Tag Archives: legal

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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Your Clients’ “Best Interests” – Why Students’ & LEAs’ Interests Can’t Possibly Conflict

Today’s article is targeted to attorneys who represent Local Education Agencies (“LEAs”). It’s particularly targeted to those attorneys who behave as though what is in their clients’ best interests are somehow at odds with the best interests of the special education students their clients are being paid to educate and that special education is an “us versus them” proposition.

First I want to acknowledge that life is hard for everyone. We’re all facing our own challenges.  Life is unique for every single person who walks this Earth and the way it is hard for one person is different from the way it hard for another.  We all owe each other compassion and understanding.

But, no one – and I mean No One – gets into Heaven by depriving children with disabilities the services they desperately need.  I don’t care what your baggage is.  Even if you go to church every Sunday and beg forgiveness, if you turn around and walk into an IEP meeting or due process hearing the next day doing everything you can to screw over a handicapped child and his family, you’re going to burn, burn, burn in Hell.  Forgiveness can only be given when your prayers for it are legitimate and your repentance is true.  The Almighty knows when you’re being insincere, even if the average hearing officer doesn’t.

It’s not exactly a secret that almost every single law firm that represents public schools does so for profit.  And, they get paid win or lose when cases go to hearing.  School districts are not represented by law firms on contingency.  They are represented under expensive annual contracts with additional hourly rates for time put in above and beyond what the annual contract includes. As much as school districts may desire to avoid litigation, the harsh reality is that their law firms make more money when cases go bad and litigation rears its ugly head. For that reason, many attorneys who represent LEAs have reputations as “billing machines,” stirring the pot and causing problems so they can bill for additional time to get their clients back out of hot water.  And, most special education directors are so clueless regarding their legal obligations that they don’t even realize they’re being taken for a ride.

KPS4Parents represented two brothers with autism a few years ago, both of whom had been placed at the same non-public school (“NPS”) by their LEA.  The NPS was a joke.  It was on the verge of being shut down by the California Department of Education (“CDE”) for not having proper special education teaching staff and otherwise being a hokey outfit.  Both the boys, although three years apart in age and nothing alike in terms of how each of them manifested their autism, were receiving the same curriculum.  Neither of their IEPs were actually being followed.  They were being warehoused all day, as were all the other students at the school.

KPS4Parents was hired by the parents and I was assigned as the advocate on both their cases.  In the course of working with the District to straighten things out, I requested on the parents’ behalf additional assessments, copies of their records, and amendments to their IEPs based on what little data we had to work off of at the time.  The District had proposed some new assessments prior to my requests and those assessments were pending at the time that my requests for additional assessments were made.

Long story short, the District blew the 60-day timeline for completing the assessments it had initially proposed, it blew the 15-day timeline for providing assessment plans for the assessments I’d requested on their behalf, and it failed to provide their student records within 5 days, as required by California law. The latter issue is legally interesting, and relevant to today’s article, because it was the District’s lawyer who caused the provision of the records to take over a month.

While the assessments being delayed were potentially more substantively harmful than the delay in providing the student records as requested, the timeline delays with respect to the assessments were caused by people within the District not having their act together.  No one was trying to do harm or screw around.  That isn’t to say that the violations didn’t result in substantive harm – they did.  But, the substantive harm from the assessment timeline violations were the fault of the District, not it’s attorney.

The records were delayed by the District’s attorney who wrote letters arguing that the authorizations signed by the parents giving KPS4Parents permission to request records on their behalf were suddenly invalid.  The standard KPS4Parents authorization can only be terminated in writing and has no expiration date.  It saves us the trouble of having to re-do them from one school year to the next when cases span across more than one school year.  Neither parent had submitted a written withdrawal of authorization and both parents were livid when they got the letter from the District’s lawyer indicating that the District was not going to give me their sons’ records as requested.

This went back and forth for over a month before I finally got the records.  By that time, the other timeline violations had also occurred. It had become apparent that the attorney representing the District had the special education director wrapped around her little finger and was manipulating the relationship for her own financial gain.

I filed compliance complaints alleging failures to abide by the three different timelines on behalf of both boys.  I offered to enter into a local resolution with the District if it would promise to create policies and procedures that would prevent timeline violations from occurring again in the future.  The CDE investigator informed me that the District, through their attorney, declined my offer of local resolution and had chosen, instead, to let the investigations proceed. In the end, CDE sustained six – count ’em, SIX – violations of the law against the District and ordered it to clean up its act.

Shortly thereafter, I sent a Public Records Act (“PRA”) request to the district’s governing board asking for copies of the attorney’s bill for the time she put in on the boys’ cases.  I wanted to know how much the taxpaying public had paid for this woman to get the District cited for six violations of the law.  Not counting her annual contract fee of $50,000, the District paid her about $600 to get it cited six times over – that’s about $100 per violation.  That may not seem like a lot of money in the grand scheme of things, but it was taxpayer dollars that were spent on this.  And this was just for these two boys.

And, what did that money buy the District?  A big, fat black eye.

The attorney was sacked before the end of the school year.  The special education director was asked to leave shortly thereafter, once it had become apparent that she had either gone along with the attorney’s misdeeds or was too clueless to realize that she had been played.  Frankly, the two of them had been up to no good for years. I think this situation was just the straw that finally broke the camel’s back.

My point in retelling this story is to illustrate what self-serving representation causes. It causes harm. Not just black eyes to school districts, but substantive harm to children with special needs.

The only legitimate outcome that appropriate representation should pursue is the assurance that the LEA being represented is abiding by the law and meeting its obligations.  There is no “us versus them” when LEAs are doing what they are supposed to be doing.  What is in the best interest of the LEA is its fulfillment of its mandated duties.

LEAs exist for only one reason – to educate children.  This includes children with special needs.  And, LEAs are not expected to reinvent the wheel.  Congress created the IDEA to give them a framework by which the education of children with special needs can be provided.  It is the obligation of attorneys representing LEAs to help the LEAs comply with these regulations and achieve appropriate student outcomes, not try to figure out ways for LEAs to weasel out of their obligations or otherwise exploit bad situations for the attorneys’ financial gain (much less at taxpayer expense).

If you are looking at a dispute from the perspective that your clients’ best interests are somehow something other than their students’ best interests, something with your way of thinking is terribly, terribly wrong.  What is in your clients’ best interest is to render a FAPE.  That’s what the law requires them to do.  The delivery of appropriate educations to their students is the reason why your clients exist and the only reason they have taxpayer dollars with which to pay you.

Properly representing your LEA clients should involve you making sure that their students eligible for special education and 504 Plans are getting the FAPEs to which they are entitled.  That’s legitimately protecting your client from getting into trouble. You shouldn’t be doing anything other than that.

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Legal Loophole in the IEP Process

We had a case that began last school year and carried forward into this school year in which a legally interesting, but damnably frustrating, situation arose that exposed a legal loophole in the special education process. There’s no way to give a short and easy descriptive name, so I just going to describe the circumstances to you and discuss the implications.

The situation involved a school district that has made a practice, thanks to the micro-managerial style of the district’s special education director, to fail to provide a finished copy of an IEP to the parents at the end of each IEP meeting. This is a district-wide policy issue, not something that only happened to our client. As a policy, the director of special education attends the IEP meetings and brings his secretary who takes the IEP meeting notes (which he refers to as “minutes”) on an AlphaSmart.

For those of you not in the know, an AlphaSmart is a portable keyboard/word processor that can be connected to a computer to print out what has been typed on it. They are often used in special education to give to students who keyboard better than they hand write to take notes in class, produce written work, etc. They’re small and portable but they don’t have all the functionality of a laptop computer. While they were cutting edge back in the day, these days, there’s nothing that says “I’m in special ed!” like taking an AlphaSmart to class, so most kids won’t have anything to do with them, leaving a surplus in the special ed department in those districts that bought them.

This school district I’m talking about – let’s call it L District – has the secretary type the IEP meeting notes as the IEP meeting is taking place, which is actually more efficient than having someone who has to also participate in the meeting doing double duty by taking the notes as well (participating and taking notes at the same time is very, very challenging and usually the quality of the person’s participation and the notes are sacrificed to a certain extent) using an AlphaSmart. The problem is that L District does not provide the means to print out the meeting notes at the end of the IEP meeting from the AlphaSmart.

Instead, the AlphaSmart is taken back to the district offices where the notes are eventually printed out days, weeks, or even months later. And, before the notes are provided to the parents, they are “reviewed” by the district’s director of special education. More to the point, they are edited by the district’s director of special education, as is the rest of the IEP. Because the notes aren’t available at the end of the IEP meeting, the whole IEP document is held up. Or, at least that’s the excuse that is given by the district. The reality is that the director of special education takes it upon himself to go through every IEP document and edit it after the IEP team has already determined what it will say. The edited document is what the parents ultimately receive days, weeks, or months later.

To make matters worse, the parents have often already signed consent to the IEPs on the signature pages that were presented to them during their IEP meetings based on what was discussed, which the special education director subsequently changes when he edits the IEPs. Because the parents were never given a copy of what they thought they were consenting to immediately following the IEP meeting, they have nothing to compare against the special ed director’s edits. On top of that, half the time, what they get is the IEP less the meeting notes, which are provided some time later. Even if they were in agreement with the parts of the IEP they got, the meeting notes are provided after they sign and their signatures are construed by the district to apply to the meeting notes, even though the notes were not available at the time they were asked to sign their consent and thus, were not actually consented to.

This isn’t clear from the record. If you request student records from this school district, what you’ll get are the whole IEPs put together well after the fact and there is no documentation to reflect that they were done piecemeal and that consent was sought to only portions of the documents though applied to the entire document once the outstanding components were actually produced. In reality, portions of the documents may not be consented-to, but you have no way of knowing that just by looking at them. Unless you have dated written correspondence from the parents that say, “Hey! When are you going to give me the IEP” and “Hey! You only gave me part of the document!” you have no way to prove the procedural violations.

More important than just the violations of the proper procedure is the impediment these procedural violations create with respect to meaningful parent participation in the IEP process, which is a right guaranteed to parents under federal law and part of the definition of what amounts to a FAPE. That’s the bigger concern for me.

There are no federal regulations that spell out how long a school district has after an IEP meeting has been held to produce the IEP document for the parents to consider and to which they can give consent. The law only requires that the IEP be implemented as soon as possible once the parents have consented to it.

Some parents know enough to not sign agreement to anything the day of the meeting and to only sign that they were in attendance. They then take a copy of the IEP home so they can go over it and think about it before signing their consent. I advise that parents do this pretty much all the time unless we’ve been through several IEP meetings and the current one is the last in a series that finally results in a clean document worth signing. At that point, the document isn’t new to us; it’s been through several revisions and we’ve finally gotten all the bugs worked out. If it is a new IEP, I definitely advise parents not to sign right then or to only indicate agreement to the no-brainer parts with which they have no problems (like eligibility, for example).

But, what happens when the district doesn’t make a copy of the IEP immediately available? Sometimes, the IEP meeting doesn’t get done until 5pm (or later) and all the printer and copier equipment has been shut down for the day and the school personnel need to get home. Sometimes a piece of equipment is broken and the document is going to have to be printed and copied at another location. These things happen. I have no problem with a district faxing or scanning/emailing me the IEP the next day or even the day after that.

What I have a problem with is waiting for over a month for the IEP document to be forthcoming while the child fails to receive the services the IEP describes and to which the parents would have consented had they been provided with the IEP more timely, particularly when those services are desperately needed and the child is suffering harm in the absence of them. Or, when the staff work off of “verbal agreement” to what they remember the IEP team discussing but without a document that explains exactly what they’re supposed to be doing such that they’re all doing what they think the IEP probably says rather than what it actually says, undermining everything with their own individual subjective interpretations of what is supposed to be going on.

There is no such thing as “verbal agreement” in special education. Nothing can be implemented without the parents’ written consent. Consent cannot be given if the parents have no IEP to sign. A FAPE is denied when the education rendered fails to comport with the IEP. If what the staff is doing is what they think is on the IEP that hasn’t been signed by the parents yet, and it isn’t identically described in the student’s previous IEP (which is the one still in force until the new one is signed), then the staff is rendering an education that fails to comport with the student’s current, in-force IEP.

A FAPE is denied on the basis of a failure to allow meaningful parent participation in the IEP process, as well, because the parents cannot meaningfully participate if they are prevented from giving consent to the new IEP. And, what if they don’t agree with the new IEP or at least parts of it. How can they express that disagreement and work with the district to see the dispute resolved if they have no document to work from.

Parents have a right to a copy of their child’s IEP. The regulations are clear on that. However, this usually is taken to mean a copy of the signed IEP after consent has been given. It doesn’t specifically state that, so that leaves some leeway to file a compliance complaint on the basis that the parents have been denied a copy of the IEP, but there is no timeline by which it has to be provided other than the general rules that apply to the general provision of copies of student records to parents upon written request. That’s usually the regulations you turn to when you want a copy of a kid’s entire file. You shouldn’t have to file a records request as a parent just to get a copy of the most recent IEP offer for your consideration and consent.

The district has an obligation to offer and render a FAPE. It can’t do that without parental consent to an appropriate IEP offer. Parental consent can’t be obtained without giving the parents the IEP to sign. It seems so logical to me, yet, procedurally, L District continues to sit on IEPs for weeks to months and provide them to parents piecemeal, construing consent to parts of the document to apply to other parts provided to the parents well after they have already signed.

Ideally, districts would have no more than two or three business days after the IEP meeting to get an IEP copy to parents for their consideration. But, we don’t have any laws that require that – at least not at the federal level. Some states may have regulations to that effect, but I’m in California – one of, if not the most regulated states on the planet – and we don’t have anything like that. Generally speaking, the other states have less stringent requirements than California, so it wouldn’t surprise me at all to learn that none of the other states have timelines specific to providing IEPs to parents for their consideration and signature following the IEP meeting. Please comment if there are such regulations that you’re aware of in your state.

I can’t fathom why a school district would want to exploit a legal loophole like this. There’s no good faith reason to take so long to get full, intact IEP copies as they were written during the IEP meetings to parents following the IEP meetings. I’m pressed to come up with a bad faith reason that makes any sense. In the instance of L District, it’s the inadvertent outcome of a controlling administrator and his deliberate use of a tool for taking the notes that prevents the immediate production of intact IEP copies at the end of the meetings to buy himself time to edit the IEP documents after the meetings have already been held without the input of the rest of the IEP team.

As it stands, the only real way to contend with this is due process, which we pursued on our client’s behalf in this district. But, the outcome we achieved only impacts this student. It’s still business as usual for every other special ed student in the district and that bothers me a lot. Were there regulations that specified a timeline for this situation, a simple compliance compliant would take care of it. Unfortunately, under the circumstances, all we have left in our tool bag for this type of situation is litigation.

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