How California plans to deter costly special education disputes

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Credit: Andrew Reed / EdSource

Governor Gavin Newsom speaks at Ruby Bridges Elementary School in Alameda during a press conference in March 2021.

The threatened deluge of post-pandemic special education litigation can be avoided – or at least minimized – by a new initiative in California encouraging parents and schools to resolve disputes before going to court.

The state budget, signed by Governor Gavin Newsom on Friday, sets aside $ 100 million to resolve special education disputes between parents and school districts, which have escalated during distance learning.

The money will be used for outreach activities, such as brochures, meetings and presentations, to help parents and school staff understand the rights set out in the Disability Education Act, the federal law that requires districts to educate students of all abilities. The aim is to improve communication and build trust between parents and schools, so that conflicts can be resolved quickly and easily.

None of the money can go to legal fees.

“I had tears of joy when the governor signed it. We worked so hard to make this happen, ”said Veronica Coates, area manager of the Tehama County Local Special Education Plan, which helped develop the legislation. “We won’t escape all disputes, but it means we can devote more resources to helping children, not paying lawyers. ”

In addition, the state set aside $ 450 million for tutoring, therapy and other services that students with special needs missed during distance learning. It also funded the early stages of a system similar to that used by other states to help parents gain support from neutral facilitators at special education meetings. The aim is to enable parents to better understand the special education process and the needs of their children.

Many special education students fell behind in distance learning because so many services for students with disabilities – such as speech or physical therapy – were almost impossible to provide virtually. Under federal law, parents can sue a school district if they believe their children are not receiving the services they are entitled to as part of their Individualized Education Program, or IEP.

Special education 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 district loses the case, it often owes parents for their attorney fees, which can exceed $ 100,000. The district must also pay its own lawyers, although these costs are generally lower. In some cases, a judge orders districts to pay for expensive services such as boarding school for students with serious problems.

California schools have so far paid more than $ 5.4 million in attorney fees for special education litigation related to Covid, Coates said, adding that the number is likely much higher because only a quarter of the districts responded to a survey on the subject. Less than half of that total – $ 2.3 million – went to providing student services in these conflicts, she said.

Disputes usually revolve around the number of additional hours of service a student might need. A district might say that a student is entitled to two hours per week of speech therapy, for example, but a parent might want eight. If the parties cannot compromise, each party has the option of requesting a hearing with the state’s Administrative Hearings Office. The department appoints a mediator to help the parties resolve the case, and if that fails, an administrative judge will hear the case.

California has, on average, many more disputes over special education than most other states. In 2018-19, parental mediation requests in California accounted for nearly half of requests nationwide, according to the Consortium for the Appropriate Resolution of Special Education Disputes. California’s mediation request rate was four times the national averagee. The number of cases in California jumped 84% from 2006-07 to 2016-17, according to the Office of the Legislative Analyst, costing schools millions.

Last year, the number of cases filed with the Office of Administrative Hearings actually declined by 16%, according to the department, although that number may rise this fall as schools are caught up in assessments and student assessments. . In 2020-2021, when most schools were closed due to Covid-19, the Office of Administrative Hearings received 3,908 cases, 87 of which could not be resolved through mediation and ended up in court. . The previous year, the office received 4,650 cases and held 91 hearings.

Many post-pandemic cases center on “compensatory education” – additional services to help students catch up to their IEP’s benchmarks. Compensatory education can mean one-on-one tutoring, summer or after-school programs, additional therapy, or other specialized assistance.

Matthew Tamel, a Berkeley lawyer who represents school districts, has so far said his volume of special education cases has not increased since the pandemic, but “cases are more intense, more difficult to resolve” . They often focus on the services a student needs to catch up after campus closes. A parent may want 400 hours of speech therapy for their child, for example, when the district estimates the actual estimate of lost time is closer to 100 hours.

State funding to help resolve these disputes before they go to court is a welcome development that will hopefully lead to more harmonious negotiations and results that are reasonable for both parties and beneficial to the public. students, Tamel said.

“When the schools first closed, it was a very difficult time. Everyone thought it would only be a few weeks, and it turned into a year and a half in some neighborhoods. Everything was not perfect when the schools closed, ”he said. “Most families understand that. … This fund will hopefully help students get the services they need to make up for what was missed in 2020 without having to go to court.

But some say the state’s promotion of alternative dispute resolution favors districts, not parents. Without hiring professional lawyers or advocates, parents could be at a disadvantage when negotiating with districts about the services they think their children need. Low-income parents are particularly vulnerable because the only way to get reimbursed for attorney fees, which can cost up to $ 400 an hour, is to go to court, said Jim Peters, a lawyer. of Newport Beach which helps parents with special education disputes.

“I support the idea in general of alternative dispute resolution, but in this case, it’s spurious,” said Peters, who helped organize a special education class action lawsuit against the state. last year. “The money will not be distributed based on a child’s needs, it will be distributed based on parents who can afford to hire lawyers.”

Angelica Ruiz, a relative from San Bernardino County whose 12-year-old son Arthur has moderate to severe autism, said she would never have obtained additional services for her son if she hadn’t had a professional like Peters to defend on behalf of his son.

Courtesy of Angélique Ruiz

Angelica Ruiz and her son Arthur.

During distance learning, Arthur suffered anxiety and behavior attacks as the pandemic progressed. He often refused to participate in online courses. He started hitting himself, his personal hygiene declined and he suffered from severe insomnia, Ruiz said.

Peters helped her son get additional therapy and other services, she said. It didn’t solve everything, but it made a big difference for Arthur, she said.

“Sitting in a room with all these people from school can be intimidating,” she said, describing her encounters with teachers, therapists and administrators at her son’s school. “Most parents are not trained to do this, we don’t always know what we are entitled to or what we should ask for. … Parents shouldn’t have to file (a lawsuit) just to get the services their children need. We shouldn’t have to fight for it.

But resolving conflicts like Ruiz’s is exactly what the new state fund will do, said Coates, director of special education for Tehama County, and Anjanette Pelletier, director of special education for San Mateo County. . By minimizing the role of lawyers and advocates, parents of all income should have access to free and fair dispute resolution. And disputes will be resolved faster, allowing students to receive services sooner, they said.

Pelletier and Coates started working on the legislation a year ago, when they noticed a surge in litigation in their counties related to special education over campus closings. The lawsuits not only delayed districts from providing services to students, but they also generated mistrust and antagonism between families and school staff, they said.

“The schools were at a stalemate,” Coates said. “It grew out of the need to help our students get services faster and improve relationships with families. ”

Another problem is the continuing shortage of special education teachers, made worse by the pandemic, Coates and Pelletier said. Special Education Teachers Already Face High Stress Levels When Trying To Help Students During Covid; they don’t need the added stress of litigation, they said.

Together with Assembly Member Jim Frazier, D-Fairfield and others, the couple helped create the legislation and guided it through the budget process. Ideally, the $ 100 million for outreach will benefit not only families, but school administrators as well, they said.

“It’s the dream, that administrators learn to improve communication with all families,” said Pelletier. “We’re not going to get rid of all the disputes, but hopefully this will allow us to do what’s best for children and to distribute resources more evenly. ”

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