion that limited parental reimbursement to situations where a therapist was unavailable. In any event, parents are now clearly entitled to full reimbursement after the Supreme Court's May 2007 decision in Winkelman v. Parma City School District, 127 S. Ct. 1994 (2007), which held that parents have independent and enforceable rights under IDEA.
In reaching this conclusion, this Article also addresses the principle objections to providing parental reimbursement. Specifically, some object that parents are not legally qualified, since most are not schooled in the needed therapy. However, existing precedent permits reimbursement of uncertified therapists, and this Article submits that parental therapists should not be treated any differently. Additionally, some object that if parents are reimbursed as quasi-therapists, they might become "employees" of the school district and be entitled to employment law rights and protections. This Article demonstrates that although IDEA is similar to the National Labor Relations Act and the Americans With Disabilities Act, a parental therapist is unlikely to be considered an "employee" of the school district under any of the tests that courts use to define employees. This Article also discusses the deplorable education conditions many disabled children were forced to tolerate before the enactment of IDEA in 1975. This history is necessary to understand, and be aware of, when examining special education law policy.
Number of Pages in PDF File: 40
Keywords: IDEA, Free and Appropriate Public Education, Parents, Employees, Students
JEL Classification: I20, I21, I29, K31, J58, J70, J71, J78, J78Accepted Paper Series
Date posted: July 7, 2008 ; Last revised: July 15, 2008
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