CDE Compliance Complaint Announcement

Article from DREDF Special EDition - January 2011

Disability Rights Education and Defense Fund (DREDF) is taking a close look at the California Department of Education (CDE) and its handling of special education and/or disability discrimination compliance complaints. We have found that some parents are experiencing problems with CDE's handling of compliance complaints, and DREDF would like more information. We would like to know if you have had any problems with CDE's handling of a compliance complaint in the last two years.

NOTE: this concerns Compliance Complaints you filed with the CDE Procedural Safeguards Referral Service (PSRS) unit and/or the Office of Equal Opportunity (OEO – which investigates discrimination complaints), involving:

• the school district's failure to implement IEPs
• the school district's violation of the legal IEP process or rights mandated by federal IDEA and state law
• discrimination in providing or not providing school and school-related programs and services to students with disabilities.

This does NOT concern Due Process complaints filed with Office of Administrative Hearings (OAH) for disagreements on which services your child needs.

If you are dissatisfied with the handling of your Compliance Complaint, but unsure if there was anything wrong with the way it was handled by CDE, feel free to let us know that too.

Please email iephelp@dredf.org with the subject: "Compliance"

Feel free to pass this on to other California families.

Please reply no later than Tuesday, February 15, 2011, as this is a time-sensitive matter.

Disability Rights Education & Defense Fund (DREDF)
Ed Roberts Campus
3075 Adeline Street, Suite 210
Berkeley, CA 94703
510-644-2555
www.dredf.org

CAC Vice Chair Resigning

The CAC will be in need of a new vice chair soon as I am resigning. My family and I are moving out of state and I will be unable to serve any longer. I have appreciated the opportunity to work with the District and the Board of Education this past year. I hope that the CAC will be a place where parents, caregivers, staff and family can come together in their common interests for our children. The board of education faces difficult challenges in the year to come and need your input to guide them in decision making processes. Before I go, I would like to share some thoughts on four important issues before our community:

1. The consent decree will be coming to an end. This important legal tool has helped families resolve very difficult issues with the district. The board will now be free to make decisions about which of the mandated changes to keep or change. Among these are whether to keep the parent liaison and alternative dispute process or gut it to save money. As well, the board might choose to demote the Assistant Superintendent of Special Education to a director position in order to save money. Neither of these decisions would be in the best interest of children OR the district, but right now fiscal pressures are so intense that many politicians feel driven to be penny wise and nickel foolish. CAC should make itself heard: we need an ADR, Parent Liaison and an Assistant Superintendent to resolve problems at the lowest level (not in court) and to represent our 4000+ students on the Superintendent's leadership council.
   


2. The CAC bylaws are being revised. CAC must be a place where parents can turn for help, assistance and collaboration in solving problems as well as a place to network and appreciate the district. It is important that our bylaws reflect this, and I encourage members to work together to make CAC an organization where the community can speak out, raise their concerns and work together to celebrate the good and tackle the bad.


3. The Board of Education needs to know more about special education and that we have an active and involved parent community. To many policy makers locally, at the state and federal level, the provisions of IDEA and ADA are sometimes perceived as nuisances. Districts can support special education laws, tolerate them or actively resist them, stretching the letter of the law. Ours has had a history of resisting, and much of the progress made under the consent decree has been eroding before my eyes as the end approaches. The only way to ensure compliance and to build an open and willing acceptance of special education is to keep working with the district and with people who are not necessarily friends and allies. CAC has been ineffectual the last few years, and few members have been willing to stand up and speak truthfully to the board. If CAC is to make a difference in the challenging times ahead, everyone will need to understand the advisory role that we are legislatively mandated to fulfill. It is often uncomfortable giving advice under the best of circumstances, but in the end, we are the employer: the district and the board work for us. Speak truth and don't be afraid to disagree.
   


4. This year the district is committed to three reviews of special education: an outside consultant hired by the board, a self review mandated by the state and a CAC sponsored assessment of Assistive Technology (AT) services. School Board President, Gary Eberhart, was a proponent of the outside consultant and although he has come to describe this as a quality and fiscal review, it is clear from board minutes that his intention at the start at least was to save money. This has still been an important focus for him. School Boards rarely like the cost of special education as it is an unfunded mandate. The state school board association describes this as an "encroachment." One of the successes of CAC was to write quality review and compliance monitoring into this work. This review needs public oversight to make sure that CACs goals are fairly and legitimately addressed. Please contact parent liaison, Hillary Shen, to get involved. The self study from the state requires the inclusion of parent and community members. The broader our perspectives, the better the outcome. Please contact the office or the Assistant Superintendent of Special Education, Dr. Mildred Browne, to participate. The AT review has been a hard won volunteer effort that is ready to role out, but may die on the vine without a parent push. It is a good study and needs leadership.

I hope for the best for our community and leave with some sadness even as I look forward to this amazing opportunity for my family. I hope CAC can maintain some of the momentum we built over the last year. Thank you for the opportunity to serve and share these final perspectives.

Regards,

Gina Hale

Regional Centers Denying Services, too

Is your child a client of RCEB? This is for you. Seems like everything I think, write and say lately begins with "in the current economic crisis..." but the truth is schools and Regional Centers have been under tremendous economic pressure for years, and the experience of having services protected by law denied is not new for many of us. This publication from Protection and Advocacy answered many questions about what Regional Center's responsibilities are. As with school IEPs, services in RCEB are driven by goals in the IPP. Now more than every it is important to make sure those documents are accurate and complete, with all the I's dotted and T's crossed. 

ESY hours increased

I learned yesterday in my child's IEP meeting that summer school has been increased to 4.5 hours a day for all students. It will remain a four week program. Children with autism who attend ESY will receive 4.5 hours for six weeks, as planned. 

This is an important step in the right direction and remedies the district's unilateral decision to cut related services outside of the IEP process. 

Unfortunately, this does not remedy the disparity between related services for students with autism and those with other disabilities that have a severe impact. This is, I think, an issue for CAC to work on as we move forward into the new school year. 

Gina Hale, Vice Chair of the CAC

Board of Education Meeting 5/12/09

Members of the CAC attended the board of education meeting last night. Several members spoke during public comment and questioned the legality of the district's unilateral reduction of Extended School Year. Parents also related how the reduction in services will impact students in terms of regression and recoupment.  You can watch the live feed of the meeting on the blog sponsored by Mr. Strange and Mr. Eberhardt. 

In our annual report to the board of education, CAC made a recommendation that the board authorize the use of stimulus funds to restore ESY and to extend the duration and hours of ESY for all severely handicapped students to match the time in the autistic collaborative. The board agreed to look into this issue and requested staff for a briefing, especially regarding the compliance issue.   Below is the text of this section of the annual report, for your information.

If your family is concerned about the effect of ESY cuts, get in touch with your board members, the parent liaison and your IEP team as soon as possible.  

We will update the blog on this issue as we have news. From the annual report (for a copy of the full report, please email the committee):

Recommendation for immediate action

Extended School Year

We recommend the board immediately authorize the use of stimulus funds to restore ESY to its previous levels and expand the duration and hours for severely handicapped students.

 

It is with some alarm that the CAC reports to the board that this year district staff made a unilateral decision to cut Extended School Year for all students in the district to 20 days, three hours per day. Additionally, the autism collaborative was exempted from this cut. Staff informed the CAC that the decision was made “because of the budget” and stated that if students had more time than this specified in their IEPs, parents would be called in for IEPs and the IEPs “would be revised.” When asked what would happen if parents did not agree, the staff member replied, “we’ll see” and smiled. In April, when asked why the autism students were exempted from the cuts, the staff member said the district had data to support the claim of regression. The staff member presenting quoted a clause of a section of the California Education code to CAC to demonstrate the legality of this decision:

California Education Code 5 CCR 3043 - Extended School Year Services (d) An extended year program shall be provided for a minimum of 20 instructional days, including holidays.

 The CAC is deeply concerned about this decision and urges immediate action. We believe that this unilateral cut, in addition to discriminatory levels of service provided to severely handicapped students without autism, raises the district’s risk for litigation and jeopardizes community relations over an issue that is well addressed in statute and case law. The following information is provided by members of the committee to support this decision making process. This is a friendly reminder that we are a citizen committee and not attorneys, and this is not intended to be legal advice. We are however, struck by the volume of fairly consistent case law and statue in this area.

With respect to the California Education Code:

 1. The California Ed Code provides explicit guidance on how to determine ESY services:

3043.   Extended School Year.

Extended school year services shall be provided for each individual with exceptional needs who has unique needs and requires special education and related services in excess of the regular academic year. Such individuals shall have handicaps which are likely to continue indefinitely or for a prolonged period, and interruption of the pupil's educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the pupil will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her handicapping condition. (b) Individuals with exceptional needs who may require an extended school year are those who: (1) Are placed in special classes or centers; or (2) Are individuals with exceptional needs whose individualized education programs specify an extended year program as determined by the individualized education program team.

 2. The district may not use lack of evidence for regression to deny ESY services:

The lack of clear evidence of such factors may not be used to deny an individual an extended school year program if the individualized education program team determines the need for such a program and includes extended school year in the individualized education program pursuant to subsection (f).

 3.  ESY must meet certain standards to qualify for reimbursement:

(g) In order to qualify for average daily attendance revenue for extended year pupils, all of the following conditions must be met: (1) Extended year special education shall be the same length of time as the school day for pupils of the same age level attending summer school in the district in which the extended year program is provided, but not less than the minimum school day for that age unless otherwise specified in the individualized education program to meet a pupil's unique needs. (2) The special education and related services offered during the extended year period are comparable in standards, scope and quality to the special education program offered during the regular academic year. [Authority cited: Section 56100(a) and (j), Education Code] [Reference: Sections 37600, 41976.5 and 56345, Education Code; and 34 CFR 300.346]

 With respect to federal statute and case law:

 1. IDEA requires the district to make decisions regarding special education services on an individual basis, not on fiscal concerns nor the convenience of the district.

In Reusch v. Fountain, citing Pete's case, Florence County School District Four v. Shannon Carter, the District Court found that:

"In any contest between systematic efficiency and the provision of FAPE to a disabled child, Congress and the Supreme Court have made it clear that the child must prevail."

 

2. Refusing to provide notice that students have a right to request extended school year services and requiring attendance at futile IEP meetings is hostile. 

Hostility to Providing ESY: Reusch v. Fountain (1994)

In Reusch v. Fountain (D. MD 1994), a federal court addressed the school district’s "hostility to providing ESY." 

The court found that parents were prevented from advocating for their children by the district’s refusal to provide parents with notice about their right to request these services. The district also engaged in delaying tactics by requiring parents to attend futile meetings.

 3. There are precedents in addition to the statutory provisions in the California Education Code that guide the planning Individualized Education Plans for ESY.

In Reusch v. Fountain, the court listed six factors that the IEP team should consider in deciding if the child is eligible for ESY as a related service:

1.      Regression and recoupment - is the child likely to lose critical skills or fail to recover these skills within in a reasonable time;

2.      Degree of progress toward IEP goals and objectives;

3.      Emerging skills/breakthrough opportunities - Will a lengthy summer break cause significant problems for a child who is learning a key skill, like reading;

4.      Interfering Behavior - does the child’s behavior interfere with his or her ability to benefit from special education;

5.      Nature and/or severity of disability;

6.      Special circumstances that interfere with child’s ability to benefit from special education.

 

"Window of Opportunity:" Lawyer v. Chesterfield School Board (1993) Judge Spencer concluded, "Regression is not the only factor" in deciding if a child needs ESY services. The judge listed several additional factors that IEP teams should consider in making ESY decisions:

·       Recoupment in the Fall;

·       Child's rate of progress;

·       Child's behavioral or physical problems;

·       Availability of alternative resources;

·       Areas of the child's curriculum that need continuous attention;

·       Child's vocational needs.

In Lawyer, Judge Spencer discussed regression and recoupment. "Danny's regression in the summer, coupled with nominal recoupment, severely limits the educational benefits he receives from instruction during the school year. His rate of progress is minimized by the interplay of continuous regression and recoupment."

4. The District may not make unilateral decisions regarding ESY outside of the IEP process:

In an opinion letter to Given (2/4/2003), the Department of Education stated that IDEA Part B regulations require: “[A] public agency may not (i) limit extended school year services to particular categories of disability; or (ii) unilaterally limit the type, amount or duration of those services.” 34 C.F.R. 300.309 (a)(3)(i) and (ii). Furthermore, ESY are services that are provided “(i) beyond the normal school year of the public agency; (ii) in accordance with the child’s IEP; and (iii) at no cost to the parents; and (2) meet the standards of the SEA.”

 The CAC believes it is in the district’s best interest to provide Extended School Year in compliance with the laws of the nation and the state of California.