Special Education Due Process Changes Back on the Table

Proposed changes to the way parents are expected to file due process complaints when they believe their children aren’t receiving appropriate special education services have upset special education advocates again, just a few months after the last round of proposed changes were shelved by the Alabama State Department of Education (ALSDE).

A petition with more than 2,000 signatures was revised and updated to reflect those changes, and one local attorney believes these changes will create an unnecessary barrier for parents trying to hold school officials accountable for educating their children.

Changes are posted on the ALSDE web site, but are also included here for ease of access.

The ALSDE will hold three public meetings across the state in coming weeks to share the changes and to hear concerns directly from the public.

The first meeting is scheduled for Wednesday, October 14 at Carver High School in Montgomery. All meetings will begin at 4:30 and end at 6:30 p.m. The remaining dates are:

• October 29, Saraland High School, Saraland
• November 4, Cullman High School, Cullman

James Gallini, whose law practice, The Gallini Group, is devoted solely to special education law, credits parents for convincing the ALSDE to set aside the most egregious of the changes proposed last May, but worries that the remaining proposal will have a negative impact on ensuring students receive the special education services they are entitled to and on the relationships among parents and school officials.

He questions why ALSDE officials chose not to hold public meetings in Huntsville and Birmingham, as both areas have highly-engaged groups of special education advocates, speculating that it “was strategic and purposeful.”

The Alabama Disabilities Advocacy Program (ADAP), a federal protection and advocacy agency charged with protecting the rights of people with disabilities, sent notice of the proposed changes and the upcoming meetings to its email list on Friday afternoon.

In the notice, ADAP states the basic premise upon which these changes should be considered:

[The] proposed changes should be analyzed against the purposes of the IDEA [Individual with Disabilities in Education Act, the federal law governing special education in schools]. These purposes are 1) to ensure that all children with disabilities have available to them a free appropriate public education that is 2) individualized to meet their unique needs to prepare them for further education, employment and independent living and 3) to ensure that the due process rights of children with disabilities and their parents are protected. If proposed changes don’t further these purposes, they should not be enacted.

Nancy Anderson, Associate Director and Senior Attorney in the Children’s Division, said she questions, looking at the proposed changes through that lens, whether the proposed changes are in line with the purposes of IDEA.

Anderson devotes much of her time to K-12 special education issues in Alabama schools and said that families contact her about problems in special education far more than any other area in which ADAP works.

Alabama Declared in Need of Assistance by Federal Special Education Officials

The timing of these proposed changes is of serious concern, given that the U.S. Department of Education’s Office of Special Education Programs (OSEP) in June declared Alabama “in need of assistance” in implementing requirements under IDEA for the second year in a row.

Alabama is one of 29 states to be judged in need of assistance. Texas and Washington, D.C. are in need of intervention, and the remaining 20 states met requirements.

The proposed changes, judged as a whole, appear to make it more difficult for parents to officially question whether schools are providing appropriate special education services and accommodations and to hold schools accountable for doing so.

Putting up barriers for parents during a time when federal officials question whether state officials can properly implement special education requirements seems an illogical sequence of events, Gallini said.

Recent monitoring reports available on the ALSDE website indicate school districts all across the state are not in compliance with state and federal special education laws.

For example, one of the most recent reports for an Alabama school district, filed September 30, 2015, showed eleven instances of violations* that, if parents knew of the violation and school officials didn’t correct the problem on their own, could result in the need for parents to file a complaint.

This district’s monitoring report, filed at the end of August, showed basic evaluation procedures weren’t being followed.

Districts across the state continue to violate the same provisions year after year, Anderson said.

Anderson wondered what actions the ALSDE is taking to ensure school officials in all school districts are meeting requirements if they are going to make it harder for parents to hold school officials accountable.

Both Anderson and Gallini expressed concern that most parents of children receiving special education services don’t know the basic rights and protections afforded to children receiving special education services. And although the ALSDE is charged with ensuring parents know those rights, it just isn’t always getting done.

ADAP recently updated their definitive guide to rights and protections, “Special Education: A Right Not a Favor“, but at more than 100 pages, some may have trouble pulling out the information they need to effectively advocate for their child in school.

Achievement Results Are Low

An analysis of the 2013-2014 ACT Aspire results for students in special education showed very low results. More on those results in this article.

It is important to note that there is a wide range of student ability among those children whose test results appear in the special education subgroup reported for federal accountability purposes.

Students could be only mildly affected by their disability, but because they have an Individualized Education Program (IEP), their results are counted in the special education subgroup.

Students who are severely cognitively impacted by their disability typically take an alternate assessment, the results of which are not reported in statewide ACT Aspire results.

Here are the statewide results for students in special education compared with those in general education.

Special education students in 97 of Alabama’s 135 school districts had one or more grades and/or subjects where none of the children in special education were proficient.

And in ten additional districts, no results were reported at all for students in special education because there were fewer than ten special education students in the entire district in each grade tested.

As the chart above shows, barely 2% of Alabama’s 8th graders in special education measured proficient in math, as compared with 31% of students in general education.

Why Are the Changes Needed Now?

When the first round of changes were proposed, Malissa Valdes-Hubert, spokesperson for the ALSDE, said these changes were first considered more than two years ago and were initiated by the Alabama Council of Administrators of Special Education (CASE) who had concerns about the dispute resolution process and specifically, due process complaints.

Valdes-Hubert said one of the reasons changes are needed are that hearings are disruptive and took too much time away from the school day for all involved. “These disruptions can include scheduling conflicts, hiring substitute teachers and related personnel to cover school personnel absent in order to spend countless hours of wait time at a Due Process Hearing. Currently, only a few of the due process hearing participants benefit in this scenario and it is not the school district, parents, and students.”

Given OSEP’s declaration that Alabama needs assistance implementing the requirements of IDEA, and given the abysmal results of the 2014 ACT Aspire, it remains unclear why ALSDE officials believe tightening up the complaint process would be beneficial for children in special education.

Gallini said he has certainly seen an increase in complaints in recent years, but questions whether the mass retirement at the end of 2012 (due to the legislature changing retirement benefits available to education employees) could be to blame for school officials not knowing requirements under the law resulting in an increase in complaints.

Gallini contends that another possible reason is that so few attorneys that work for boards of education actually handle special education cases, naming only five that he sees on a regular basis in special education cases. If there are 180 complaints and only five board attorneys working with a 45-day deadline in which to conduct the hearing, that’s a lot of work for those attorneys, he said.

Proposed Change: Cutting in Half the Time Limit Parents Have to File a Complaint

The biggest change being proposed is to cut the time limit parents have to file an official complaint in half, from two years to one year. This means parents have one year to file an official complaint

IDEA defaulted to a two-year time frame when the IDEA was reauthorized in 2004, though some states that already had a one-year time frame were allowed to keep it.

“Alabama has always had a two-year statute of limitations,” Gallini said. If the ALSDE enacts that change, he expects local attorneys to file an immediate court challenge.

Anderson is concerned that a one-year time frame is too short, because parents don’t always know their rights or what constitutes a violation, adding that it may take quite some time before parents question whether a violation has occurred, and then they must navigate the dispute resolution process either on their own, or find an attorney to help them.

That could take well beyond the one-year time frame.

Gallini is one of less than ten attorneys across Alabama who practice special education law. Those attorneys have had multiple discussions about these changes since the ALSDE’s first round, and are working together to spread the word to parents across the state.

Gallini said he isn’t concerned that the changes will negatively affect his practice, speculating that this change alone might actually push more parents to seek out attorneys earlier in their child’s special education journey, particularly with a time frame for complaints cut in half.

Complaints are currently handled in a way that encourages parents to continue working with school officials to resolve any disputes, he said.

According to Gallini, parents don’t typically learn about problems their children are having in school until the annual IEP team meeting is held. If children are not making academic and behavioral progress with the supports agreed upon the year before, those results aren’t shared until a whole year has passed. Based upon how the lack of progress is framed, parents may be looking at a very short time frame for resolution, and many will likely go ahead and file a formal complaint, called a due process complaint, to preserve their rights to do so.

So if the ALSDE was looking to reduce the number of complaints, it may have the exact opposite effect, Gallini said.

All states are required to report numbers on all sorts of outcomes and processes in special education to the federal government on a yearly basis. According to those reports, the number of complaints has risen  steadily since the 2004-2005 school year.

Other Concerns

The proposed changes not only require parents recognize a violation of IDEA in half the time, but also that they be more specific when filing their complaint, even expected to use language that one typically expects from attorneys, Gallini said. To him, that is simply asking too much.

Parents aren’t trained and educated in special education, and Gallini contends that districts don’t do enough to help parents understand their rights. “We need to bend over backwards for parents (in the dispute resolution process). It’s already inherently unfair,” he added.

Gallini expressed serious concern about the proposal to limit a parent’s right to an independent education evaluation (IEE) for their child.

If parents disagree with a school district’s evaluation for a child’s special education eligibility, parents are entitled to an IEE of their child at public expense. This is similar to a medical “second opinion”.

The proposed change would require parents to be very specific about which part of the district’s evaluation with which they disagree prior to seeking that second opinion. If parents are unable to articulate that, the district could deny paying for it.**

Gallini reiterated that he feels attorneys will be able to get over that hump, but feels this change would make it more difficult for parents who aren’t fully informed about their child’s disability or who don’t have access to an attorney with expertise in special education law.

“I’m not worried about my practice. I’m worried about those parents who have to advocate for their own children without the help of an attorney,” Gallini said.

What’s Next

Parents will have their opportunity to share their concerns and ask questions of ALSDE officials in the three upcoming public meetings.

Those unable to attend can send their written comments to sesaac(at)alsde.edu. Comments must be submitted no later than November 15, 2015.

Any changes to the Alabama Administrative Code, which is where these changes are located, must be approved by the State Board of Education after a public hearing held during a regular board meeting.

No date has been set for the board to consider the changes.

ALSDE officials who could comment on these changes were unavailable for comment prior to the publication of this article. Look for more information, including comments from the ALSDE, after Wednesday’s meeting in Montgomery. 

Where to Find Monitoring Reports

The ALSDE is charged with monitoring Alabama’s school districts for compliance with IDEA. Corrective action plans are issued when noncompliance is detected.

Here is where the most current correction action plans are posted.

In addition to those monitoring reports, school districts’ “performance profiles”, showing how well students are meeting goals and measures prescribed by the federal government, are posted.

NOTES

*The list below is the list of violations of the district mentioned previously. Basic procedural and important provisions of IDEA weren’t followed, such as:

• Each student’s IEP (Individualized Education Plan) does not include a statement of measurable annual goals
• Each student’s IEP is not written to the general education content standards; or Alabama Extended Standards for students with significant cognitive disabilities who are being assessed with the Alabama Alternate Assessment; or Developmental Standards for preschool children with disabilities
• Each student’s IEP does not include a statement of the special education and related services and supplementary aids and services or program modifications or supports for school personnel
• Each student’s IEP does not include an explanation of the extent, if any, to which the student will not participate with nondisabled students in extracurricular and nonacademic activities
• Each student’s IEP does not include a statement of any individual modifications in the administration of the state testing program or why that assessment is not appropriate
• Each student’s IEP does not include a statement of how the student’s progress toward the annual goal will be measured
• Each student’s IEP does not include, beginning with the IEP in effect when the child is 16, and updated annually thereafter, age-appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills; and the transition services needed to assist the child in reaching those goals
• The IEP and/or student’s file does not document the involvement in each IEP meeting of the student, at the age when transition services are discussed, and other times when appropriate
• There is no documentation that a copy and/or access to the IEP is provided to regular/special education teacher(s) and other related service provider(s)
• There is no documentation that each teacher and provider is informed of his/her specific responsibilities relating to implementing the IEP
• There is no documentation that each teacher and provider is informed of the specific accommodations, modifications, and supports that must be provided in accordance with the IEP

**Gallini speculated that limiting a parent’s right to an IEE at a district’s expense might be connected to an important and costly court case tried by local attorneys.

In October 2013, the United States Supreme Court declined to hear a case brought by the Jefferson County Board of Education, which contended that school districts did not have to pay for that IEE. The case began in 2006 when parents had an IEE conducted for their child. The original evaluation cost $1007.50. The parents’ insurance paid a portion of the evaluation, and parents requested the board pay the remainder. (Synopsis of the case is here. A friend-of-the-court, or amicus, brief gives more details here.)

The board refused to pay and fought the decision. Every decision rendered, from the original due process hearing officer to the 11th Circuit Court of Appeals, required the board pay for the IEE. In the end, the board was not only responsible for paying their own board attorney to conduct the battle, but also to pay the legal fees incurred by the parents. No records are readily available to indicate how much that battle cost the Jefferson County taxpayers.