The threatened deluge of post-pandemic special education litigation may be averted — or at least minimized— by a new initiative in California encouraging parents and schools to resolve disputes before heading to court.
The state budget, signed Friday by Gov. Gavin Newsom, sets aside $100 million for resolving special education conflicts between parents and school districts, which escalated during remote learning.
The money will go toward outreach, such as brochures, meetings and presentations, to help parents and school staff understand the rights outlined in the Individuals with Disabilities Education Act, the federal law that requires districts to educate students of all abilities. The goal is to improve communication and build trust between parents and schools, so conflicts can be resolved quickly and more easily.
None of the money can go to attorney fees.
“I had tears of joy when the governor signed it. We worked so hard to make this happen,” said Veronica Coates, director of Tehama County’s Special Education Local Plan Area, who helped craft the legislation. “We won’t escape all disputes, but this means we can devote more resources to helping kids, not paying lawyers.”
In addition, the state set aside $450 million for extra tutoring, therapy and other services that students with special needs missed during remote learning. It also funded the first steps of a system similar to what other states use to help parents get support from neutral facilitators during special ed meetings. The aim is for parents to better understand the special education process and needs of their children.
Many students in special education fell behind during distance learning because so many services for disabled students — such as speech or physical therapy — were nearly impossible to deliver virtually. Under federal law, parents can sue a school district if they feel their children aren’t receiving services they’re entitled to in their individualized education program, or IEP.
Special education lawsuits can be expensive for school districts. The cost of providing special services might be relatively minimal — say, a few thousand dollars — but if the district loses the case, it often owes parents for their attorney fees, which can top $100,000. The district also has to pay its own attorneys, although those costs are typically lower. In some cases, a judge orders districts to pay for costly services such as boarding school for students with severe challenges.
Schools in California have so far paid more than $5.4 million in attorney fees for Covid-related special education disputes, Coates said, adding that the number is probably far higher because only a quarter of districts responded to a survey on the topic. Less than half that total — $2.3 million — went to providing services to students in those disputes, she said.
Disputes usually center on the number of hours of extra services a student might need. A district might say a student is entitled to two hours a week of speech therapy, for example, but a parent might want eight. If the parties can’t compromise, either side has the option of requesting a hearing with the state Office of Administrative Hearings. The department assigns a mediator to help the parties resolve the matter, and if that fails an administrative law judge will hear the case.
California sees far more special education disputes, on average, than most other states. In 2018-19, parents’ requests for mediation in California represented nearly half of the requests nationwide, according to the Consortium for Appropriate Dispute Resolution in Special Education. California’s rate of mediation requests was four times higher than the national average. The number of cases in California jumped 84% from 2006-07 to 2016-17, according to the Legislative Analyst’s Office, costing schools millions.
Last year, the number of cases filed with the Office of Administrative Hearings actually fell 16%, according to the department, although that number may increase this fall as schools get caught up with student assessments and evaluations. In 2020-21, when most schools were closed due to Covid-19, the Office of Administrative Hearings received 3,908 cases, 87 of which couldn’t be resolved through mediation and ended up in court. The previous year, the office received 4,650 cases and held 91 hearings.
Many of the cases post-pandemic are centered on “compensatory education” — extra services to help students catch up to the benchmarks in their IEPs. Compensatory education can mean one-on-one tutoring, summer or after-school programs, extra therapy or other specialized assistance.
Matthew Tamel, a Berkeley attorney who represents school districts, said so far his volume of special education cases hasn’t increased since the pandemic, but “the cases are more intense, harder to settle.” They often center on what services a student needs to catch up following campus closures. A parent might want 400 hours of speech therapy for their child, for example, while the district believes the actual estimate of lost time is closer to 100 hours.
State funding to help resolve these disputes before they head to court is a welcome development that will hopefully lead to smoother negotiations and outcomes that are reasonable for both sides and beneficial for students, Tamel said.
“When schools first closed, it was a very difficult time. Everyone thought it would just be a few weeks, and it turned into a year and a half in some districts. Not everything was perfect when schools first closed,” he said. “Most families understand that. … This fund will hopefully help students get the services they need to make up what was missed in 2020 without having to go to court.”
But some say the state’s promotion of out-of-court dispute resolution favors districts, not parents. Without hiring lawyers or professional advocates, parents might be at a disadvantage when negotiating with districts over the services they believe their children need. Lower-income parents are especially vulnerable because the only way they can get reimbursed for attorney fees, which can cost upwards of $400 an hour, is by going to court, said Jim Peters, a Newport Beach advocate who helps parents in special education disputes.
“I support the idea in general of alternative dispute resolution, but in this case it’s disingenuous,” said Peters, who helped organize a class-action special education lawsuit against the state last year. “The money won’t be given out based on a child’s needs, it’ll be given out based on which parents can afford to hire attorneys.”
Angelica Ruiz, a parent in San Bernardino County whose 12-year-old son, Arthur, has moderate-to-severe autism, said she never would have won extra services for her son if she didn’t have a professional like Peters advocating on her son’s behalf.
During remote learning, Arthur suffered anxiety and behavior meltdowns as the pandemic wore on. He’d often refuse to participate in online classes. He began hitting himself, his personal hygiene declined and he suffered from severe insomnia, Ruiz said.
Peters helped her son get extra 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 the school, it can be intimidating,” she said, describing her meetings with her son’s teachers, therapists and school administrators. “Most parents aren’t trained to do this, we don’t always know what we’re entitled to or what we should be asking. … Parents should not have to file (a suit) just to get the services their kids need. We shouldn’t have to fight over it.”
But solving conflicts like Ruiz’s is exactly what the new state fund will do, said Coates, the special education director from Tehama County, and Anjanette Pelletier, special education director for San Mateo County. By minimizing the role of attorneys and advocates, parents of all incomes should have access to fair, free dispute resolution. And disputes will be settled quicker, allowing students to receive services sooner, they said.
Pelletier and Coates began working on the legislation a year ago, when they noticed a sharp uptick in litigation in their counties related to special education during campus closures. 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.
“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 issue is the ongoing shortage of special education teachers, worsened by the pandemic, Coates and Pelletier said. Special ed teachers are already facing high levels of stress trying to help students during Covid; they don’t need the additional stress of litigation, they said.
Working with Assemblyman Jim Frazier, D-Fairfield, and others, the pair helped create the legislation and shepherded it through the budget process. Ideally, the $100 million for outreach will benefit not just families but school administrators as well, they said.
“That’s the dream, that administrators learn to improve communication with all families,” Pelletier said. “We’re not going to get rid of all disputes, but hopefully this will allow us to do what’s best for kids and spread the resources more equitably.”
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