It’s a New Year, So Sue Me

Published on January 6, 2010 by Jennifer Laviano

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Getting school systems to either fund additional special education services, or to reimburse parents who pay for necessary services themselves, has always been an uphill battle.  The reasons are numerous, but money is without question at the top of the list.  That’s nothing new.  However, over the years, most reasonable school district lawyers, and special education directors, have come to realize the practical realities of hashing out legal disputes, as opposed to settling the case with the parents.

Often, the expense to both the school system and the parents to litigate the case will exceed the cost of the requested service or evaluation.

It simply doesn’t make any sense for either side to take those risks when an amicable resolution can usually be reached, which typically involves both parties making some compromises.  For my part, I spend a great deal of time working with my clients to help them learn to pick their battles, and to see the “big picture” instead of focusing on minor issues that are ultimately of little consequence.

Don’t get me wrong…there have always been, and there always will be, those cases that just can’t be settled.

Sometimes the principle involved outweighs financial considerations.  Other times the placement or services requested are expensive enough that it’s worth the risk to both the parents and the district to “roll the dice” on a Due Process Hearing.  And, sadly, there are those situations where the emotional investment of one or both parties is so strong that rational decisions are not being made…which is a nice way of saying that the parents and special education administrator hate each other so much that they can’t see anything other than each other’s head on a platter.

Such intractable situations make up the vast minority of cases, in my experience.  Of the hundreds of special education cases I’ve handled over the years, it’s fair to say that most disputes can be, and are, resolved without full litigation.

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But something is changing lately, and it should trouble anyone concerned about the rights of children with disabilities in our public schools.

Most attorneys who practice special education law on behalf of families use several formal opportunities (like Mediation) and informal ones (like discussions with the school board’s lawyer) to try to resolve a case, often before even filing for a Due Process Hearing.  Personally, my view has typically been this:  if a case is likely to be settled, let’s do that before either side has spent a ton of money on attorneys’ fees.

Once a party has spent a lot of money on their lawyer, it’s that much harder to focus on the disputed services, and with good reason.

Parents reasonably question why they are being offered the very IEP they have been requesting for some time, only because now they have a lawyer in the room.  It doesn’t seem fair, and it’s not.  Since it takes a good deal of time, and therefore money, to draft the Due Process Hearing complaint for filing, my perspective has usually been that it is more productive to try to settle the case before initiating the Hearing.  So, unless there is very pressing need to file first (which of course does happen), my practice of trying to “make nice” one last time before litigating has been an approach that has worked since I first started practicing.

However, in this New Year, I am seriously thinking about changing it.

This is because recently, and more and more often, I’ve seen an utter lack of genuine, good faith negotiation on the school districts’ part.  This has happened to clients of mine in completely different parts of the State, with a wide array of school districts, and with different law firms who represent them.  At this point, I think it’s fair to call it a trend.  Some of the “offers” we’ve been getting have been so ridiculous that they border on laughable.

Can you repeat that please?

It’s not just that some cases haven’t settled that troubles me; that happens.  It’s the attitude.

The mood I’m encountering “out there” in IEP Meetings and Mediation is becoming increasingly hostile.  Hey look, it’s never been a love-fest.  I don’t know a lot of special education directors who are terribly happy to see me in any event; it’s an adversarial process and there’s a level of frustration, resentment, and even disdain that has always existed when parents are represented.  It’s not how I am treated that has changed; its how my clients’ concerns are roundly dismissed with two words:  “the economy.”

Anyone who is paying attention is obviously aware that the still sluggish economy is coloring the decision-making of any entity that has a budget.  It’s very hard to go in to a district arguing for additional services when dozens of educators’ positions have recently been eliminated.   I get it.  But I can’t help but feel that many administrators are using the poor economy as if it’s a “get out of jail free” card for failing to comply with IDEA.

The current financial climate seems to have pushed us into a special education backlash.

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Resentment on the part of some educators towards parents of children with special needs who have had the audacity to exercise their civil rights has been building for some time.  I talk to enough teachers, and hear enough “office chat” while waiting for meetings in the halls of our public schools, to know that.  The system creates a dynamic whereby parents end up being the functional enforcers of the IDEA…and more than a few administrators are sick of having to be so careful about how they handle special education students, and their parents.  They are sick of the paperwork, sick of the tricky procedural safeguards which many see as “mere technicalities,” and sick of being second-guessed by people like, well, people like me.  They have wanted to tell us all to pound sand for years, and now the poor economy is giving them a handy excuse.

If I thought for one minute that this approach was actually saving school districts money, it might feel less discriminatory.  But it doesn’t.

It might also feel less retaliatory if I were receiving resistance from districts only on those marginal, “judgment call” kinds of cases.  But even on cases which are clear, where the school district should genuinely be grateful that they have the opportunity to resolve the case, rather than have to answer for what they’ve done, or failed to do, we’re getting “nuisance value” offers.

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The message being sent by many special education administrators is that they’d rather be ordered to provide the service than do it voluntarily.

They are practically screaming:  “Take it or leave it.  You don’t like it?  So sue me!”

To that I say:  “be careful what you wish for.”

4 Responses to It’s a New Year, So Sue Me

  1. Rochelle Dolim
    January 7th, 2010 | 1:28 pm

    Why should schools settle when they are allowed to outvote and outlitigate families to the point of bankruptcy? It isn’t their money … it’s the taxpayers; who happen to not have any say in how their money is being misused.

    Sadly, it’s not the child’s needs that are the primary consideration anymore. It’s what any one district personnel says is the child’s circumstances … usually the one that m akes things easiest on the school without regard for the ramifications to the student.

  2. SR
    July 19th, 2010 | 4:27 pm

    As a parent and teacher I have a first hand account of districts and SPED. Not to mention my wife is a Speech Pathologist. Forgot to mention my kids (both SPED) are in the district I teach in… My daughter has learned to read because my family has spent 25k over the last two years on a specialized reading program outside of school. The school system has a “balanced reading program..” Whatever that is… We have been to mediation and recovered some money for her reading. We have asked for more after getting a report that stated she needed this reading instruction by an experienced clinician. Incidently the town paid for this report that said she neede this specific instruction. Long story short, the district admin hates us. We had to endure intentional delays and now a refusal to mediate. Screw ’em now. I’ll refinance just to get a hearing. Maybe the district will chicken out. They hope we’ll go away. So, I will pay, the taxpayers will pay and either way my daughter will become a reader. :)

  3. Lisa
    August 6th, 2010 | 12:42 pm

    I’m a school psych in CA and I am worried about how I will be able to comply with IDEA, especially the timelines, in the coming school year. Our dept. has laid off 6 of 17 psychs. With no reduction in the number of kids in special ed, we are all facing giant caseloads. The ideal caseload, according to NASP, is 1 psych per 1,000 students; we are now at 1:1750.

    I have tried to convince our director, school board, and parent advisory committee to special ed that firing psychs is not a cost-saving measure, as increased litigation / settlements that result from blown initial and triennial IEP deadlines.

    I do wish that special ed parents would go some ways towards recognizing that while their child may not get everything the parents believe s/he needs, there are many, many gen ed students who are also receiving sub-par educations. Is that right? Heck no. But insisting on Cadillac plans for the lucky few with IEPs when the district as a whole is taking the bus does not further the PR objectives of special ed parents. ALL kids deserve a good education, and ALL students have to sacrifice when the economy goes south.

    Wouldn’t it be nice if Halliburton or Goldman Sachs had to cope with the austerity measures our districts and students face???

  4. Jennifer Laviano
    August 6th, 2010 | 8:36 pm

    Lisa…thank you for your input, as I am always encouraged when I learn that educators are reading my blog. And you couldn’t be more correct that it is not a cost-saving measure to blow initial or triennial evaluations deadlines, not just because of potential litigation, but because of the likelihood that the costs of services increases for students who have not received early or proper intervention. I do have to take issue, however, with your referring to those who have IEPs as the “lucky few.” I have yet to meet a parent whose dream for their child was to have them labeled as a student requiring special education; in fact, the reverse is usually true. And while you’re right that parents of children with special needs need to recognize, just as do parents of children without special needs, that there are priorities that a school district must make and they can not meet all of the students’ needs all of the time, I have to say that most of the parents I encounter aren’t looking for Cadillacs, but rather Chevy’s with an engine. It’s also hard for many of my clients to understand why their kids are being denied the most basic of services (e.g. speech and language support for a child who clearly needs it) when the district is spending hundreds of thousands of dollars on a football program, for example. I always encourage my clients to place their disputes in perspective (see my blogs on Seeing the Forest for the Trees, etc.), but I wonder how the parents of regular education students would react if they were continually faced with comments like “we only have to give your child a basic education” or “we aren’t required to provide the best, only an appropriate program.” Usually parents with children with IEPs hear that as they pass under a sign emblazoned on the wall of the building stating that the mission statement of the school is to provide the “best” program designed to “maximize the potential” of their students…but apparently only for those without IEPs.

    Sorry, I went off a bit there, but I hope that you can see my point. I do genuinely appreciate yours, and that you’re following. Best, Jen

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