Tag Archives: facts

Confronting “Alternative Facts” in Special Education

Recent events at the national level have exposed the mainstream public to the over-the-top misrepresentations that some public servants make. I’ve been witnessing the unbelievable spin jobs carried out by such individuals within the public education system for over 25 years, so none of this is new to me.

In truth, I’m glad the rest of the American public finally now understands what I’ve been dealing with this whole time. It used to be that when I’d explain what I do for a living and the behaviors I’d encounter on the part of some public education agency personnel and their contractors, people would think I was melodramatically making it all up. Honestly, as creative as I may be, I couldn’t make up stuff like that if I wanted to; no sane person’s imagination is that rich. Now, I can point to the White House saying, “It’s like that,” and people finally get it.

What the current administration has done for us is provide us with a new vocabulary used by its staffs who are utterly divorced from the truth, and that language helps us navigate their communicative intent. It’s language that they, themselves, have most usefully described as “alternative facts.” For the purpose of this post and future posts in which references to “alternative facts” are made, I am operationally defining “alternative facts” as untruths that are preferred by their speakers to the truth.

The pervasiveness of “alternative facts” in special education is so widespread and diverse that no single post could possibly capture our analyses thus far of their use. Because these governmental abuses of authority are woven so deeply into the fabric of public education, including special education, it is worthy of significant discourse.

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Podcast: Get Your Facts Straight When Filing Complaints

On September 20, 2009, we originally published “Get Your Facts Straight When Filing Complaints”. Throughout this school year, KPS4Parents is recording many of our past text-only articles as podcasts so that busy parents, educators, and interested taxpayers can download them and listen to them at their convenience.

As always, feel free to comment on our content. We appreciate the input of our readers and listeners to bring you the information you seek. You can either comment below or email us at info@kps4parents.org.

Click here to download the podcast “Get Your Facts Straight When Filing Complaints”.

Get Your Facts Straight When Filing Complaints

As much as I personally hate filing complaints against public agencies, sometimes I find it necessary in order to achieve an appropriate outcome for a student with special needs.  It’s not the task of putting together a complaint that bothers me; after over 18 years of advocating for students with special needs, I’ve gotten pretty good at assembling the necessary evidence and figuring out what allegations to assert.  What I hate is what makes complaints necessary – somebody is doing something that deprives a child, to that child’s detriment, of an educational right and that just makes my blood boil.

In special education, there are several types of complaints that can be filed:  due process complaints, compliance complaints, and 504 complaints for the most part. Regardless of what type of complaint needs to be filed, you absolutely, positively must have your facts straight and your evidence together to support the facts of the case.

For the purpose of illustrating my point in this blog posting, I’m going to focus on the filing of compliance complaints with your state’s Department of Education.? Compliance complaints are filed when your local education agency (“LEA”) has violated the regulations and failed to follow the proper procedures, whether those are state or federal regulations.? Compliance complaints do not address issues involving substantive harm; those are the kinds of issues that get addressed by due process complaints.

To help distinguish between the two types of complaints, let’s say that a child’s parents disagreed with his school district’s recent special education assessment results and requested an independent educational evaluation (“IEE”) at public expense but the school district denied the request and took no further action.? Procedurally, this is a violation because the only way an LEA can legally refuse to fund an IEE is to prove through a due process hearing that the assessment with which the parents disagreed was competently performed and sufficient under the requirements of the regulations.

Therefore, in order to deny the parents’ request for the IEE at public expense, the school district would have had to file for due process to assert the appropriateness of its assessment.? All things being equal, it’s usually far less costly for the LEA to simply fund the IEE than to sue the parents to dispute it.

However, let’s say in this example that not only did the district refuse to fund the IEE and fail to file for due process, but that the child continued to fail to receive educational benefit because he had not been competently assessed in all areas of suspected disability by the district and the parents had been right to disagree with its assessment and ask for an IEE.? Now, the child has been substantively denied a FAPE because the IEP team had been without sufficient information about his needs to craft an IEP that was reasonably calculated to render educational benefit.? Further, his parents were denied meaningful participation in the IEP process by being deprived of necessary assessment data and the opportunity to get it via an IEE, which can also be found to result in a denial of a FAPE.

This is the kind of thing that results in a due process filing because the question at this point is:? How much educational benefit did the child fail to receive and what type of compensatory education is he due to make up for this substantive harm? It’s no longer just a matter of whether the district failed to follow the proper procedures; now it’s a matter of what harm resulted from its failure to follow the proper procedures.

Sometimes when parents and advocates are trying to prevent litigation, the best way they can do that is with a well formulated compliance complaint.? If you can get it sustained that the law was broken, you’ve eliminated 50% of the examination a hearing officer would otherwise have to make if the matter were to go to hearing.

A compliance investigator only has to determine whether or not the law was broken.? But a procedural violation that results in substantive harm that is taken straight to due process requires the hearing officer to first determine whether a procedural violation took place and then whether it resulted in substantive harm.

If you have compliance complaint findings that establish for the record that the law was, in fact, broken then the only thing the hearing officer has to determine is whether or not substantive harm resulted from the unlawful conduct.? That the law was broken is a foregone conclusion and presumed to be fact.

This is why, in most cases where I’ve had to file compliance complaints, things quickly de-escalate once the results come back.? The involved LEA knows that any findings against it will end up in evidence and they will have a lot of explaining to do if the case goes to hearing.? The best way to prevent litigation is to prepare for it.

But this sword cuts both ways.? If you file a compliance complaint and the LEA is found to have operated within the law, a copy of your compliance complaint and the findings of compliance will likely be introduced into evidence in due process by the LEA to demonstrate that it hasn’t broken the law and that you are a crackpot filing unfounded complaints, thereby suggesting that your due process complaint is also unfounded and you shouldn’t be taken seriously by the hearing officer.

Due process is not the place to argue that a complaint was wrongly determined by the state’s Department of Education.? There is a separate appeal process for that and a special education hearing officer lacks the authority to overturn a compliance complaint decision or re-try the issue.? The results of a compliance complaint are taken at face value in due process.? Therefore, it’s critically important that you do it right when you initially file so that you are less likely to encounter unnecessary problems later on and that means starting out with having your facts straight and evidence in order.

As with any type of complaint process, compliance complaints are supposed to involve an examination of the facts and a comparison of those facts against the procedural requirements established by the regulations.? Facts are not he-said/she-said opposing points of view.? Facts are things that are borne out by the evidence.

It is in an effort to preserve the facts for the record that we audio record every IEP meeting we attend on behalf of the parents, do everything we can with public agencies in writing (even if that means memorializing our telephone conversations in emails or letters), and request a copy of each student’s records on behalf of his/her parents when we begin a new case.? A comprehensive records review is a necessary part of each case we do.? By arranging all of the documents in chronological order, we can go step-by-step through the story as told by the record and then reconcile that against what the parents told us when they first came to us.

If we become aware of any violations, our first step is usually to document them in a records review report to the parents.? In the very least, we’ll list them out and have a meeting with the parents to talk about them.? From there, our next step as lay advocates is usually to write a letter on behalf of the parents to their LEA outlining the violations and specifying requested remedies, bearing in mind that the remedies we can ask for are limited by what is reasonably achievable were we to file complaints.

Most times, LEAs respond to a succinctly organized and worded demand letter in a constructive manner.? While we’d like to think that this is mostly due to an administrator’s well-intended desire to do the right thing, it has not escaped our attention that it is rather frequently the case that administrators just don’t want to get sued.? They can see how the problems we’ve outlined would not reflect well on the LEA in a compliance complaint or at hearing and the remedies we’re asking for are entirely reasonable.

On the rare occasion that some high-ranking person within the LEA loses his/her mind and decides to treat the situation as a power struggle rather than an attempt to resolve a dispute, our documents speak for themselves and things usually come together eventually.? That’s because we’ve gotten our facts straight and don’t assert things that cannot be borne out by the evidence.

So, in our example above, where the parents disagreed with their district’s assessment and requested an IEE at public expense, which the district subsequently denied and took no further action, we would first go to the district and point out the error of their ways, asking them to please fund the IEE.? If the district dug in its heels further rather than do the right thing, we would then file a compliance complaint alleging a failure to follow the proper procedures when a parent requests an IEE at public expense.

To demonstrate the facts of the case, we would attach as exhibits the following items:

  • The parents’ letter indicating their disagreement with the district’s assessment and requesting the IEE at public expense
  • The district’s letter denying the IEE
  • Our follow up letter pointing out that the district has to file for due process if it’s going to deny the IEE and asking that it reconsider and fund the IEE.

We would be sure enough time had passed after our demand letter for the district to file for due process, then let the record show that it didn’t before filing the complaint.? The more likely outcome, however, is that the district would cough up an assessment plan for the IEE.

You need to be aware of your state’s timelines for filing compliance complaints.? You can contact your state’s Department of Education compliance complaint unit for more information about the complaint timelines.? (In California, it’s one year from the date you knew or should have known about the violation – essentially, one year from the date the violation occurred.)

An example of what not to do might look like this: A parent verbally disagrees with the LEA’s assessment during an IEP meeting and requests an IEE at public expense.? Her disagreement and request are not recorded in the IEP meeting notes.? The LEA’s special education administrator tells her at the IEP meeting that someone will get back to her on her IEE request.? She submits nothing in writing to the LEA expressing her disagreement and weeks pass with no response from the LEA regarding her verbal request for the IEE that was made during the IEP meeting.

Finally, she decides to file a compliance complaint.? She writes a letter to her state Department of Education alleging failure to follow proper procedures in response to a parent request for an IEE at public expense.? She explains in her complaint that she made a request for an IEE after disagreeing with the District’s assessment at the IEP meeting.? An investigation gets opened and the parent gets a phone call from the investigator.? The call might go something like this:

Investigator: “Mrs. Jones, when did you inform the district that you disagreed with its assessment?”

Mrs. Jones: “At the IEP meeting of August 30, 2009.”

Investigator: “I’m looking at a copy of the August 30, 2009 IEP and can’t find any reference in this document to any disagrement on your part to the assessment or a request for an IEE.? Can you tell me what page it’s on?”

Mrs. Jones: “It’s not on any page.? They didn’t write it down.”

Investigator: “Did you subsequently submit anything in writing expressing your disagreement and requesting an IEE?”

Mrs. Jones: “I didn’t think I had to.? We talked about it at the meeting and the administrator told me someone would get back to me about it.”

Investigator: “Did you audio record the IEP meeting?”

Mrs. Jones: “No.”

Investigator: “Mrs. Jones, are you aware that the District claims that you never disagreed with its assessment or asked for an IEE?”

Mrs. Jones: “What?!!!!!”

A few weeks later Mrs. Jones gets a letter finding the district in compliance, explaining that there is no evidence of wrong-doing.

Another example of what not to do would be: A parent is speaking with her child’s teacher at the end of the school day as she picks him up from school.? Unbeknownst to this parent, the teacher has grown to dislike the principal over some unrelated issue.? The teacher will also gossip with whoever will listen, including the parent.? The parent is largely indifferent to the information the teacher discloses to her, but she wants the keep things cool between herself and the teacher for the sake of her child, so she indulges her.

On this particular day, the teacher tells the parent, “I probably shouldn’t be telling you this, but we had a meeting the other day and the principal told us that she doesn’t believe in full inclusion. She’s planning on placing your son in a special day class at another campus on the other side of town as soon as she can.? I just thought you should know.”? The parent understandably freaks out.

Knowing that placement decisions can’t be made outside of the IEP process, the parent panics and files a compliance complaint the next day alleging that the principal has failed to follow the proper procedures to change her son’s placement.? As it turns out, there is nothing in the record to suggest that the principal had any intentions to try to change the child’s placement.? When asked about it, the principal has no idea what is going on and claims she never said any such thing.

When the teacher is asked about it, she says that the parent must have misunderstood her.? She? tells the investigator that she did tell the parent about a staff training she attended on full inclusion and the types of students who can be fully included, but she never said anything about this parent’s child specifically.? “Besides,” she tells the investigator, “the principal can’t change any special education student’s placement.? That’s an IEP team decision.”

Now the parent looks like a fool and of course the allegation isn’t sustained.? The parent had a knee-jerk reaction and failed to confirm the facts.

The proper course of action would have been for the parent to request a copy of her son’s student records and write a letter to the principal asking if the principal has any concerns regarding her son’s placement that would make the principal think that his placement needed to be changed.? The principal would have been compelled to make the record in response and write back with a formal response.? Upon receiving the records and the principal’s response, the parent would have then been in a position to determine whether or not there was even a need to file a complaint, much less any evidence to support the allegation.

I hope you can see from this how important it is to have your facts straight and your evidence in order before you go off accusing people of anything.? Even if your allegations are true, you have to be able to prove them or they may as well not be.