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MDUSD appears to misrepresent some information in letter to parents about special education transportation changes

By Theresa Harrington
Tuesday, July 31st, 2012 at 6:31 pm in Education, Mt. Diablo school district.

Although a June 20 letter to some Mt. Diablo district parents appears to attribute details about upcoming transportation changes to an outside agency, I have found that the district actually generated some of the information itself.

The letter includes drastic changes in special education busing procedures, including one that is being implemented “immediately,” one that will go into effect Aug. 26 and one set to begin Jan. 7.

According to the letter, the changes were based on a “Financial Crisis and Management Assistance Team (FCMAT) study to assist with identifying more effective and efficient means to provide special education transportation.”

Yet, the district didn’t receive FCMAT’s draft transportation report until July 18 — nearly one month after the letter was written. The district had, however, received a June 5 letter from FCMAT outlining some of its preliminary findings and recommendations, which it had not publicly disclosed.

The June 20 letter to parents states: “The study revealed that we are significantly overidentifying transportation as a related service for special education students. For example, the district currently provides transportation to 26 percent of our students with an IEP (Individualized Education Programs); however, in most districts reviewed by FCMAT the average was approximately 10 percent. The FCMAT team found that the district has an inordinately high number of parents who receive reimbursement in lieu of transportation services. One similarly sized district has only two parents who are paid in lieu while we reimburse 144 parents. In response to the FCMAT findings and recommendations, the district is modifying special education transportation services as follows.”

First, the letter states that parents will only be reimbursed for transporting students if the district is unable to transport them.

Second, it states that special education students who attend their neighborhood schools will no longer receive transportation unless they have unique needs.

Third, it says some students will be picked up and dropped off at nearby schools, instead of at their homes, beginning Jan. 7. According to this “cluster model,” students would then be transported to and from schools that are farther away, the letter states.

But when I read FCMAT’s June 5 letter and July 18 draft report, I didn’t see any mention of the “similar sized district” referenced in the Mt. Diablo letter. So, I sent an email to Bill Gillaspie, chief administrative officer for FCMAT, pointing out that the information did not appear in its letter or draft report and asking which district it was using as a comparison, how many special education students it served and what percentage of them were transported to and from school.

“In response to your question, we did not give the district the ‘similarly’ sized district,” he wrote in an e-mail.

We don’t know what district they are referring to, so I can’t tell you how many students with IEPs there are or how many are being transported.

You are correct. We make no reference about this in the draft report.

The district must have that information that they are referring to in their letter to parents.”

I also noticed that the draft report attributed the “cluster” idea to an analysis the district received “from a third party expert in special education law, compliance with IDEA (Individuals with Disabilities Education Act), and best practices.”

“As a result,” the draft report states, “Mt. Diablo Unified is working towards clustering special education students at group stops where appropriate and training special education staff members in the IEP process and in determining whether transportation should be a related service. That same expert has developed a checklist that can be used in IEP meetings to help appropriately direct the provision of service.”

FCMAT then recommends that the district “cluster stops for students who can reasonably get to their local school or a nearby bus stop.” It adds: “These changes should be clearly communicated to parents well in advance.”

Just to double-check, I asked Gillaspie if the cluster idea came from FCMAT or from the district. Here is his emailed response:

“The ‘clustering’ is a MDUSD word that appears to have legal grounds to do so, according to the MSUSD legal counsel. You may clarify that with them, if necessary.

We continued to use it so there would be some consistency in how the district communicates the concept to their parents.

What MDUSD is hoping to do is create group bus stops most likely at the elementary school of residence in their neighborhood, or at a common, public location, like a park, rather than picking up each child at their doorstep.

We agree that having group bus stops for the less severe students who can safely get to those stops is a positive for the children and district.

This can be a cost reducing method of providing transportation, provides for the least restrictive environment and promotes student independence with parent support.

Any change of placement or services will involve an IEP meeting, which consists of a meeting between parent and district.”

I asked for a copy of the independent legal analysis on which the clustering idea was based. Gillaspie said it was FCMAT’s belief that it was a public document, since the district had provided it to FCMAT.

However, as a courtesy, Gillaspie said he called Greg Rolen, the district’s general counsel, on Monday to let him know that FCMAT intended to release the document to me and to see if Rolen had any objection. So far, Gillaspie has not heard back from Rolen.

I also asked Gillaspie to name the districts FCMAT reviewed, when it determined that “most school districts” transport about 10 percent of special education students.

“The figure that we use has no basis in any statistical report or data that is available from the state,” he wrote in an e-mail. “Over the years we observe that most districts that control their transportation placements seem to transport about 10 percent of the total special education population.

(The state wide average of serving children in special education is between 10 percent and 11 percent of the general education population).”

Yet, FCMAT’s report and the district’s letter to parents both appear to represent the transportation percentage as a fact that has been “reviewed” by FCMAT. To further clarify whether FCMAT compared districts, I followed up with a phone call.

Gillaspie said FCMAT had not actually analyzed its data to confirm its conclusion.

“What I told you is an honest opinion what we observe,” he said. “We’re looking at the number of kids that are being transported and the number of kids in special education in the district and we’re drawing a conclusion from that.”

Again, I asked him to name the districts to which he was referring. After hesitating for a few moments, he said the Poway Unified School District transports about 10 percent of its special education students.

“That would be my estimate,” he said. “I would say that you could look at Poway and probably draw that conclusion.”

However, he did not provide the data to back up this conclusion. Instead, he said I could look at the transportation reports on FCMAT’s website.

Gillaspie also said that he was not sure whether other districts “cluster” special education students or whether FCMAT had ever recommended that any other districts do that. He said he would try to find out and get back to me.

I also noticed that the district’s announcement in the parent letter that it will stop transporting students to their neighborhood schools (in most cases), is not specifically stated as one of FCMAT’s recommendations.

Instead, FCMAT recommends improving transportation forms and checklists, which would require parents and district staff to identify whether students attend their neighborhood schools. As previously noted, the recommended checklist in FCMAT’s report was provided by the district’s third-party legal expert.

So, the letter sent to parents includes:

– a change regarding reimbursements, which is partially based on information that FCMAT didn’t even have;

– the elimination of busing to neighborhood schools, which was not expressly recommended by FCMAT; and

– a recommendation regarding clustering, based on a legal analysis provided by the district to FCMAT, which has not been shared with the public.

Parents should be given the opportunity to question the true basis of these decisions, instead of being led to believe they are the direct result of FCMAT’s study.

Gillaspie said it is important for districts to involve those who are affected by changes in discussions before they are implemented.

“As we discussed, to implement program or transportation service changes, open dialogue, meetings, correspondence between the district and parents will be required to be ongoing, to assure transparency and a spirit of working together for the best welfare of each child,” he wrote in an e-mail. “I believe the district is committed to do this as a result of our studies.”

Do you believe the district is committed to open, transparent dialogue with parents in a spirit of working together for the best welfare of each child?

AUG. 2 UPDATE: FCMAT has denied my request for the third party analysis, reversing its previous opinion that it was a public document by now claiming that it is protected under the district’s attorney-client privilege.

Here is FCMAT’s response to my request for the analysis and emails between the district and FCMAT, which I received in an email today:

“Hello Theresa:

In regard to your request for document in connection with our nonpublic draft MDUSD Transportation Report, you asked in reference to page 22 who is the legal expert and requesting for a copy of that legal analysis. The special education legal opinion referred to in the nonpublic draft FCMAT report was provided to us by the district in our capacity as an agent for the district in studying and reporting on transportation issues. The district asserts its attorney/client privilege and we are not in a position to release that document under a public records request. If you intend to pursue this further, you need to deal directly with the district.

The same position applies to any attorney/client communication between the district’s attorneys and FCMAT with regard to the study and report. Accordingly, in providing you with copies of correspondence, including emails, we do not include any such communication as to which the district asserts an attorney/client privilege.

I will be forwarding to you in the near future the copies of email correspondence between FCMAT and MDUSD, as you requested, from April 2012 to present, except for any attorney/client protected material.

It is the practice of FCMAT that we do not comment on draft reports, they are subject to review, edit and comment by the district, prior to finalization and publication.

The MDUSD draft FCMAT transportation report was not released publicly by FCMAT and is not a public record. Mistakenly made public, which should have not been, due to the need for district staff to review for accuracy of data, findings and recommendations. This report remains a draft, no final conclusions have been made, and presently continues to be under review by the district, with there is no required timeline for completion.

When a final report is published on our website, it will speak for itself and FCMAT will have no comment. Any questions about the released report should be directed to the district that commissioned it.

Thank you

Bill
William P. Gillaspie, Ed.D.”

AUG. 8 UPDATE: According to the CAC blog, Superintendent Steven Lawrence says the FCMAT reports will not be on the Aug. 13 agenda: http://bit.ly/MQeISj

AUG. 9 UPDATE: I have received the following email from FCMAT’s attorney, explaining why FCMAT is denying my Public Records Act request:

“Ms. Harrington:

I am the attorney for the Fiscal Crisis and Management Assistance Team (FCMAT). I am responding on behalf of FCMAT to your continuing request for a copy of a memorandum sent to the Mount Diablo Unified School District by an attorney engaged by the District for a legal opinion. This memorandum was made available to FCMAT by the District in order that FCMAT could provide the management assistance which the District engaged FCMAT to perform. In our relationship with the District with regard to this engagement, we have been serving as an agent of the District.

The District maintains that the memorandum in question is a confidential communication protected by the attorney client privilege. After careful consideration, I have concluded that the District’s position is correct and, further, that only the District can waive the privilege and it has not waived it by making it available to FCMAT for the accomplishment of the purpose for which the attorney was consulted by the District. Accordingly, FCMAT will not produce this memorandum in response to your public records request. It is my understanding that, except for this memorandum and any communications between FCMAT and the District’s attorneys in the preparation of the transportation report FCMAT has been working on, you have already been provided by Bill Gillaspie of FCMAT all of the communications, including email, that you have asked for.

By separate email immediately following this one, I will be forwarding to you a letter addressed “To Whom It May Concern” at FCMAT, from the District’s General Counsel, Greg Rolen, dated August 1, 2012. This letter states the District’s legal basis for its position and it is in reliance on that position that FCMAT declines to produce the memorandum. If this is a matter that your publication intends to pursue further, you should consider the District to be the real party in interest and an indispensable party.

Frank J. Fekete
Legal Counsel
FCMAT”

Here is the letter Rolen sent to FCMAT: http://www.docstoc.com/docs/document-preview.aspx?doc_id=126421163

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