Guest blogger Stacey Smith is an OUSD parent and volunteer who has served on several district committees, including the Community Advisory Committee for Special Education. What she writes about does not reflect the view of any group.
The Oakland Unified School District’s 2011-2016 Strategic Plan calls for “a significant decrease in the number of special education litigious and non-compliant cases” by 2015-2016, a legal problem the district blames on negative relationships and communications with parents and the community.
Unfortunately, data so far shows that non-complaint cases and litigation have remained the same or increased, attorneys’ fees are up about 50 percent, and the real problem may be program implementation and lack of critical student support.
Let me explain:
OUSD has long complained about the high cost of special education litigation and compliance complaints, claiming these costs create a barrier to providing better special education. The goal it developed is hard to measure when there are no specific numbers, dollar figures or percentages included as part of the goal — or even a description of how OUSD defines “litigious cases.”
But it’s budget time again. It seems like a good time to talk about how OUSD is progressing toward this vague goal and how that could affect spending decisions for 2013-14. This isn’t just an exercise in data crunching – there is a real child with special needs behind each case.
I’ve heard of a few high-cost civil cases over the years, and I wasn’t able to collect that data for this exercise. But if we’re going to talk about large numbers of cases that could generate high expense to the district and be targets for reduction, we should look at the two most common types of cases in special education: compliance complaints and due process filings.
In general, a compliance complaint is used when the district hasn’t fulfilled its commitment to the student or when it hasn’t followed specific special education laws or procedures. For example: not providing a translator for an IEP meeting, or not providing an aide or services the IEP says a student is supposed to have. Due process is for things like a disagreement about what goes into the Individual Education Plan, or IEP, or where the student will be placed. (There’s overlap between the two legal options and it’s confusing to everyone, so just know that from here on in if I refer to “compliance” I’m talking about compliance complaint data.)
OUSD’s strategic plan suggests that special education compliance complaints and litigation are directly linked to a lack of positive relationships and communications (Strategic Plan Focus 2C.6). Improve relationships, decrease complaints, decrease costs—so goes the district’s theory. CDE was unable to provide data on why due process cases were filed, but I received all the alleged compliance violations listed for the compliance complaints. Wonder if OUSD’s theory holds up?
Not really, according to data provided by the California Department of Education. The number one reason OUSD has been found out of compliance since 2008 has been the district’s failure to implement a student’s IEP. Last year this violation was cited in half the non-complaint cases.
This isn’t about relationships.
In fact all of the different compliance violations the California Department of Education found would have had a negative impact on the student’s special education supports or the creation of a meaningful IEP. The data suggests an ongoing failure by the district to provide the resources needed to help these students – repeatedly and over a long period of time.
OUSD says that the figures it used to develop the plan were 17 compliance cases and 20 litigation cases. OUSD hasn’t provided specifics on the figure it used for non-compliant cases, despite repeated requests. The numbers the district provides are perplexing because the strategic plan was initiated in 2009-10 and designed in 2010-11, but OUSD’s numbers don’t match the data from the Department of Education.
However, compliance complaints and due process filings seem to have since increased beyond those figures, especially if due process filings and civil cases are included. It’s hard to predict what will happen during the remainder of this school year and beyond but right now it looks like OUSD isn’t on track to meet its goal.
Let’s talk money. Noncompliance has real costs, not only in terms of support not provided to students who need it, but also in terms of expense to the district.
If the Department of Education finds OUSD is out of compliance, it orders the district to fix the situation within a certain amount of time. Sometimes the department orders compensatory education or monetary reimbursement to families. For example, a family might pay for services the district failed to provide and then seek to reclaim that money. Compensatory education can also be a big expense, especially if it is provided by an outside agency. It doesn’t happen all the time; some Department of Education findings seem to just tell OUSD to start following the law and sometimes the district will correct the problem before the department orders action.
Due process is harder to quantify because the parties often settle before a hearing. Maybe the Office of Administrative Hearings could provide some clarification, but OUSD often imposes a gag order on families for both due process and compliance complaint resolutions so it doesn’t seem to want that information to get out. I was able to identify one due process hearing decision between 2010 and October 2012 with an expense to OUSD. The district was ordered to provide 255 hours of compensatory education to a student through a nonpublic agency with no other reimbursement costs. It seems fair to assume that there would be other OUSD expense as part of these confidential resolutions, too.
In addition, from 2009-2012, OUSD spent a half million dollars on attorneys’ fees. Over half of that sum covered families’ attorney fees. Unfortunately, OUSD did not separate out the different types of litigation in the spreadsheet they provided, so we know the expense but not how it was incurred. We also know the current 2012-13 special education budget allocates $350,000 for legal fees and $383,277 for “Payment to Family in Lieu Of” but not the basis for these budget figures. It’s like piecing together a puzzle, isn’t it?
The district has not answered my requests to produce a complete estimate of the cost of complaints and litigation, which would include OUSD personnel costs, the contractor fees for things like compensatory education, training and materials, and reimbursement outlays. If they are not tracking these items closely, they should be. These are the true costs that are hurting the program. Based only on the data available, the implied expense is staggering both in terms of time and money.
It also seems that legal costs are not the cause of failure to provide service, as the district so often claims, but rather they are the consequence of that failure. There will always be a few disgruntled people, but noncompliance seems too widespread to blame OUSD’s legal woes solely on poor communication or relationships.
An analysis of the data and information from OUSD staff show a systemic failure by the district to meet its obligations, repeatedly and often avoidably. Sometimes, even intentionally. One former special education director told me her policy was to never go to due process. She would let an issue go until the last possible minute and then resolve it before a formal hearing. It was a bet that most families would fold before making it that far, even when the district was at fault. It worked, but how much did that strategy cost the district during her tenure? How much did it cost the students? Is the strategy still used today?
When OUSD doesn’t fulfill its obligations, it reduces a student’s chance to be successful. That is the ultimate cost, which causes a ripple effect in the classroom, the school community and beyond. OUSD has had five special education directors in the last seven years and the position is open yet again. All of these folks have tried to address the situation to some extent, along with some extraordinary staff who struggle on through the ongoing lack of stability and uncertainty. But until program and budget decisions stop being imposed on the department, as they have for years with no regard for actual need, and until OUSD has the will to tackle the issue of support for these students district-wide, I’m afraid we’ll continue to see both the problems and the expense imposed by these conditions.
What do you think?