Lawyer urges state intervention into special ed

A new twist to the ever-complicated special education saga has come to light after some parents claimed that no substantive action has taken place to fix the variety of problems in Darien.

Parents are asking state officials to take over special education unless Darien can provide evidence that it has been compliant with state-mandated mitigation measures, according to a recent complaint filed by attorney Andrew Feinstein.

“Darien has done virtually nothing to remediate the illegality revealed by the state and attorney [Sue] Gamm and has preserved in its policy of cutting parents out of the deliberative process,” Feinstein stated in a letter to the state Department of Education dated Tuesday, April 15.

“The failure of Darien to comply with Ms. Gamm’s recommendations for immediate action is a serious breach of the district’s legal obligations and has been extremely harmful to a number of students with disabilities,” he continued. “It is high time for the state Department of Education to step in.”

Lynne Pierson, interim superintendent, said that she was “perplexed” by Feinstein’s allegations and that it “seems to be without merit and based on inaccurate facts.”

“Obviously we will provide the [state] with prompt responses to each allegation with supporting evidence and will continue our efforts to resolve all issues,” Pierson told The Darien Times in an email.

Feinstein has represented the 25 parents who filed a complaint in March 2013, making allegations that were later substantiated that Darien’s special education program was riddled with illegal activity. A two-part state investigation and a $196,000 independent probe both found more than two-dozen systemic problems, ranging from an unbalanced decision-making approach that cut-out parents to a complete lack of data and even possible fraud.

Darien has spent nearly $1 million cleaning up special education. It hired a number of people to get the job done: renowned administrator John Verre to restructure the program; a former special ed teacher, Lynne Pierson, to serve as interim superintendent; former state special ed attorney, Theresa DeFrancis, to train staff; and another former state official, Mary Gelfman, to act as an informal mediator between parents and staff. Additionally, the Board of Education is slated to hire six new people to act as student service facilitators at each school to help the district maintain legal compliance.

But some have argued that all these efforts have been nothing more than an elaborate dog-and-pony show to appease parents and have done nothing to solve the systemic problems that continue to persist in the public schools.

New allegations

Attorney DeFrancis was retained soon after the initial complaint was filed, but she has not trained anyone since Gamm delivered her final report in November, Feinstein noted. A review of DeFrancis’s invoices from December through February substantiate this claim. She submitted no invoices for her work in November, according to school records.

However, superintendent Pierson noted that DeFrancis is slated to deliver a district-wide training session on Monday, April 21, and that this program “has been scheduled for weeks.”

DeFrancis has also been part of a work group that developed Darien’s revamped extended school year, or ESY, practices. This group’s members were chosen using a process that was never divulged to parents, and parents have not been told the names of all members. Verre has not clarified this process or named the members in any public meeting, including during his delivery of the new ESY practice on April 9.

“Many parents report that, despite the efforts of Mr. Verre, their children continue to be offered inappropriate programs, their opinions are discounted… and that the school staff arrives with their recommendation predetermined,” Feinstein wrote. “Parents report that the use of facilitators has not been effective.”

Predetermination is forbidden by the Individuals with Disabilities Education Act, and it was one of many problems in Darien that Gamm and the state uncovered. Leon Rosenblatt, an attorney who represented the now-resigned special education director, Deirdre Osypuk, said that predetermination was taking place between parents’ lawyers and school counsel for years before Osypuk took over. Under Osypuk, Gamm and the state found that Rosenblatt’s description of the situation was now happening in reverse, and that staff was making decisions behind closed doors instead of lawyers from each side.

While Verre has identified a number of children who were harmed by last year’s practices, a comprehensive audit to determine the exact number of children affected has not been completed. It is now more than a year since the complaint was filed.

Gamm also suggested Darien develop a standard operating procedures manual for special education. Verre formed another work group for this practice, but its members have also remained undisclosed.

“Attorney Gamm specifically said that development of the manual should be collaborative process,” Feinstein said. “It has not been.”

Robin Pavia, former special education director, earlier told The Darien Times that she had developed a manual but that Judith Pandolfo, assistant superintendent, prevented it from being implemented. Those close to the situation claim that Pandolfo and Pavia had separate visions for special education in town — Pandolfo wanted to rein in spending, and Pavia was interested in legal compliance.

When the district hired Osypuk to run special education, staff members engaged in a systematic plan to reduce, restrict and refuse services to children with disabilities, and stifle parent involvement, according to the investigations. This led to many respected school employees leaving Darien, fearing the district’s new direction was illegal.

Pavia claimed that Pandolfo has been the driving force of these problems all along. Pandolfo is still employed with Darien Schools, despite her direct involvement in programming that was specifically cited by Gamm has being strewn with problems.

Gamm found problems with the district’s program that is used to provide additional help to children who are falling behind in class, called SRBI. Pandolfo was directly involved in SRBI implementation and program development, and Gamm learned that most staff members and parents were unclear about SRBI practices and procedures.

Feinstein pointed out that no manual for SRBI has been created, as per Gamm’s recommendations. Additionally, no manual has been created addressing the district’s responsibilities under Section 504 of the Rehabilitation Act — another of Gamm’s recommendations that has not been implemented, according to Feinstein.

“Just recently, one parent was presented with a 504 form containing both improper guidance and Dr. Osypuk’s name as the 504 administrator for the district,” Feinstein wrote.

Under Osypuk, the state and Gamm reported that parents were waiting months to get their children’s individualized education plans from the district when state law requires parents get the IEP within five days. Feinstein said parents are still not getting timely IEPs.

Osypuk has said that when she took over as director, she was expected to take control of rising cost and demanding parents who bullied the school district into getting unnecessary services for their children. The Board of Ed has since distanced itself from Osypuk’s claims, saying that she acted without the board’s knowledge.

An examination of emails by this newspaper showed that that boards of finance and education were happy with Osypuk’s performance, even as parents had brought their concerns of illegal activity to the Board of Education months before they filed the complaint. An unusually high number of due process requests had also been filed during Osypuk’s tenure, but the school board said it was unaware of the special ed problems until the complaint surfaced, despite being aware of rising due process cases.

The special education crisis has involved the abrupt resignation of former Superintendent Steve Falcone, along with the resignations of Osypuk, Liz Wesolowski, assistant director of special education, and literacy coordinator Antoinette Fornshell. Falcone, Wesolowski and Fornshell have each taken six-figure jobs in other school districts.

Audit

The district is also in the middle of a forensic audit into its reimbursement applications with the state Department of Education. Districts are eligible for getting paid for any special education expenses that exceed 4.5-times the per-pupil cost in that district. However, Gamm found that Darien included names of ex-employees on reimbursement applications, which could mean the district was applying for money to pay for services it never provided.

The auditors, CohnReznick, are still examining records, but earlier reported to the Board of Finance that Darien’s reimbursement process needed an overhaul. The district’s finance department has since revamped its processes, according to finance Director Mike Feeney.

Gamm noted that some children’s IEPs included directives to provide up to a certain number of hours of services, which is illegal, since these plans are supposed to be as specific as possible. Parents told The Darien Times that the district would either not provide the service, or provide a minimum number of hours, then submit for reimbursements for the maximum number of hours.

“There is substantial evidence that Darien filed inflated excess cost statements with the state and received reimbursement for services that were never provided,” Feinstein said.

The finance board set aside $30,000 for the audit into excess cost reimbursements. CohnReznick bid $15,000 for the job, but later said the audit would take more time than initially estimated. It’s unclear when this audit will be finalized.

“The burden really rests on the state Department of the Education to closely audit excess cost statements to ensure that such padding… is caught and that the money Darien was improperly paid be recovered,” Feinstein said.

Communication

Problems with communication have at times overwhelmed the district, despite Darien taxpayers paying more than $50,000 to McDowell Jewett Communications, a public relations firm, to help the district manage public perception of the special education crisis.

Feinstein claimed these problems have persisted, especially with the Board of Education. At a recent special education subcommittee meeting, parents told The Darien Times that board Vice-Chairman Heather Shea, the committee chairman, denied parents the right to ask questions at the meeting. Parents noted the irony of this, since the meeting was specifically targeted to improve communication and parent engagement.

“Ironically, at a meeting devoted to the laudable goal of encouraging communication, the audience was told that they would not be recognized,” wrote parents Kathryn Doran, Debbie Ice, Vickie Riccardo and Kit Savage.

In an email, Shea disagreed with this characterization of the meeting.

“I was merely trying to complete the necessary board dialogue without interruption,” Shea said.

Interim superintendent Pierson suggested the committee take questions and answer at a later date. In an interview, Pierson said it’s uncommon for the audience to be involved in committee meetings, but suggested it was appropriate in this instance because of the context of the meeting.

Feinstein argued that the Board of Ed remains unresponsive to inquiries.

“Parents who submit questions in writing received no acknowledgment or response,” Feinstein said.

The Board of Education recently set up a public comment period at two points during its public meeting. But many still claim the board remains uninterested in engaging with parents in meaningful discussion.

Betsy Hagerty-Ross, Board of Ed chairman, twice made public comments that appeared to conflict with the Freedom of Information Act and/or the First Amendment of the U.S. Constitution, which forbids public bodies from limiting free speech. In one case, Hagerty-Ross told parents they could not talk about their children at a public meeting. The district’s lawyers determined this statement “did in fact limit free speech rights,” Hagerty-Ross said.

The chairman claimed her statement was “inherited [from] previous board chairpersons,” although an examination of board minutes going back to 2010 did not reveal a similar statement limiting free speech.

During the public hearing on the school budget this year, Jane Pelletier, a member of the Special Education Parent Advisory Committee, or SEPAC, asked the school board if she “was allowed to make a comment.” Hagerty-Ross told her that the public hearing was meant for questions only, despite previous speakers all making comments. Pelletier then sat down. Seconds later, Hagerty-Ross told her to submit her comments to the board in writing.

Seven SEPAC members have recently resigned from their positions on the committee, including Katrina O’Connor, who was a former co-chairman. Feinstein said people are leaving SEPAC because the Board of Ed refuses to work with them.

The “Board of Education has refused to cooperate with the… Special Education Parent Advisory Committee, leading to the resignation of most of the members,” Feinstein said.

O’Connor could not be immediately reached for comment. The district is currently on spring break.

In an effort to help the community understand the status of special education in town, The Darien Times has reached out to all school board members and several school employees to see if they would be interested in holding a panel discussion. The Times sent its first email on March 18, and a follow-up email was sent on March 25. No formal response has been made by Hagerty-Ross.

The Times also noted it was open for ideas to make the panel inclusive, but has not received any feedback.

Hagerty-Ross could not be immediately reached for comment. Kelly Donnelly, a spokesman for the state Department of Education, told The Times she would try to have a comment by Wednesday morning. Allan Taylor, chairman of the state Board of Education, also could not be immediately reached.

Originally published in The Darien Times.

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