Onus on parents to investigate

Parents who thought the state would alert them if investigators found their children might have been harmed by Darien Schools’ illegal special education practices will not be getting a notice from state officials addressing that issue.

Investigators appear to not be sending parents notices if the schools illegally changed their children’s education plans, according to the state report and an interview with a parent who spoke with state investigators on the matter. The Department of Education recently found numerous violations to the federal Individuals with Disabilities Education Act, which included verification that the district made “substantive changes” to the individualized education plans, or IEPs, of children with disabilities.

While the district has taken unprecedented steps to move forward, including the hiring of a private investigator and the establishment of an informal dispute resolution process, little has been done to address the children who might have fallen behind as a result of the illegal practices.

The parent said state officials did not keep track of individual cases during its investigation, and instead merely noted its findings generally. This means investigators did not keep track of which students might have been harmed.

State officials have not responded to requests for comment. U.S. Department of Education officials have also not responded to numerous requests for comment.

Parent police

In the report, Charlene Russell-Tucker, chief operating officer for the state Department of Education, states that parents will be responsible for bringing forth their concerns to the school district.

“First, a parent who has such concerns may contact his or her building administrator to discuss the concerns and, if appropriate, revise his/her child’s IEP through the allowable amendment process to address those concerns,” the report stated.

This request, however, is merely reiterating a right parents already have under the law, which is to request a planning and placement team meeting, or PPT, at any time to discuss a child’s individualized education plan, or IEP. The PPT is comprised of parents, teachers and other education professionals and meets at least once a year to develop a child’s IEP.

The district is required to provide parents with their children’s most recent IEP documents by Wednesday, Oct. 9, for its review. However, the state is not informing parents if their children’s IEPs were illegally altered. Instead, it is asking “any parent who believes that his/her child’s special education program was impacted by inappropriate guidance provided to district staff, or a substantive change was made to the student’s IEP outside of the PPT/amendment process since July 1, 2012, that parent may request a PPT meeting and has the option of having a PPT facilitator present at the meeting.”

Parents can already request a PPT at any time, so the state’s suggestion to convene a PPT to address concerns reiterates a right already in place for parents. Enforcement of the IDEA is left in the hands of parents to sue districts that could be breaking the law. In no other legal system are the alleged victims asked to be both police and prosecutor for crimes committed against that victim. That is the case with special education law.

The state is, however, requiring the district to provide a PPT facilitator to any parent who feels the need for help during a PPT. According to the state, a PPT facilitator is a person who has knowledge of special education law and has completed state-sponsored PPT facilitation training. Darien is required to develop an informational notice about this process for parents by Friday, Oct. 18.

However, the facilitator is only available for one PPT meeting per student, and the meeting should be scheduled between Oct. 21, 2013 and March 21, 2014.

Through PPT meetings, the state appears to expect the violations they uncovered in their investigation to come out, in which case the PPT team “must consider the need for compensatory services if it is also determined that FAPE for the student was compromised.”

FAPE, or a free and appropriate public education, is the cornerstone of special education service delivery. While no allegations of denial of FAPE can be found in the complaint filed by 25 parents in March, the state addressed the issue explicitly in its final report, noting that “it appears that the district’s overall special education program is designed to provide FAPE to eligible students…”

Steven Wyner, a California attorney who changed practices to focus on special education law when his child was recognized as having a disability 20 years ago, disagreed.

“Any program with a systemic violation of federal law — where the district defended on the basis that it did not do wrong, especially when found to have denied parents the right to full participation in the development of their child’s IEP — cannot be said to be a program designed to provide FAPE,” Wyner told The Darien Times.

Wyner added that if systemic violations have been found, parents have a chance at bringing the issue to federal court. Usually courts require parents to exhaust all possible resolution methods before filing a suit. The exhaustion requirement is waived if systemic violations have occurred, Wyner said.

Not everyone agrees with Wyner’s assessment that FAPE was denied. Kathy Mehfoud, a Virginia lawyer who represents school boards in special education matters, told The Times that the failure to comply with procedures does not automatically mean that there has been a denial of FAPE.

“I did not see in the findings that there was a finding of a denial of FAPE,” Mehfoud said. “There is mention that there may have been but no finding that any one student was denied FAPE.”

Further placing the resolution responsibility on parents, the state notes that the illegal changes to IEPs should be reviewed in the PPT process. Again, the state has not informed any parents if their children’s IEPs were changed illegally, instead requiring parents to determine if this happened.

Since the state also found the district took too long to deliver IEPs to parents, some have expressed worry that by the time the IEPs arrived in parents’ hands, it could be difficult to recall exactly what should be on the IEP.

Wyner noted that the suggestion by the state that “any change that was substantive in nature would not be allowable and should be reviewed and documented by a properly constituted PPT,” appears to be asking parents to agree to the illegal changes.

“Is this suggesting that parents have some obligation to consent to the substantive changes made without their consent?” he said.

State faith

Further confounding critics of the state’s final report, Department of Education officials also approved Darien’s informal resolution process without knowing the details.

“Although specific details of these processes have not been provided by Darien, the [state] accepts this action on the part of the district and expects to review any informational documents developed by the district informing parents of these options,” the report stated.

While the informal dispute resolution process has been heralded as a step in the right direction by school officials, parents and school critics alike, the state’s decision to accept the program with no knowledge of its details is worrisome to attorney Wyner and others who feel the state has asked parents to trust a school district that has broken numerous federal laws.

“I am astonished that the [state] accepts Darien’s proposal even though Darien has not presented any of the ‘specific details of the processes’,” Wyner told The Times. “The parents have to trust that the school district will do the right thing? That seems like an abdication of the state educational agency’s supervisory responsibility for special education.”

But attorney Mehfoud noted the complexities of special education and how difficult navigating through the law can be.

“Special education procedures are complex and numerous and there are unintentional violations by many school districts,” Mehfoud said. “The Darien School District appears committed to addressing all concerns found by [the state] and those additional concerns expressed through the parents.”

District response

Superintendent Steve Falcone sent out a press release the day after the state’s findings were announced, vowing to “hold those whose actions were in violation of the law accountable.”

Deirdre Osypuk, the special education director, was placed on paid leave amid allegations that she ordered the cessation of services to some children with disabilities, and that she oversaw a district-wide effort to restrict and deny special education services. After she was placed on leave, she got a 1.7% raise, as per her contract. No other employees have been placed on leave. The state has since confirmed that these allegations were true, but has not said who was responsible.

Falcone has said that he has been unaware of all the problems that occurred underneath him. Yet he also said that Osypuk reported directly to him, which contradicts information from a former special education director. Falcone also said the memo that was leaked to parents by a teacher, and which was the impetus that unraveled the findings of illegal activity, was “widely distributed,” yet he also said he never knew it existed until the complaint surfaced. This has led to questions about his integrity and the chain of command.

The day after Falcone sent his press release regarding the state findings, Board of Education Chairman Betsy Hagerty-Ross sent a prepared statement to media, wherein she also states that she “will not tolerate systemic violations of the law…”

Both the district administration and the school board have vowed to hold those who broke the law accountable. However, they both defended the district’s new path when the complaint surfaced in March. At that time, Falcone said parents’ allegations were “mischaracterizations” of the special ed program, and Hagerty-Ross echoed her counterpart.

The “administration strongly objects to the mischaracterizations of district practices in the complaint, and both the administration and the Board [of Ed] look forward to any such hearing so that we may set the record straight,” Hagerty-Ross said in March.

Parents have said that they came to the Board of Ed several times with concerns about lawbreaking, but that Hagerty-Ross never responded to their requests for a meeting.

In her March statement, the board chairman also remained confident that “any changes in delivery that are made will not compromise the right of each child with a disability to receive an appropriate program of special education and related services.”

Schools’ attorney Tom Mooney earlier said he didn’t think there was any evidence to suggest children were harmed by the district’s illegal program. The state findings, however, tell a different tale, as do test scores among children with disabilities, which showed their progress stagnated last year, when in years past they improved.

Hagerty-Ross also earlier discussed the processes in place for parents who disagree with the district’s education plan, and touted the district’s lack of due process hearings, insinuating that parents were content with special education in Darien.

“Significantly, while Darien has on occasion had such hearings, at the present time the Darien Public Schools are not involved in any pending due process hearings,” she said.

On the date she sent that message, the state Department of Education had received 17 requests for some form of conflict resolution from Darien, according to the Bureau of Special Education. This number nearly equaled the amount of conflict resolutions sought from parents from the previous two years combined — 18 — and with three months left in the school year.

Of the 17 requests, 10 were procedural complaints, the most serious. The total for the previous two years was one procedural complaint, according to state data.

In their recent public statements, Hagerty-Ross and Falcone appear committed to fixing the wrongs and moving forward, and cite the hiring of attorney Sue Gamm, consultant Theresa DeFrancis, and hearing officer Mary Gelfman as proof that the district is on the right path.

“The Darien Board of Education puts the education and well-being of our children above all and we will not be satisfied until every child in Darien is receiving a free and appropriate public education,” Hagerty-Ross said.

Katrina O’Connor and Courtney Darby, co-chairmen of the Special Education Advisory Committee, emphasized the need for parents of children with special needs to pay close attention to what’s happening.

“It is critical that parents, staff and administrators read both state reports very carefully,” they said in an email. “Parents should understand both the procedures set in place by the district and the corrective actions handed down by the state and if appropriate, take full advantage of them.”

Originally published in The Darien Times.

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