Legality of special ed forms questioned

Darien’s special education policies continue to face heavy scrutiny from parents, lawyers and others, who have said the district could be failing to inform parents of their rights when some parents of children with disabilities seek to place their children in private school.

When a parent decides to place their child in another school, a public school district is required to ensure that child is actually attending that school. However, Darien appears to be using what some have called an “inappropriate” form that is given to some parents who seek to place their children in another school [scroll to bottom of page to view form].

At least one parent was given these forms as she sought to place her child in a private school, according to sources familiar with the situation. She was told to sign the forms as part of her child’s withdrawal from the public system. One form requires the parent to essentially agree that the private school is not necessarily an “appropriate program” for their child, and that Darien’s program should not be construed as inappropriate.

The word “appropriate” is used in the legal definition of a “free and appropriate public education,” which is the standard used to determine if a special education program meets a child’s needs.

The form, titled “Parental Release Form for School Personnel to Provide Records to Private Elementary Schools,” has a date stamp of Sept. 4, 2009. Steve Falcone, superintendent of schools, and Tom Mooney, school counsel with Shipman & Goodwin, have neither confirmed nor denied the use of this form.

Further examination shows that the form tells parents that their child’s “cumulative records… will only be released to other school [sic] upon receipt of this document.”

This should not be the case, according to Gerri Fleming, a former high school history teacher turned special education advocate.

“Technically, no form is needed to transfer records contained in the cumulative file of any student,” Fleming told The Darien Times. “This is a ruse to get parents to sign this form stating that the education offered at the public school was appropriate.”

Parents who are sent these forms are told they “need” to sign them before the child can attend the new school, some parents said.

The Family Educational Rights and Protection Act, or FERPA, gives parents control over release of certain student records, mostly ones that are more private in nature, such as medical history. However, cumulative data, such as report cards, absences and standardized test scores can be released without parent consent.

This makes the Darien form suspect, Fleming said.

“I would direct — and have directed — clients not to fill out such forms,” Fleming said.

The form is also directed only at parents of elementary-aged children. This, some parents said, further points to the culpability of Judith Pandolfo, assistant superintendent for elementary education, as spear-heading the alleged “campaign” to cut parents out of decision-making and reduce overall services to children with disabilities.

Kathleen Casparino, a former special education teacher who later became an advocate, also noted this form was unorthodox.

“The top of the form said elementary schools which seems odd,” she said. “Why would this form be specific to the elementary level?”

But what’s equally as troublesome is that the records consent form could be used by the schools against parents of students with special needs, should they decide to bring a due process complaint against the schools, according to Andrew Feinstein, a Mystic lawyer who has assisted 25 parents in their complaint against the schools with the state Department of Education.

“I have never seen a form like this from any other district,” Feinstein told The Times. “I would never let a client of mine sign it.”

Theresa Defrancis, a former state special education investigator who has been hired by the schools as a consultant, disagreed with Feinstein’s assessment.

“I don’t read it as a waiver of rights the parent has to pursue due process,” Defrancis said. “I understand attorney Feinstein sees this as problematic. I would disagree.”

Defrancis added that it’s “not uncommon” for districts to “change forms and practice based on interpretations of the law.”

The records consent form would likely not work in favor of the district or parents in a due process hearing, as it neither affirms nor discredits the public schools’ program for a child as appropriate, according to Defrancis.

Defrancis noted that she is interested in learning what precipitated the creation of this form, and to whom the district gives it and under what criteria.

“Other than the use of the word ‘appropriate’ in the body of the form, there’s no other language that would indicate its use is restricted to special education,” she said.

When asked for clarification on how, when and why the schools use this specific form, Falcone said he “won’t be able to get to this for a while,” and cited the start of school and upcoming meetings as keeping him and others busy.

To avoid sending a Freedom of Information request — which the Board of Ed has complained is costing the district money, even as it spends thousands on public relations help — The Darien Times asked attorney Mooney for clarification on the form since Falcone indicated he was busy.

“I will not be responding to you,” Mooney stated in an email.

The Times then requested via the Freedom of Information Act the information it sought to shed light on this document, and the withdrawal form [see below section].

Not all parents of children with disabilities received these forms, either, according to sources familiar with the situation. Some parents speculated that the district only gives them to parents who do not have legal or other types of representation.

Feinstein maintained that both the consent to release records form and the withdrawal form are problematic, and worried that Defrancis’s opinion could compromise her Darien work, as she is charged with developing and implementing special education professional training.

“If Terri Defrancis did indeed slough these forms off as typical, I have real concerns about the quality of her training to Darien staff,” Feinstein said.

At the time of Feinstein’s comment, Defrancis had only seen the records consent form, and not the withdrawal form. After seeing the withdrawal form, she did not say anything appeared problematic with it, either, although she again expressed interest in knowing the origins of this document.

Withdrawal

The other form, titled “Withdrawal From School,” asks parents for the name of their child, school identification number, grade and withdrawal date. It also asks if the child has an individualized education plan, or IEP, which is the legal term for the unique program that each child in special education receives [scroll to bottom of this page to view the form].

It also asks where the child is moving, the reason for the withdrawal, and the school name. The form is less than half a page in length.

Feinstein said the withdrawal form is also inappropriate as it fails to inform parents of their legal rights, should they withdraw their child from public school.

“To throw a withdrawal form in front of a parent fails to inform the parent that they can seek reimbursement from the district where the district has failed to provide an appropriate program and where the out-of-district placement is appropriate,” Feinstein said.

Advocate Fleming agreed.

“I am not an attorney, but by filling out the withdrawal form, it is my belief that you are waiving your child’s right to a public education or reimbursement of private school should it be shown that the school denied your child a free and appropriate public education,” she said. “To withdraw a child has serious ramifications, and parents may not understand the repercussions of doing so.”

Steve Wyner, a California-based special education attorney, said he had never seen forms like those being used by Darien, either. Faith Filiault, a special education advocate based in Wilton, said these forms appear to be the result of the district proactively defending itself because of past problems.

Both Filiault and Fleming agreed that parents should not sign these forms, and should instead file a FERPA request for their children’s records. Sample FERPA requests can be found online at various websites.

Wilton Public Schools has a withdrawal form that essentially combines certain elements of Darien’s records consent and withdrawal forms. However, it says nothing of a parent admitting that Wilton’s public school program is appropriate or not. The word “appropriate” appears nowhere on the form.

Several Darien parents have pointed to Wilton’s special education system as having a higher standard than Darien, as evident in its user-friendly parent information systems and strict record-keeping.

New Canaan has an online withdrawal form for parents to fill out. It also says nothing about the relative appropriateness of New Canaan’s special education program. Both Wilton and New Canaan ask if the child is in special education.

Attorney Defrancis noted that these clauses are generally used for two purposes. One, to “put the district on notice” that the child was in special education, which would then prompt the district to “check to see if the parents have been informed of their right to pursue due process…” Second, it provides the district with the necessary information it needs to ensure the child is still going to school, which, if the child is not, could be a problem of truancy.

As per state law, parents are required to give a district 10 days written notice before they withdraw their child for public school, if the parent wants the district to pay for the private placement.

The Times asked Ridgefield, Weston and Greenwich public schools for information on their withdrawal processes, but did not get a response as of press time.

Cost worries

Concerns over the cost of private school tuition has sparked much debate around town. Some have said that many parents have been using lawyers to get excessive services for their disabled children, and placing children in private school and sending the schools the bill. Some have said this happens even if the public program was appropriate.

Liz Mao, Board of Finance chairman, earlier told The Darien Times that she wanted the Board of Ed to have “all the lawyer money” they wanted to fight the complaint, as there had been problems with parents suing the district and the district becoming weary of litigation and opting instead to provide parents with whatever services they wanted.

“I don’t think it’s right when people are trying to take advantage of the system and get services they’re not entitled to,” Mao said in late July. “In no way do I mean that people who are entitled to services shouldn’t get the services.”

She also said when she supported the schools by offering them an unlimited legal budget when the complaint first surfaced, she did it under the assumption that the schools were right.

“What we’ve had here is an unusual circumstance,” Mao said, referring to the state’s findings that Darien Schools broke state and federal law.

Feinstein argued that this notion of needy parents wanting excessive services for their kids is propaganda used by districts to discredit parents’ real concerns.

“The reason people outplace their kids is because Darien has cut costs and provides a lousy education for kids with disabilities,” he said in July. “If Darien invested in providing an appropriate education for kids with disabilities then the number of outplacements would drop and the cost to the district will drop.”

“It’s penny-wise, pound foolish,” he added.

The Darien Times asked the federal Office of Special Education Programs and the state Department of Education for information related to Darien’s forms, but did not receive a response as of press time.

UPDATE:  At the Special Education Advisory Committee meeting on Wednesday, Aug. 28, after The Darien Times went to press, Steve Falcone, superintendent of schools, told the committee that the district will no longer be using the forms mentioned in this article until further notice.

Originally published in The Darien Times.

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