Wrightslaw - The Special Ed Advocate Newsletter, April 18, 2000

1. News Break! OSEP Announces States To Be Monitored

OSEP announced that these states will be monitored in 2000-2001:

* Connecticut
* Delaware
* District of Columbia
* Georgia
* Idaho
* Illinois
* Iowa
* Michigan
* Minnesota
* New Hampshire
* Puerto Rico
* South Carolina
* Texas
* Wyoming
* Virginia

(Source: http://www.dssc.org/frc/mon_res.htm Thanks to Doreen who sent us this news item)

"STATES IGNORE SPECIAL ED LAW"

Why is this important? On January 23, subscribers to The Special Ed Advocate received an "Alert" about the breaking AP news story: "STATES IGNORE SPECIAL ED LAW" which found that:

"Many children with disabilities are getting substandard schooling because states are not complying with federal rules on special education . . ."

Because the U. S. Department of Education doesn’t require states to comply with the law, "parents often must sue to enforce the law . . ."

NCD REPORT: ALL 50 STATES OUT OF COMPLIANCE

On January 25, newsletter subscribers received an "Alert" when the National Disability Council released the long awaited IDEA Compliance Report.

After reviewing Monitoring Reports on the states between 1994 and 1998, NCD concluded that all 50 states were out of compliance with the IDEA:

"Every State was out of compliance with IDEA requirements to some degree; in the sampling of states studied, noncompliance persisted over many years."

When the U. S. Department of Education defaulted on their obligation to enforce the law, what happened? The burden of enforcement fell on the shoulders of parents of disabled children:

ENFORCEMENT OF THE LAW IS "BURDEN OF PARENTS"

"Enforcement of the law is the burden of parents who too often must invoke formal complaint procedure and due process hearings, including expensive and time-consuming litigation, to obtain the appropriate services and supports that their children are entitled under the law."

NCD noted that most parents of disabled children are ill-equipped to enforce the law against state department of education and local school districts, especially "when they or their publicly financed attorneys choose to be resistant."

2. Using The IDEA Compliance Report

These findings led to a firestorm of criticism about the U. S. Department of Education’s failure to ensure that states comply with the law.

We were shocked, then angry. Not one state was compliance with the law?

Experience told us that after a few months, important information -- like the NCD findings in the IDEA Compliance Report -- are often forgotten.

We want people to USE the IDEA Compliance Report to improve accountability, and place pressure on states to comply with the law.

How could we ensure that parents and decision-makers don’t forget the IDEA Compliance Report? We decided to place the entire NCD Report on the Wrightslaw site.

When issues arise about monitoring and compliance with the IDEA, we will remind subscribers about the IDEA Compliance Report.

NEXT ROUND OF MONITORING

When the Office of Special Education Programs (OSEP) released the list of 15 states that they will monitor during 2000-2001, we learned that OSEP no longer routinely monitors States on a revolving basis. Instead, OSEP selects States based on their history of implementing the law.

What will happen on this next round of monitoring?

Will OSEP take action against states that refuse to comply with the law?

Will states that refuse to comply with the law be referred to the Department of Justice?

Will states that refuse to comply with the law have federal funding cut?

We’ll keep you posted.

3. Get Your State's Monitoring Report (Utah And North Dakota Added)

Download a copy of your State’s Monitoring Report from the U. S. Department of Education site

Recently, new Reports were added for Utah and North Dakota.

UTAH

NORTH DAKOTA

The MASTER PAGE for all State Reports

4. Case Study: Enforcement By Parents

When the IDEA Compliance Report was released in January, Pete was working on a case that illustrates how these issues play out in real life.

Nearly three years ago, the parents requested a due process hearing. After several years of special education, their dyslexic son couldn’t read. The parents withdrew their son from the public school and placed him in a private school that specializes in teaching dyslexic children how to read, write and spell.

After an adverse decision by a hearing officer, the parents appealed to a state level Review Officer. The Review Officer found that:

* the public school program was NOT appropriate,
* the child was receiving an appropriate education in the private program,
* the parents were entitled to reimbursement for their son’s education.

End of story? Not likely.

SCHOOL DISTRICT REFUSES TO IMPLEMENT DECISION

Citing their right to appeal, the local school district refused to implement the Review Officer’s decision. Months passed. The school district did not reimburse the parents, nor did they pay the child’s tuition.

The parents wrote to the Virginia Department of Education, advised them about these problems, and asked for their help in getting the local school district to implement the Review Officer’s decision. After an investigation, the Virginia Department of Education directed the local school district to implement the Review Officer’s decision.

SCHOOL DISTRICT REFUSES TO OBEY DIRECTIVE FROM STATE

The local school district refused to obey this directive from the Virginia Department of Education.

STATE REVERSES COURSE

A few months later, the Virginia Department of Education abruptly changed their position, withdrew their support, and refused to implement the Review Officer’s decision.

PARENTS REQUEST DUE PROCESS HEARING AGAINST THE STATE

The parents requested a special education due process hearing against the Virginia Department of Education for their refusal to implement the Review Officer's decision. You can read Pete’s letter requesting the hearing, which includes the history of the case at the Wrightslaw site.

Briefs were filed with the Hearing Officer and oral argument was held. The brief that Pete filed with the Hearing Officer.

ORAL ARGUMENT: STATE WON’T ENFORCE THE LAW

During oral argument, the assistant Attorney General claimed that Federal Regulation 514(c) was invalid. Virginia had never enforced this part of the law and did not plan to do so.

PETE CONTACTS THE FEDS

While the case was ongoing, Pete contacted the U.S. Department of Education and the U. S. Department of Justice. After sending them the transcript of oral argument and other documents, Pete asked them to intervene and require Virginia to comply with the law. Pete’s letter to the U. S. Department of Education

HEARING OFFICER ISSUES FAVORABLE DECISION

Before they received a response from the U. S. Department of Education, the parents received a favorable decision from the hearing officer. You can read this decision

The Virginia Department of Education did not appeal this decision.

After the timeline for appeal passed, the parents hand-delivered a letter to the Virginia Department of Education, asking that they comply with the Hearing Officer’s order.

OSEP WEIGHS IN

In a letter dated March 27, Judith Heumann, Secretary of Office of Special Education Programs, wrote a letter to the Virginia Department of Education, advising that "If VDOE will not comply with 34 CFR 300.514(c), we will have no choice but to institute appropriate enforcement action, which may include a referral to the U. S. Department of Justice to initiate a lawsuit against the State."

Read the full text of Dr. Heumann’s letter

STATE DEPT OF ED AGREES TO COMPLY WITH THE LAW

In a letter dated March 28, the Virginia Department of Education agreed to pay the child’s tuition for this year and while the case is pending.

Several days later, the Virginia Department of Education did pay the child’s tuition. End of story? Not likely!

5. Wrightlsaw Advocacy: Shine A Bright Light

Virginia’s record of compliance with IDEA is dismal. Read the "Summary of Findings" from OSEP’s last Monitoring Report of Virginia.

But parents and parent advocates are not powerless. What can we do?

IT’S TIME TO SHINE A BRIGHT LIGHT!

At Wrightslaw, we decided to shine a bright light on the Virginia Department of Education’s chronic and persistent failure to comply with the law -- and the negative impact this has on children with disabilities and their families.

DATABASE OF VIRGINIA DUE PROCESS AND REVIEW DECISIONS, OTHER
DOCUMENTS

As time permits, we will arrange for the posting of Virginia Due Process and Review decisions, pleadings, Letters of Findings, and other Virginia documents on the Internet. Presently, you will find Virginia decisions, pleadings and other documents in these directories on the Wrightslaw site at:

https://www.wrightslaw.com/virginia/

https://www.wrightslaw.com/law/caselaw/

https://www.wrightslaw.com/law/pleadings/

6. Grassroots Advocacy: A Call To Action (May 6, 2000)

WHAT? A CALL FOR ACTION: Advocating for Students with Disabilities in Virginia 2000

WHEN? Saturday, May 6, 2000, 9:30 a.m.- 4:00 p.m.

WHERE? Piedmont Community College, Charlottesville, VA

A CALL TO ACTION is designed to unite advocates for children with disabilities in Virginia.

The goal of A CALL TO ACTION is to refine advocacy strategies that will lead to positive changes in the Virginia education system. The agenda includes discussion of targeted issues and development of a statewide PLAN OF ACTION.

WHO? A CALL FOR ACTION is for parents, advocates and attorneys who represent children. It is not intended for persons employed by state or local education agencies or attorneys who represent schools. Parents of students with current IEPs who are also employed by a school district or VDOE may attend if their representation is limited to student advocacy.

ATTENDANCE IS LIMITED.

FACILITATORS:

* Philip BARR, Esquire;
* Candace CORTIELLA, Parent;
* Mary HART, Esquire;
* Malcolm HIGGINS, Esquire, Parent;
* Maureen HOLLOWELL, Parent;
* Darrel Tillar MASON, Esquire;
* Jamie RUPPMMAN, Parent;
* Denise SWANSON, Parent;
* Pete WRIGHT, Esquire

For more information, call 757-461-8007.

7. Subscriber Email

Lately, some subscribers have expressed the mistaken view that we owe them individual answers to questions they submit. Some subscribers get testy when we don’t provide this kind of personal service. Others get testy when they receive a non-personalized email response from the webmaster. (The email from webmaster discusses common problems and questions, and includes suggestions and links.)

It’s time to repeat our policy about email correspondence.

We welcome email with questions or comments for THE SPECIAL ED ADVOCATE newsletter. We try to read all our email, and enjoy doing so.

But we can’t answer most of these messages personally due to the incredible volume. If we tried, we would never have time to practice law, see clients, do research, write articles, publish newsletters, write books, not to mention any life we have outside of work.

From time to time, we select questions to answer in the LETTERS TO WRIGHTSLAW column. These letters are selected for the benefit of our general readership.

We are not a service bureau, consultants, or a help desk. Pete is an attorney; Pam is a psychotherapist. The information at the Wrightslaw site is designed for a mass audience.

We cannot provide advice about individual problems, how to resolve disputes with school districts, or whether a child’s special ed program is providing FAPE. We cannot provide an analysis of a child’s test scores sent by email. We cannot do legal research. We cannot provide information for college term papers.

Thanks for understanding this distinction – and keep those emails coming!