Parents Fight Changes in Special Ed

An effort by the Los Angeles Unified School District to offer special education services at public schools rather than pay for care at more costly private schools and agencies has helped trigger a wave of litigation, primarily from parents in West Los Angeles and the west San Fernando Valley.

A growing contingent of parents is dissatisfied with the shift toward in-house services, an approach advocated by Roy Romer shortly after he was named district superintendent two years ago. Partly as a result, Romer said, the number of requests for special legal hearings to resolve disputes has doubled since 1999 to nearly 1,000 annually.

The district is legally obligated to tailor an education plan to each of its 86,000 special education students who have disabilities ranging from traumatic brain injury to auditory processing difficulties. When a parent and the district disagree over a plan, either can request mediation or a hearing before a state officer to settle disputes.

Some parents and attorneys say school officials purposely are denying services to cut costs, knowing that few parents have the resources to hire an attorney to challenge the district.

“The public system doesn’t have the tools, the trained staff or the capabilities to serve these kids,� said Raja Marhaba, a Granada Hills parent who has recently hired a lawyer to attain private services for her two children. “There are kids falling through the cracks.�

The district now spends about $145 million a year on outside contractors and private schools for special education services that are unavailable in district schools. That’s more than double the amount paid in 1997. The costs are worrisome to a cash-strapped district that earlier this year scrambled to make cuts--even increasing class size in some grades--to avert a budget shortfall.

District officials say they will soon be able to provide better special education services within public schools at a far lower cost. Moreover, they say, a federal consent decree requires that the district accommodate more special education students in regular classrooms; a massive initiative is already planned to move students out of special centers and into the mainstream.

Romer said some parents misinterpret the district’s obligation to provide a “free and appropriate public education� under federal law to mean they can garner all the services for their children that they see fit.

“We can’t allow a system to develop where there’s a cottage industry of suing the district,� Romer said.

One reason for the rise in the number of hearings is that under Romer the district has limited referrals to private schools that aren’t under district contract.

Andrea Lorant said that policy leaves her in a bind. What the district is offering her son is “free and public,� she said, “but it’s not appropriate.�

She said her 14-year-old son, David, who suffers from Tourette’s syndrome, attention deficit hyperactivity disorder and obsessive-compulsive disorder, was given a new lease on life when he was admitted, at district expense, to a private academy in Sherman Oaks three years ago. There, he made new friends and got straight A’s one semester.

At that time, Lorant said, the district agreed during mediation that it couldn’t provide services that David needed in its public schools. In May, however, the district notified her that it could serve David in-house, offering him a placement at El Camino Real High School, a public school in Woodland Hills. It no longer wanted to reimburse the $18,000 a year tuition for the private school, but was offering extra help with schoolwork, sessions with a counselor and a special P.E. program.

She refused the offer and now faces a hearing Sept. 26.

“If I put him at El Camino, he would be in classes with 34 to 38 students as opposed to five to eight like he is now,� Lorant said. “He really struggles socially. It would be a huge challenge for him.�

Mainstreaming Students

Many parents favor mainstreaming their disabled children in regular public schools, but they say the district first needs more one-on-one therapists, classroom aides and smaller classroom sizes. District officials say L.A. Unified suffers from a national shortage of speech and language therapists, which has contributed to the rise in requests for hearings.

The district has no comprehensive record of how much money is spent on such special education litigation. But a disproportionate number of disputes appear to arise in L.A. Unified compared with other districts in California, according to data kept by the California Special Education Hearing Office.

The district enrolls 13% of the state’s disabled children, but accounted for 34% of all hearing requests in California last year. The greatest leap occurred in the 2000-01 school year, when the district garnered 37% of the requests statewide compared with 23% the previous year, when there was no private school policy.

More than half of the requests in L.A. Unified come from the more affluent areas of West L.A. and the West Valley. The three subdistricts covering those areas (districts A, C, and D) account for 23% of L.A. Unified’s special education population, but accounted for 62% of the district’s 934 hearing requests in the 2000-01 school year.

Parents’ Demands

District officials complain that heavy demand for services from these parents takes services away from poorer parts of the city.

“These [low-income] parents don’t know their rights,� said Regina Davis, a Title I coordinator at Budlong Avenue Elementary School in South Los Angeles. “We get parents from Mexico and they don’t have a clue. Some of them can’t even read their own language. They need advocates.�

Carol Graham, a Santa Monica lawyer who has been representing disabled children in the district for six years, said the inequity was not surprising.

“On the Westside, the parents are more educated and they’re willing to fight,� she said. “Parents elsewhere don’t realize there are lawyers who will take no retainer [fee]. I charge very little or nothing because when we prevail, the school district pays us.�

Experts say the litigation in Los Angeles Unified stems in part from ambiguities in the federal law.

The sticking point is how to define “appropriate� education for special education students. A 1996 federal court ruling on what level of services a public school district should provide said it doesn’t need to be a “Cadillac.� Instead, public schooling should be the equivalent of a “Chevrolet,� the court said.

But school officials--and even some parents’ attorneys--say that L.A. Unified in the past sometimes gave parents “Cadillac� services. Now the district is trying to correct what it sees as a costly imbalance.

“You’re not going to get more than an equitable education,� said Donnalyn Jaque-Anton, assistant superintendent for special education in L.A. Unified. “It’s not about can I make you more eligible than others for Harvard.�

Such parents as Elyse Wagner of Valley Village scoff at the district’s reasoning. Wagner is sometimes moved to tears when she talks about her bureaucratic wrangling with the district. She has spent the last 18 months trying to get vision therapy for her 13-year-old autistic son Michael, who has been in special education since third grade because he has trouble processing information he reads.

The district suggested she send her son to one of three agencies that contracts with the district for help, but she says the district declined to pay for the services, and the only appointments the contractors had conflicted with Michael’s school schedule. Wagner says she will have to seek a hearing to get what her son needs.

“We have had nothing but fabulous relations with the district until we hit this one issue,� she said. “Rather than spend money on children, the district would rather spend money on lawyers.�

L.A. Unified is not alone in grappling with the rising costs of special education. Prompted by the growing demands of savvy parents, shortfalls in federal funding and rising enrollments, many school districts in the country have taken steps in recent years to make special education more effective and efficient.

Over the last two years, New York City’s public school system has reduced the number of students in special education programs, reasoning that many were referred there because they weren’t being taught appropriately in regular classrooms. The number of special education students fell from 160,000 to 120,000, special education funding was capped and more money was directed toward general education.

A spokeswoman for the school system said litigation has not increased, because the schools added services to ease the transition of students into regular classes.

Legal Costs Soar

In Los Angeles Unified, the swelling ranks of special education students have sent overall costs soaring and probably contributed to rising litigation as well. Today, the district spends $1.2 billion on special education, or 13% of its overall budget of $9 billion. Seven years ago, half the students were enrolled and it cost half as much.

The federal government has not helped as much as expected. It had pledged to pay 40% of a school district’s special education costs when the Individuals with Disabilities Education Act was enacted in 1975, but it never allocated the necessary funding.

This is especially problematic in districts with huge enrollments, like L.A. Unified. Last year, the federal government provided 6% of L.A. Unified’s special education budget, or $57 million, but it covers an average of 17% of special education costs nationwide.

The increase in litigation, in itself, is costly to the district. Most cases are settled before the hearing officer can make a ruling, but the district often must pay opposing attorney’s fees. These fees alone climbed from $547,000 in the 2000-01 school year, to $1.2 million last year.

In addition, the costs for the district’s own attorneys--both in-house and outside lawyers--exceeded $1.5 million last year, said Harold Kwalwasser, general counsel for L.A. Unified.

Adversarial Approach

Opposing attorneys say the district has made matters worse by taking a more adversarial approach over the last two years. It has doubled in-house special education lawyers from three to six and has plans to hire two more. It also has recently increased from one to five the number of outside law firms contracted to litigate special education disputes.

“L.A. Unified used to bend over backward to try and resolve things,� said Graham, the Santa Monica lawyer. “But now it’s like a pendulum that has swung the exact opposite way ... I think it has gone too far.�