IEP Settlements and Inequality

In The Politics of Autism, I write about social services, special education and the Individuals with Disabilities Education Act.  Inequality is a big part of the story. 

Maddie Hanna at The Philadelphia Inquirer reports that Pennsylvania schools districts have spent millions to settle special education disputes.

To get a settlement with a school district over special education, first a child has to be identified by the district as requiring services — with an individualized education plan spelling out how the school will meet the student’s needs.

If parents disagree with what a district offers, they can take legal action by filing a due process complaint.

That can trigger formal hearings, which result in public decisions issued by hearing officers. But the vast majority of complaints are resolved through privately negotiated settlements.

As a result, most disputes around special education are happening out of the public eye, with little known about parents’ allegations or what districts are paying out.

“It’s something almost no one knows anything systematic, objective, and complete about,” said Perry Zirkel, a professor emeritus of education and law at Lehigh University.

In the Philadelphia collar counties, where special education-focused law firms have proliferated, lawyers say affluent parents, who know their rights and have the means to hire attorneys, are more likely to sue than poor ones.

The Individuals with Disabilities Education Act — the 1975 federal law entitling students to special education services — has never been fully funded by Congress, leaving schools vulnerable to litigation when they’re strapped to deliver the “free appropriate public education” the law requires, [Attorney Andrew] Faust said.

The IDEA is a “very much a rich-get-richer, poor-get-poorer statute,” Faust said, because unlike other civil rights laws, it relies on parents, not the government, to enforce it. [As my book notes, IDEA is not a civil rights law at all, but a "conditions of aid"law.]

OCR

In The Politics of Autism, I discuss the civil rights of people with autism and other disabilities. 

HEATHER HOLLINGSWORTH, COLLIN BINKLEY and ANNIE MA at AP:

As Trump began to reshape the Education Department, investigations and mediations around disability rights issues came to a standstill.

Standing up for children with disabilities has been a primary role of the department’s civil rights office, which enforces protections guaranteed under the Individuals with Disabilities Education Act. Historically, most complaints to the department have involved disability discrimination — parents saying their disabled child is not receiving accommodations they need to learn, which schools must provide under federal law.

It’s not unusual for new presidential administrations to freeze cases while they adjust priorities, but exceptions typically are made for urgent situations, such as a child’s immediate learning situation. The freeze on pending cases and Trump’s calls to dismantle the department altogether left many parents worrying about the federal government’s commitment to disabled students’ rights.

...

In the fall, DarNisha Hardaway was relieved when an Education Department mediator found her son’s school needed to reevaluate him and provide tutoring. She had filed a complaint with the department after a series of suspensions that she said stemmed from her son being overwhelmed and not getting enough academic help. The 12-year-old has an intellectual disability, autism and epilepsy.

The Education Department, Hardaway said, “made the school system do what they’re supposed to do.”

If the school district broke the mediation agreement, she was told to contact the Office for Civil Rights again. This month, after her son had an outburst in class, his suburban Detroit school told her he would need to learn online for the rest of the year — a ruling Hardaway saw as a violation of his disability accommodations. On Tuesday, an Office for Civil Rights representative told her they could not respond with any substantive information.

Every day she waits, her son learns in front of a computer. “He can’t learn online, and DarNisha is not a teacher,” said Marcie Lipsitt, who is working with the family. “The OCR is just closed for business, and I’m outraged.”

OCR enforces section 504 of the Rehabilitation Act, which Trumpist state attorneys general are suing to overturn. 

See my earlier post.

IDEA Dispute Resolution

In The Politics of Autism, I write about the experiences of different economic, ethnic and racial groups.   Inequality is a big part of the story. Affluent school districts have more resources than poor ones.  Educated professionals are better able to protect their children's interests than poor people who never went to college.

Attorneys have become major figures in the world of autism, because people often need legal counsel to get services from school districts and other government agencies. Soon after a diagnosis of autism, parents seek advice from those who have already been on the path. And soon they will hear, “Get a lawyer.”

The rights approach puts a great burden on parents to serve as advocates for their children.  Highly-educated, affluent parents are in a better position to do so than the poor and uneducated:  for one thing, their social networks are more likely to include lawyers and expert witnesses.  

But even the best-equipped parents are at a disadvantage against school district administrators and other bureaucrats. Like their representatives in Washington and state capitals, they are “repeat players.”  Their experience and expertise give them an edge that the parents’ special-education lawyers can only partially overcome.

The Government Accountability Office has a report titled "IDEA Dispute Resolution Activity in Selected States Varied Based on School Districts’ Characteristics."

The summary:

In school year 2016-17, 35,142 special education disputes were filed nationwide, and in five selected states GAO reviewed, dispute resolution options varied across school districts with different socioeconomic and demographic characteristics. The Individuals with Disabilities Education Act (IDEA) provides parents several ways to file and resolve disputes about plans and services that school districts provide to students with disabilities. A greater proportion of very high-income school districts had dispute resolution activity as well as higher rates of dispute activity than very low-income districts in most of the five states GAO reviewed. GAO also found that in most of these states, a smaller proportion of predominately Black and/or Hispanic districts had dispute resolution activity compared to districts with fewer minority students; however, predominately Black and/or Hispanic districts generally had higher rates of such activity. Technical assistance providers and others told GAO that parents used dispute resolution most often for issues related to school decisions about evaluations, placement, services and supports, and discipline of their children. 

Parents may face a variety of challenges in using IDEA dispute resolution, and the Department of Education and states provide several kinds of support that, in part, may address some of these challenges. Stakeholders cited challenges such as paying for attorneys and expert witnesses at a due process hearing, parents’ reluctance to initiate disputes because they feel disadvantaged by the school district’s knowledge and financial resources, and parents’ lack of time off from work to attend due process hearings. Education and state agencies provide technical assistance to support parents’ understanding of their rights under IDEA and to facilitate their use of dispute resolution options, for example, by providing informational documents and phone help lines to parents.

Education Department Urges Avoidance of Due Process

In The Politics of Autism (forthcoming later this year from Rowman and Littlefield), I devote a chapter to the education politics of autism.  A major topic of this chapter is due process.

From a "Dear Colleague" letter by Acting Assistant Secretary of Education Sue Swenson and Melody Musgrove, Director of the department's Office of Special Education Programs:

Public agencies that seek to force parents who have already exercised their right to file a State complaint into a potentially more adversarial due process hearing harm the “cooperative process” that should be the goal of all stakeholders. Moreover, diverting resources into adversarial processes between parents and public agencies is contrary to Congressional intent in the 2004 amendments to IDEA’s dispute resolution procedures to give parents and schools expanded opportunities to resolve their disagreements in positive and constructive ways. 20 U.S.C. 1400(c)(8). We strongly encourage public agencies to respect parents’ reasonable choice to use the State complaint process rather than a due process complaint hearing. Likewise, before pursuing a due process hearing, a public agency should attempt to engage parents in mediation or other informal dispute resolution procedures, as appropriate.

Due Process and Mediation

Meghan M. Burke, Samantha E. Goldman have an article in The Journal of Autism and Developmental Disorders titled "Identifying the Associated Factors of Mediation and Due Process in Families of Students with Autism Spectrum Disorder."   They cite previous studies showing that families with an ASD child are more likely to push back than those of children with other disabilities. There are also differences among the families with ASD children. An excerpt:

First, families who advocated more and had weak  family-school partnerships were significantly more likely to file for due process or mediation (p’s\.0001). Because one piece of advocacy is understanding special education law (Trainor 2010), including conflict resolution procedures, parents who advocate more frequently may be more  likely to know about mediation and due process and, because of their knowledge, more likely to utilize these procedures. In addition, poor family-school partnerships may increase the likelihood of conflict because the parent and the school do not trust each other (Fish 2008). Conversely, family-school partnerships may deteriorate after a family files for due process (Mueller 2009).

Second, child characteristics also significantly related to the use of procedural safeguards. Compared to students who spent a large majority of their day in the general education classroom, families of students who were included for only 0–20 % of their time were 1.92 times more likely to enact their safeguards. This finding aligns with previous research indicating that placement is a common issue in due process hearings among families of students with ASD (Mueller and Carranza 2011). Our data indicates that families may be arguing for more inclusive settings. Parents of children with ASD who spend most of their time in self-contained classrooms may have greater concerns about their child’s quality of instruction and staff (Ryndak and Downing 1996). Child age also related to the enactment of safeguards with parents of older students being significantly more likely to file mediation or due process. Given that family-centeredness decreases with age (Dunst 2002), parents of older students may be more likely to use safeguards.
...
Third, parent characteristics also related to the usage of procedural safeguards. Families with greater incomes were significantly more likely to file due process or mediation. Given the high costs of hearings (Mueller 2009), families with more money may be better positioned to file for due process. However, the issue of income may represent a larger challenge of access and for whom due process and mediation can be viable conflict resolution procedures. Being unable to afford attorney representation or secure legal advocacy services, families from lower income backgrounds may feel that due process is not an equitable process (Shemberg 1997).

• Dunst, C. J. (2002). Family-centered practices: Birth through high school. Journal of Special Education, 36, 139–147.
• Fish, W. W. (2008). The IEP meeting: Perceptions of parents of students who receive special education services. Preventing School Failure, 53, 8–14.
• Mueller, T. G. (2009). Alternative dispute resolution: A new agenda for special education policy. Journal of Disability Policy Studies, 20, 4–13.
• Mueller, T. G., & Carranza, F. (2011). An examination of special education due process hearings. Journal of Disability Policy Studies, 22, 131–139.
• Ryndak, D. L., & Downing, J. E. (1996). Parents’ perceptions of educational settings and services for children with moderate or severe disabilities. Remedial and Special Education, 17, 106–118.
• Shemberg, A. (1997). Mediation as an alternative method of dispute resolution for the Individuals with Disabilities Education Act: A just proposal? Ohio State Journal on Dispute Resolution, 12,739–757.
• Trainor, A. A. (2010). Diverse approaches to parent advocacy during special education home-school interactions: Identification and use of cultural and social capital. Remedial and Special education, 31, 34–47.