You make excellent points! That’s disappointing about how some districts are abusing ARRA money. Special ed money, whether from the usual sources or ARRA, is categorical funding that can only be lawfully spent on special ed. I heard from one parent that her district was trying to figure out a way to use the ARRA money to “reimburse” itself for past general ed expenditures on special ed. Like that wouldn’t get them in trouble!!!!

Not all districts have insurance. In one case we had, the district belonged to a Special Education Local Plan Area (SELPA) that was set up as a Joint Powers Agency (JPA). The JPA served as the board of the SELPA and was made up of all the superintendents of the member school districts and the county office of ed. The district of which our client was a student was a tiny, rural K-8 district that couldn’t comply with the regulations if someone put a gun to their heads. Their attorney was taking them all for a ride, causing problems so she could bill for more of her time to argue to get them back out of the trouble she’d gotten them into in the first place.

It turned out that it was the JPA that was responsible for the costs. In other words, all the districts and the county office that belonged to the SELPA collectively bore the costs of any litigation that took place involving any of the districts that belonged to the SELPA. So, if School District A got sued, all of the districts and the county office were financially responsible for the costs. It took money away from all the other member districts and the county office.

In that case, we did file a compliance complaint against the district first for its breach of a previously agreed-to settlement agreement. The Calif. Dept. of Ed. found them out of compliance and ordered corrective action. The district’s lawyer responded by filing for a writ of mandate against CDE and naming our severely autistic client as a Party in Interest. The family didn’t even get notice of the court date until 4pm the day before. Thankfully, the attorney who had represented them in the negotiation of the settlement agreement that was breached was able to drop everything and rush up the following morning for the 8am court date. She and the attorney for CDE kicked some butt, but the waters got terribly muddy before the whole thing was said and done.

In the end, we had to go to due process (the district filed against the student, if you can believe it). I paralegaled under the student’s attorney and was there for the whole thing. We called the CDE investigator as a witness as well as the attorney who had represented CDE in the Writ of Mandate case. While the district’s personnel testified that they had never intended to eliminate the terms of the original settlement agreement and thus deny a FAPE, the district had been arguing in State court that it would suffer irreparable harm if forced to comply with the settlement agreement and had, in fact, filed for due process to get the services and placement it had previously agreed to pay for eliminated.

I’ve had mixed results with compliance complaints. It really comes down to who you get for an investigator and what kind of history that person has already had with either a particular district or a particular attorney representing a district. I had a case rather recently that just turned into a total disaster. The intake person at CDE screwed up, bifurcating my one compliant of two allegations into two separate allegations assigned to two different investigators and only gave the evidence to one of the two investigators. Apparently, it was beyond CDE’s capacity to photocopy the evidence so that both investigators had it.

Then investigator #1 got sick, resulting in her half-investigated case being shifted over to investigator #2. Investigator #2 was totally confused by the whole thing and hadn’t even started the original investigation she’d been given because she didn’t have the evidence until half the investigation timeline had gone by.

None of it was helped by the fact that the district’s exceedingly charming lawyer blatantly lied to both investigators in his written responses to the complaints. Investigator #2 couldn’t make sense of the district’s documents (because they were a train wreck) and the district’s lawyer’s responses just confused things further. Where we had asked that the child’s goals be re-written in a measurable manner, he responded that we were asking for the eligibility to be changed. (The allegation had been failure to follow the proper procedures when parents request that student records be changed.)

Where we had alleged failure to implement the agreed-to portions of the IEP on the basis that a move from APE to gen ed PE had been consented-to by the parents, he asserted that the information provided to us by the District’s administrator indicating that the change in PE had never happened (as was corroborated by the student and his parents) was inaccurate and that I should have taken it upon myself to track down the student’s teacher and confirm that what her boss had told me was accurate before resorting to filing a complaint. CDE refused to reconsider its findings when we submitted additional information and evidence. In fact, we don’t even think it read what we submitted. It denied our request within 24 hours of receiving it.

Investigator #2 found the district in compliance on both counts just to get the complaints off her desk. I didn’t know that the lawyer had lied to CDE until I got her findings and was flabbergasted at the outcomes. Rather than waste the family’s limited financial resources on filing for a Writ of Mandate against CDE, we responded with a letter to be placed in the child’s file that sets the record straight with respect to the misrepresentations made by the District’s lawyer and have recommended that if the family takes the District to due process over the resultant FAPE claims that CDE be named as a co-respondent. At this point, CDE is equally culpable for the denial of a FAPE.

I’ve not seen any evidence that state ed agencies are willing to actually pull funding from offenders of the procedural requirements. It has to become nightmarish before they’ll even consider it, and even then I’m talking over-the-top, already way-too-far-gone situations. They don’t step in soon enough.

Plus, you have to bear in mind as well that compliance complaints only pertain to procedural violations. In many instances, all that districts are ordered to do as corrective action is to circulate a memo. That hardly amounts to systemic change or improvement. That said, I’ve gotten some great orders for corrective action in which heads truly rolled and the offending districts were made to really clean things up. Again, I think it comes down to the investigator.

Anne

As for why the district might willing to risk due process, it all depends on their insurance coverage. Some districts have insurance that covers attorney’s fees for due process; as such, it’s like hitting a deductible at which point everything beyond is merely gravy.

I have found the best way to answer a combative district is with administrative complaints to the state dept of education. The holy troika of money spent on attorneys, findings of violations and compensatory education is unsustainable for most districts. Moreover, as the findings pile up, the state will have no choice but to threaten to freeze the district’s funding. The other cool thing about a complaint is that it’s black or white — they either broke the law or they didn’t. There’s no room for persuasive lawyering and painting the parent as a problem; rather, it’s all about whether they followed the law.

In my experience, one you show your district that you can file a successful complaint and that it is an evergreen, ongoing tactic you can employ again and again, they will happily provide FAPE for your child because it is much easier than being compliant with 856 specific special-ed laws.

They have no legal authority to deny a legitimately needed service. You may have to file for due process, but there is some leg-work you’d need to do first. The first thing you need to do is get 2nd opinions regarding your child’s special education needs. I’m presuming the District’s most recent assessments don’t suggest that your child needs an aide. Therefore, you need to disagree with the District’s most recent assessments – do this in WRITING – and ask for Independent Educational Evaluations (“IEEs”) and public expense. The only way the District can turn you down is to take you to due process to show that its assessments were appropriate. If you can show the holes in what they’ve done – unanswered questions, needs that continue to go unaddressed for which there is no assessment data, etc. – then you should be granted the IEEs. Once you have the assessment data back from the IEEs, then you can argue for whatever goals and services the IEEs recommend.

Bottom line is that you need expert recommendations to go up against the District’s recommendations. Common sense on the part of parents carries little to no weight in due process. The right thing for school districts to do when parents raise concerns about the possible need for a particular service is to assess to determine if such a support is needed. However, what sometimes happens is that the District’s assessors skew their data and misrepresent their outcomes to fall in line with the District’s pre-existing intent to deny the service, in which case parents are left having to disagree and ask for IEEs.

What I find curious these days is that with the shot in the arm that most school districts are getting from ARRA for special education, and the budget cuts to general ed that most are experiencing, why in the world would they fight a parent over special ed costs? For the first time in, like, FOREVER, schools generally have more money for special ed than they have for litigation costs, particularly if the parents are right and would prevail in hearing. If the parents win, the districts have to pay not only their own legal fees for due process but also those of the parents. Providing an aide would cost a heck of a lot less than getting sued over the whole situation.

Anne

They do not want to provide the one on one support – due to funding.

Very sad that parents have to go to bed and wake up worried if their child will receive special educational services if the school refused to place it in there IEP’s – with the only other option is to take them to mediation or due process which this school district i’m advise will rack up attorney fees that parents cant afford

Re: So, when I’m being lied to at a meeting, I always like to restate their position and then say, “I just want to make sure I’m understanding your position because under IDEA I have to provide informed consent; I have to understand it exactly and that means my consent will be voided if I later find out that the information presented was wrong or that I was misled or lied to.” You’d be surprised how positions change with that comment.

Absolutely brilliant!!!!! Thank you for providing this input!!!

As for the DOE recommendation that you file a complaint, I say “Go for it!” This misbehavior probably isn’t going to stop until the District is met with a consequence for having engaged in it and given an order for corrective actions from the DOE. The DOE would then provide oversight and technical assistance to ensure that the District complies.

Anne

Regarding the “offer of FAPE” citations written atop IEPs, I think this is yet another opportunity to look at informed consent and what it means in IDEA. At its heart, informed consent is a protection against parents being misled or deceived into signing something. So, when I’m being lied to at a meeting, I always like to restate their position and then say, “I just want to make sure I’m understanding your position because under IDEA I have to provide informed consent; I have to understand it exactly and that means my consent will be voided if I later find out that the information presented was wrong or that I was misled or lied to.” You’d be surprised how positions change with that comment.

Yours is a spectacularly well made point. I think the best way to deal with this until the policies are changed is to provide the district with written notice of your own. On the signature page of the IEP, indicate that your consent is withheld until you receive a full copy of the IEP and that your signature merely indicates that you attended the IEP meeting. I’d also write a separate letter to the district’s director of special education with each IEP document that is handled by the district this way, each time informing the sped dir in writing that the district has failed to permit you to give informed consent and, therefore, your consent will be withheld pending your review of the proposed IEP. I’d also add language that expresses your disappointment that the district has chosen to conduct itself in a manner that denies you the opportunity to meaningfully participate in the IEP process.

It’s useful to keep in mind that the IEP document provided to you by the district is it’s offer. It’s supposed to be an offer of FAPE, and I’ve found in the last couple of years that a lot of school districts will go so far as to write language in the IEP meeting notes that mirrors the offer of services and placement found elsewhere in the document, heading the repeated information as “Offer of FAPE” knowing that most parents have no idea what that means.

The legal strategy behind this on the part of the districts that do this is to have the parents consent to the IEP, including language that describes the contents of the IEP as a FAPE, so that if the parents later come back and assert that the IEP is no good and failed to offer a FAPE, the district’s lawyer will throw it back in their faces that the signed the IEP and agreed at the time of signing that the offer was an offer of FAPE. During the IEP meeting, when parents ask, “What does ‘Offer of FAPE’ mean?” the district personnel will say, “Oh, that’s just what we have to call it.” Most parents don’t understand the legal significance of calling the IEP offer an “Offer of FAPE” and that by consenting to that language they’re agreeing that the IEP is appropriate to their children’s needs.

The bigger point is that just because the IEP has been offered, the parents aren’t obligated to accept it. Parents have the right to dispute the appropriateness of the offer, asserting that it fails to offer a FAPE, and demand a more appropriate IEP for their child. If parents are signing consent to a document they’ve not seen, they have no way of knowing if the district’s offer is truly an offer of FAPE. And, as you stated, their consent is absolutely not informed.

The issue you’ve raised really goes to the issue of meaningful parent participation. We just updated our “Meaningful Parent Participation” slogan merchandise earlier today, oddly enough, and our posting about that includes the relevant legal citations pertaining to parent participation in the IEP process, including a link to another blogger’s article that cites a number of precedent-setting cases that make more clear what “meaningful parent participation” really is. Click here to link over to that article to access the legal authorities.

You can’t meaningfully participate if your being given the signature page to a document you’ve not seen or read and are denied the opportunity to give informed consent. I’m curious to know what your state dept of ed had to say when you called. Did they back you up, did they back up the district, or did they plead ignorance?

Anne