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Special Education Due Process Changes Rise Again
Those special education due process changes have arisen again and are back on the table for Round Three, though the most controversial change has been scrapped.
The Alabama State Department of Education (ALSDE) had proposed cutting the time period within which parents could file complaints in half, from two years to one year. The statute of limitations remains two years in the current proposal.
Even with that provision being removed from the changes, “The current proposal is absolutely worse than the one in the fall,” attorney James Gallini said about the recent changes. The most unfair provisions that were in the first round last spring and removed in the fall have been put back into the proposal, according to Gallini.
Those changes have to do with how witnesses and testimony are gathered and prepared for a hearing in front of a hearing officer. “Those changes deny a parent the right to compel a witness to testify. You cannot do that. The entire process is so that testimony can be taken, and both sides can be heard.”
The ALSDE first proposed changes in spring of 2015, but parents and advocates pushed back, causing the changes to be shelved.
A new round of changes came out last fall, but the changes were once again shelved after massive pushback from parents and advocates at three public hearings across the state.
ALSDE officials have given various reasons for the need for the changes, citing a survey from the Alabama Council for Administrators in Special Education (ALA-CASE) showing attorneys’ fees were costing schools a lot of money.
That survey was ultimately found to have been incomplete and only intended to be used as an indicator, not as evidence of the need for the changes according to an official with ALA-CASE. As such, ALA-CASE did not publish the survey results that the ALSDE ultimately used as evidence of the cost of due process complaints.
Gallini believes he knows the real reason for the proposed changes. “What this really is about is that they are losing these [due process hearing] cases,” he said. “Their win-loss record hasn’t been very good over the five years. The schools aren’t doing very well.”
“Due process” refers to the dispute resolution process parents use to resolve concerns about their child’s special education services and evaluations.
There are multiple ways parents can resolve complaints, and as a final resort, parents can ask for a due process hearing. The hearing process is typically a costly approach, and requires a lot of time to gather evidence and present the case to a hearing officer. The hearing officer is hired and paid by the ALSDE.
Gallini continued, “With 85,000 kids that they’re covering, why they’re complaining and spending so much time, money and energy on changing our rights, why they’re complaining about 184 cases instead of raising the bar [for student achievement]…I mean, really?”
Latest “child count” numbers from October 2015 show that 84,280 students, or 11.3% of Alabama’s students, have been identified with a disability, up from 82,355 in October 2014.
The latest data filed with the U.S. Department of Education showed that of the 184 due process complaints filed during the 2013-2014 school year, six hearings were completed. 44 complaints were still pending at the end of the year, and 134 complaints had been resolved, dismissed or withdrawn without a hearing.
A different way of looking at the number of complaints filed is a “rate per thousand”, calculated by the National Center on Dispute Resolution in Special Education. Complaints were filed at a rate of 22.8 per thousand students receiving special education in Alabama, compared with 27.3 per thousand across the country.
The rate of completed hearings was 0.5 per thousand students in Alabama versus 4.3 per thousand students across the country.
The changes were posted online on March 14, 2016, with no fanfare nor public announcement.
An email from Special Education Services Director Crystal Richardson went out to 79 recipients, 31 of whom work for the Alabama State Department of Education, the same day the changes were posted with this message:
SES has posted the latest proposed changes to the AAC- Special Education Services, Chapter 290-8-9. We are on hold and will resume our approval process after a new State Superintendent of Education is named. Therefore, no public hearings are scheduled at this time. SES will continue to receive public comment during this time and will seek input from SEAP in June. Public comments may be sent to sesaac@alsde.edu. Thank you. CR
Given the controversial nature of the proposed changes, it’s unclear why public notice didn’t go out through regular channels. We are waiting for a response from the ALSDE regarding protocol for posting these types of notices.
Gallini first learned of the changes when we posted them on the Alabama School Connection Facebook page on April 2.
Gallini is clearly frustrated by the various proposals and inconsistent communication from ALSDE officials. “I don’t like the gamesmanship displayed by state department officials over the past year,” Gallini said. “Where’s the public participation?”
Crystal Richardson, Director of Special Education Services, said the changes in the most recent proposal were made by staff in the Office of General Counsel and the Special Education Services divisions at the ALSDE after the small-group meeting was held in January. Stakeholders attending the meeting were invited by Richardson to participate.
Here’s the history of the changes:
- April 2015: Initial changes proposed
- May 2015: Changes shelved
- October 2015: Second round of changes proposed
- Changes to fact-gathering process were removed
- October & November 2015: Public hearings held
- January 2016: Change to statute of limitations removed
- State department officials tell SEAP about statute of limitations being removed
- Small stakeholder meeting held in Birmingham among invitees
- March 2016: Third round of changes posted to ALSDE web site
During the first two rounds, attorneys specializing in special education law released analyses of the proposed changes, but no analysis has been released about these latest changes.
The Special Education Advisory Panel (SEAP) will meet on Wednesday, June 15, though the changes are not on the agenda.
You can request to participate in the SEAP meeting via the internet if you are unable to attend in person: “A request for access information in order to listen to the proceedings via computer, and if desired, to offer any comments during the scheduled public comment time period of 1-2 p.m. should be made by e-mail to Ms. Susan Goldthwaite (sgoldthwaite@alsde.edu)”.
The SEAP typically meets twice each year. Here is more information on SEAP from June 2014 meeting notes.
