How California plans to discourage expensive particular training disputes | Information
The looming spate of legal disputes over special education following the pandemic could be averted – or at least minimized – by a new initiative in California that encourages parents and schools to resolve disputes before going to court.
The state budget, signed by Governor Gavin Newsom earlier this month, provides $ 100 million to resolve special education conflicts between parents and school districts that escalated during distance learning.
The money will be used for public outreach activities such as brochures, meetings, and presentations to help parents and school staff understand the rights outlined in the Disability Education Act, the federal law that obliges counties to train students of all abilities . The aim is to improve communication and build trust between parents and school so that conflicts can be resolved more quickly and easily.
None of the money can be used for legal fees.
“I had tears of joy when the governor signed it. We worked so hard for it, ”said Veronica Coates, director of the local special education planning area in Tehama County, who helped draft the legislation. “We won’t escape all arguments, but that means we can devote more resources to helping children instead of paying lawyers.”
In addition, the state allocated $ 450 million for additional tutoring, therapy, and other services that students with special needs missed during distance learning. It also funded the first steps in a system similar to that used in other states to help parents attend special events with the assistance of neutral moderators. The aim is for parents to better understand the special education process and needs of their children.
Many students in special education fell behind in distance learning because so many services for disabled students – such as speech or physiotherapy – could hardly be provided virtually. Federal law allows parents to sue a school district if they believe their children are not receiving benefits to which they are entitled in their individualized education program or IEP.
Special school lawsuits can be costly for school districts. The cost of providing special services may be relatively small – say, a few thousand dollars – but if the county loses the case, it often owes the parents their legal fees, which can exceed $ 100,000. The district also has to pay its own lawyers, although these costs are usually lower. In some cases, a judge orders the districts to pay for expensive services such as boarding school for students with severe disabilities.
Schools in California have so far paid more than $ 5.4 million in legal fees for Covid-related special school disputes, Coates said, adding that the number is likely far higher as only a quarter of counties responded to a survey on the matter have. Less than half of that sum – $ 2.3 million – went into providing services to students in these disputes, she said.
Disputes usually focus on the number of hours of additional service a student may need. For example, a district might say that a student is entitled to two hours of speech therapy per week, but a parent might want eight. If the parties are unable to reach a compromise, both sides have the option of requesting a hearing from the state administration office. The department hires a mediator to help the parties resolve the matter and if that fails, an administrative judge will hear the case.
California has, on average, far more disputes over special education than most other states. According to the Consortium for Appropriate Dispute Resolution in Special Education, in 2018-19, requests from parents for mediation in California accounted for nearly half of the statewide requests. The number of mediation requests in California was four times higher than the national average. The number of cases in California rose 84 percent from 2006-07 to 2016-17, costing schools millions, according to the Legislative Analyst’s Office.
Last year, the number of cases filed with the Office of Administrative Hearing fell by as much as 16 percent, according to the ministry, although that number could rise this fall as schools are busy assessing and evaluating students. In 2020-21, when most schools were closed due to Covid-19, the Administrative Hearing Office received 3,908 cases, 87 of which could not be resolved through mediation and ended up in court. Last year, the agency received 4,650 cases and held 91 hearings.
Many of the post-pandemic cases focus on “compensatory education” – additional services that help students meet the benchmarks in their IEPs. Compensatory education can be one-to-one tuition, summer or afternoon programs, additional therapy, or other specialized support.
Matthew Tamel, a Berkeley attorney who represents school districts, said his volume of special education cases has not increased since the pandemic, but “cases are more intense and difficult to resolve.” They often focus on what services a student needs to catch up after campus closings. For example, a parent might want 400 hours of speech therapy for their child, while the district believes the actual time lost is closer to 100 hours.
Government funding to resolve these disputes in court is a welcome development that will hopefully lead to smoother negotiations and outcomes that are mutually appropriate and beneficial to the students, Tamel said.
“When schools first closed it was a very difficult time. Everyone thought it would only be a couple of weeks, and in some counties it was a year and a half. Not everything was perfect when schools first closed “, he said. “Most families understand that. … This fund will hopefully help the students get the services they need to make up for what they have missed in 2020 without going to court.”
However, some say that the state’s promotion of extrajudicial dispute resolution benefits the counties, not the parents. Without hiring lawyers or professional lawyers, parents could be at a disadvantage in negotiating with districts about the services they believe their children need. Lower-income parents are particularly at risk as legal fees, which can cost as much as $ 400 an hour, can only be reimbursed through a lawsuit, said Jim Peters, a Newport Beach attorney who helps parents with disputes over special education.
“I support the idea of alternative dispute resolution in general, but in this case it’s insincere,” said Peters, who organized a class action lawsuit against the state for special education last year. “The money is not spent on the child’s needs, but on what parents can afford to hire lawyers.”
Angelica Ruiz, a San Bernardino County parent whose 12-year-old son Arthur has moderate to severe autism, said she would never have won additional services for her son if she hadn’t had a professional like Peters to stand up for her in the name of her son.
While distance learning, Arthur suffered from anxiety and behavioral disorders as the pandemic progressed. He often refused to take online courses. He started beating himself, his personal hygiene deteriorated and he suffered from severe insomnia, Ruiz said.
Peters helped her son get additional therapies and other services, she said. It didn’t solve everything, but it made a huge difference to Arthur, she said.
“Sitting in the same room with all of these people from school can be intimidating,” she said, describing her meetings with her son’s teachers, therapists and principals. “Most parents are not trained for it, we don’t always know what we are entitled to or what we should ask. … Parents shouldn’t have to file a (lawsuit) just to get their children’s services. We shouldn’t have to argue about it. “
But resolving conflicts like Ruiz’s is exactly what the new state fund will do, said Coates, the special education director for Tehama County and Anjanette Pelletier, special education director for San Mateo County. By minimizing the role of attorneys and attorneys, parents of any income should have access to fair and free dispute resolution. And disputes are settled faster, so students can get services faster, they said.
Pelletier and Coates began work on the legislation a year ago when they noticed a sharp surge in litigation in their districts related to special schools during the campus closure. Not only did the lawsuits prevent districts from providing services to students, but they also created suspicion and antagonism between families and school staff, they said.
“Schools were in a bind,” Coates said. “This was born out of a need to help our students get services faster and improve relationships with families.”
Another problem is the ongoing shortage of special education teachers, made worse by the pandemic, Coates and Pelletier said. Special educators are already facing high levels of stress trying to help students during Covid. they don’t need the added stress of litigation, they said.
Working with Rep. Jim Frazier, D-Fairfield and others, the two helped draft the legislation and walked them through the budget process. Ideally, the $ 100 million public outreach would benefit not only families but school administrations as well, they said.
“This is the dream that administrators are learning to improve communication with all families,” Pelletier said. “We’re not going to resolve all disputes, but hopefully we can do what is best for the children and distribute resources more fairly.”
Editor’s Note: Story by Carolyn Jones of EdSource, courtesy of the Bay City News Service. To view the story in its original format, visit the EdSource website.