Special needs parents appear before Sunset
Hearing system favors school districts, they argue
By Asher Price, AMERICAN-STATESMAN, December 14, 2004

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Brandon Rummel, a 12-year-old sixth-grader who loves the Beatles, has had cerebral palsy since birth. He has difficulty swallowing and suffers occasional seizures.

Two years ago a dispute between Brandon's mother and the Dripping Springs school district blew up after district officials refused to reveal the names of the assessment tests they were performing on him, his mother said. The case had gone to a special education due process hearing, a legal avenue parents and a district can use to settle a dispute, and Brandon's mother, Leah Rummel, won a declaratory judgment. But then the district wanted to press forward with a trial. She decided to withdraw her child from school: She said that she was almost bankrupt and that Brandon was losing weight and had virtually stopped talking.

"I realized that I was paying a lot of money for the school to do the right thing, and in reality my son was suffering in the process," she said.

The struggle involving Brandon, now a student in the Eanes district, is part of a push-and-pull pattern between protective, exasperated parents and well-intentioned districts that are mandated by the federal government to care for special-education students. But it is the sticky legal proceedings that give parents some of the greatest grief and the districts some of their steepest bills. The hearing system, crowded with legal thickets, is structurally skewed to favor school districts, parents and advocates say.

As the Sunset Advisory Commission reviews the Texas Education Agency this week, two of the Dripping Springs parents of special-needs kids, Rummel and Karen Yeaman, will testify before the legislative panel that the cost of such a struggle and the tangled relationship between hearing examiners, the agency responsible for regulating the districts and the districts themselves create an unfair hearing process.

In a performance review of the Dripping Springs district released by the comptroller's office in August 2002, the district was found to have spent about $20.22 per student in legal costs in the 2001 fiscal year. The leading legal cost, at $40,302, was for special-education matters. The comptroller's office recommended that the district decrease its legal fees to $15 per student. But in the 2004 fiscal year, legal expenses had climbed to $332,808 or about $100 per student. The district is on track to spend less than half that this fiscal year.

"We did have some particular challenges," Superintendent Mary Ward said. Contracts for construction projects and personnel matters also play large roles in driving up legal expenses, she added.

"It would be fair to say generally speaking that's where you should be (at $15 per student), with the recognition there will be times that is not possible."

But to some parents, who claim the district uses its clout and pockets to outlast challengers, the high legal fees have been paid too willingly.

"It's an upside-down system when you pay six figures not to give children an education," said Elaine Roberts, the Houston lawyer for the Yeaman family.

Parents willing to slug it out in the hearing process have little chance of winning outright. According to one TEA study, of the 379 requests for due process filed during fiscal year 2001, only one was decided wholly in favor of the parent. More than 300 of the cases were dismissed (at least a third of which were settled, according to records); 52 decisions were made wholly in favor of the district; and 19 were made partly in favor of both parties.

"The deck is stacked before you start," Yeaman said.

Under the federal Individuals with Disabilities Education Act, enacted in 1975, parents of students with disabilities can challenge how their children are accommodated. In a due process hearing, a hearing examiner, essentially a judge who can depose witnesses or request information, may hold a minitrial. The 1975 bill has meant that litigation over special-needs students is frequently the most costly of a school's legal expenses.

"I think it's because parents of students with disabilities have avenues of legal recourse that other parents don't," said Jim Walsh, whose law firm, Walsh Anderson, represents the Dripping Springs district and about 300 others around the state. "If a parent of a student with a disability is dissatisfied with the education or disagrees with how the child has been served, you can go to a hearing."

Richard LaVallo, a lawyer with Advocacy Inc., a federally funded protection and advocacy organization for people with disabilities in Texas, said the system favors the districts.

Hearing examiners are independent contractors hired by the TEA, LaVallo said, and some of those hearing officers contract with the districts in other matters or formerly represented them as lawyers. He said that the TEA only occasionally reviews grievances made against hearing officers. Parents representing themselves because they can't afford a lawyer face skilled lawyers paid by the district, he said.

asherprice@statesman.com; 445-3643

Related Story:

Dripping Springs I.S.D. should become a target by the U.S. Justice Department!
by Jimmy Kilpatrick, December 15, 2004
EducationNews.org

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Ginny Garrison, a certified reading/dyslexia specialist in Austin, Texas, with 25 years of experience in education , ten of those years as a specialist, reports that she completed an evaluation on a twelve year old girl in the Dripping Springs I.S.D. who had previously evaluated by Dr. Kevin McFarley, Ph.D,. in Austin. Both Ms. Garrison and Dr. McFarley found the 6th grader to be highly intelligent, verbal IQ 119, yet only able to read at the .1 percentile level, 1.9 grade level, according to the Woodcock Diagnostic Reading Battery. The WDRB's report included this information, "When average individuals at her age perform Letter-Word Identification tasks with 90% success, this student performs with 1% success...Total Reading is a significant weakness for the student. She surpassed the reading performance of only the lowest 1% of age peers who obtained the same predicted Total Reading score." The girl had been in the Dripping Springs I.S.D. for all 7 years of her public school education.

An A.R.D. meeting was called to review the new testing and at the same time, a new I.E.P. for the girl was given out. The new I.E.P. essentially was the same type of computer- generated I.E.P. the family had always received. When Ms. Garrison and the parents explained that in the light of the new evaluation the general goals were not appropriate and could not result in the progress needed to move the 6th grader to the fourth grade levels the special education teacher planned to attain by the end of the year, the A.R.D. committee decided upon a break from December 3 to December 13.

Upon the commencement of the A.R.D. on December 13, at 8:30 a.m. at Dripping Springs Middle School, the district's special education director, Sandy Grabner, was now in attendance. The hopes of any progress on the computer-generated I.E.P. were dampened when Grabner declared that the district had decided they needed to test the girl again, despite their failure to do so in an ongoing way with authentic testing, for years. When Garrison asked repeatedly for a reason why the district suddenly wished to test again, before the three year required district testing, and after the outside testing of McFarley and herself, Grabner said several times, "Because we can." When asked what tests they wished to do, Grabner declined to give the names of any of the tests.

Ann Spracht, special education teacher, for Dripping Springs I.S.D. and the a teacher of the girl left the room at one point with all of the A.R.D. committee following her due to frustration over questions about her lack of any norm testing. When asked if she had a fluency score for the 6th grader, Spacht, said she did not. When asked if she was willing to include fluency training as part of the reading instruction, she said she was not. Ms. Garrison then stated that fluency was part of the legal definition of reading and she did not see how it could be left out of the goals and the instruction. Grabner turned to Spacht at that time and asked she might include it later when they had had a chance to look more closely at how well the girl was doing with the coming reading instruction. Spacht felt then that perhaps she might be able to do something with it.

By the close of the meeting which was four hours long, the parents had asked about the training of Spacht whose transcripts did not show any specific courses in reading. Although the district espouses the Project Read method of teaching reading, Spacht's records did not show she possessed significant training in this method either.

At this time, the district seems to have taken the position of not making specific changes which meet the girl's specific tested needs due to the fact that they seem to feel they can do nothing with impunity. And evidently with the heavy guns of their well-paid attorneys behind them, they feel very safe in doing just that.

EducationNews attempted to contact the district regarding this story.

12 Houston School Districts are Failing to Mainstream Special Ed Kids Appropriately, Says TEA

TEA says SMSD below average for
mainstreaming special ed students
Plan to turn ration around in placeBy Barbara Fulenwider

The Texas Education Agency has listed Stafford Municipal School District (SMSD) among 12 Houston area school districts as doing less than an average job of mainstreaming special education students into classes.
The Stafford school district made the list the Texas Education Agency (TEA) had to publish for the first time this year because for two consecutive years or more it has been above the state average for the number of special education students in traditional classrooms. Federal law calls for placing as many special education students as is practical in regular classes.

"The numbers being currently reported are for (the school years) 2001-02 and 2002-03 and do not reflect 2003-04," said Lloyd Graham, SMSD superintendent who started his new job in June 2003. Because the district did not have enough special education students mainstreamed when he arrived, he said he requested a District Effectiveness and Compliance (DEC) audit by TEA.

"That was one of the key reasons when I got here that I wanted TEA to come in and look at special education. My hope and expectation is that for 2003-04 that ratio will be decreasing. There's been a change in leadership and the special education philosophy has also changed. We are doing everything we can to mainstream more. You cannot radically change educational placement for special ed children, so it's something that may take us a couple of school years to get in line," Graham said.

"We have a new special ed director and we've reorganized the department. We had the state come in to look at us and the state gave us a correctional action plan. Then we generated our own plan subsequent to the state visit and that the state had to approve. The district has to do a corrective action plan, which was submitted to TEA. The completion of the action steps in this plan will help bring us into compliance."

The superintendent said, "Early on we were concerned and the board agreed with my concerns and we worked with TEA, did the correction action plan and created a position of special education director to oversee the department and implement the plan. We used a third party (TEA) to come in and help us put the plan in place."

He said the district's departmental review included focus groups of parents and teachers. "We were aware and we acted but the administration doesn't have the ratios for this year but we are working to bring that ratio down."

As for his personal feelings about mainstreaming special education students, he said, "I have an absolute inclusionary philosophy. In 1994, I was named the regular educator of the year for the state of Texas because of my advocacy for inclusion (of special education students) at South San Antonio ISD. Special ed kids need to be in the least restrictive environment - that's always a goal, so inclusion is always a goal.

"I respect and acknowledge that there are needs and educational constructions for which inclusion may not be appropriate and those decisions are rightfully those of the admission review and dismissal committee," which is made up of the child's parents, teacher, special ed counselor, etc., Graham said.

Ninety Texas school districts made the TEA list of being above average for the number of special ed students who aren't in regular classrooms.

Determining whether a special ed student should be in a regular classroom has to take into account children without disabilities too in order to assure that all children receive the same educational opportunities and that one doesn't impact negatively on the other.