Controversial Special Education Change Scrapped by Alabama State Department of Education

The Alabama State Department of Education (ALSDE) has scrapped the most controversial of their proposed special education due process changes which would have lowered the statute of limitations for filing a due process complaint from two years to one. As a result, parents will continue to have two years from the time the problem occurred to file a complaint related to their child’s special education.

Crediting feedback received since the changes were announced in October, Director of Special Education Crystal Richardson said, “We really did listen”.

Richardson made the announcement during the Special Education Advisory Panel (SEAP) meeting held Wednesday in Montgomery.

Other proposed changes to due process are still on the table, though the change to the statute of limitations was the one about which parents, advocates and attorneys expressed the most concern.

Once those other changes are finalized, Richardson said the public hearing process will start over again and the SEAP will have a chance to weigh in before sending them to the state board of education for approval.

The Input Process ‘Worked This Time’

Dustin Chandler, whose child receives special education services, attended the public hearing held in Montgomery last October and also participated in a smaller meeting with advocates, parents, and school and state officials held a couple of weeks ago in Birmingham.

In an e-mailed statement, Chandler said “This was absolutely the right decision and a great day for those who receive special education services in Alabama. This shows once again all kids have a voice and credit should be given to parent and advocates who stepped up to make sure those voices were heard.”

Chandler also credited Richardson and her staff for taking the time to listen and to allow all who are affected to participate in a collaborative input process that he said “worked this time”. He hopes discussions continue, not just about the proposed changes but about other challenges facing those providing and receiving special education.

Deborah Mattison, a Birmingham attorney who has represented parents in special education disputes for more than two decades, said she was pleased with the way the ALSDE continued to solicit feedback even after the public hearings were held.

Mattison, whose expertise Richardson said was “vital” during the feedback period, also attended the Birmingham meeting a few weeks ago. Mattison said that meeting allowed all parties to have a great dialogue and work through the most troubling of the proposed changes.

“We had a wonderful discussion and we learned a lot from each other’s perspective,” Mattison said, acknowledging that “the state department really was interested in input”.

“I think we did it the right way, taking it to the public” and listening to feedback, Richardson said.

Birmingham attorney James Gallini also represents parents in special education disputes and has been vocal about his concerns that parents would be placed at a disadvantage in advocating for their children with disabilities if all of the proposed changes were enacted.

“This is a big deal and great news for parents and teachers in Alabama,” Gallini said in an e-mailed statement. “When this dialogue started a year ago, it was unclear whether the parent voices would be heard and considered. I’m proud of the families across this state that joined us in this fight. I’m thankful to Crystal [Richardson] for listening to all the opinions. As we move forward together, I’m hopeful that parents and their attorneys will improve their advocacy skills, work collaboratively with the good and effective special education coordinators and make internal changes to respond to some legitimate concerns raised by the state and local [school districts]. I believe we are at a place where we can have that kind of discussion and bring closure to [the due process] issue so we can move on to raising tangible outcomes for our kids.”

The Alabama School Connection has published a number of articles about outcomes for students with disabilities and has just begun a year-long series taking a close look at special education in Alabama.

Changes to the Changes that Were Changed

The ALSDE first proposed changes to due process in April 2015, but those changes were postponed in May after parents and advocates pushed back.

“Due process” as it is used in special education is a term that typically refers to the dispute resolution process when parents and school officials disagree about a component of special education for a child.

Last October, a new set of changes were proposed, and three public hearings were held across the state to allow in-person feedback. Parents, advocates, attorneys, special education teachers and administrators spoke at the meeting, sometimes in a heated manner. School officials supported the proposed changes while parents and disability advocacy groups opposed them.

Initially, ALSDE officials pointed to the cost of attorneys’ fees as the reason to propose the changes, saying those dollars would be better spent on children rather than attorneys.

Parents fired back, describing how, had they not hired an attorney to represent them, their children wouldn’t have gotten the education required under the Individuals with Disabilities in Education Act (IDEA). IDEA is the federal law governing special education for children.

Many parents cried as they told the stories of how their children had been placed in self-contained classrooms and their attorney successfully fought to allow their children to go to class with their non-disabled classmates.

Attorney Fees – Are They Really a Problem? We Still Don’t Know

During the public hearings, ALSDE officials used numbers from a survey conducted by the Alabama Council for Administrators in Special Education (ALA-CASE) to illustrate the cost of attorneys’ fees.

Further scrutiny of those survey results revealed inconsistencies in the data.

In a recent interview about the survey, ALA-CASE President Khristie Goodwin said those survey results were never finalized by ALA-CASE.

Goodwin said that ALA-CASE initiated the survey in 2014 to gauge whether districts were in fact paying a lot of money for attorneys, both those representing parents and those representing boards of education. Goodwin called the survey a “screener” and said it was difficult to gather that information from school districts because those costs aren’t necessarily tracked similarly from one district to another, if at all.

A data request for legal fees reported by Alabama school districts to the ALSDE showed that only 55 of Alabama’s school districts have used specific accounting codes to report legal fees related to students with disabilities during any fiscal year from 2010 to 2015. Only nine districts reported costs for each of those five years.

As such, the true cost of attorneys’ fees related to special education in Alabama is unknown at this time.

Some Concerns about the Changes Remain

Though the most controversial change is off the table, Mattison is still concerned about proposed changes to the Independent Educational Evaluation (IEE) process.

IDEA allows parents who disagree with a school district’s special education evaluation of their child to have an IEE at the school district’s expense. According to Mattison, the proposed changes require parents to identify the particular evaluation tool they disagree with in order to request an IEE.

Lawyers won’t have trouble pointing to a particular evaluation or assessment tool, but parents don’t have the expertise to know the names of all of the tests and exactly which test they disagree with, Mattison said.

Parents may know that their child isn’t progressing, but “the state’s language would impose another hoop for parents to jump through and would be a barrier for parents to get an IEE” because they might not be able to point to a specific assessment tool, she said. Federal law states that “the public agency may not require the parent to provide an explanation” for why they believe an IEE is needed.

The right to an IEE “is one of the most important parental safeguards [in special education]. The assessment of a child is critical to writing an IEP (Individualized Education Program),” according to Mattison. The IEP defines how and what school district personnel will do to ensure a child meets academic and other goals. Without a proper and accurate evaluation, the pathway to achieve those goals cannot be written.

“Once a parent requests an IEE, the school district can either agree to pay for it, or they can request due process to defend the adequacy of the school district’s evaluation. But they cannot unreasonably delay taking one of those steps,” she said.

“Because it is such an important right, I think it would be subject to a legal challenge,” Mattison explained.

What Happens Next

The ALSDE will draft a new set of changes based on the input and feedback they’ve received. Public hearings will be held across the state as they were previously, though no specific dates nor cities have been specified.

The SEAP will be consulted for input. Once all input is gathered, if there are no further substantive changes, the final proposal will be presented to the state board of education at a work session, and depending upon the state board’s feedback, the notice of intent to adopt changes to the Alabama Administrative Code (where all rules and regulations are housed) will be announced to the public.

The final step to adopt the changes is to hold a public hearing at a state board of education meeting after which the state board of education will vote the changes up or down.

Richardson said the earliest possible adoption of any changes would be September or October of this year.

Here are the tweets from the SEAP meeting today.