It was a bittersweet moment for many on all sides of the special education situation when the state reported on July 18 that Darien violated state and federal laws, as first reported on DarienTimes.com.
While the concerns expressed by the 25 parents who sparked the state Department of Education’s investigation appear to have been vindicated, many questioned the state’s investigative methodology, such as what it examined and the resolutions it required Darien to undertake.
Superintendent Steve Falcone, however, appeared optimistic that the schools are now heading in the right direction.
“We will be moving quickly to implement the state’s recommendations, and have already begun that process by retaining Terri DeFrancis who will be working diligently throughout the summer,” Falcone stated in a release.
Charlene Russell-Tucker, chief operating officer for the state Department of Education, stated the schools’ materials were “overly restrictive, inaccurate, noncompliant and/or [included] incomplete guidance.”
The 11-page state report showed non-compliance in 10 specific areas that were related to documents supplied to the state by the schools, and six additional areas where the state recommended the schools clarify the wording of some documents to better reflect the law.
State investigators ordered the district to report to the state until May 16, 2014, as Darien implements the “required corrective actions,” which include revising “any noncompliant policies,” developing training materials with state oversight, and providing staff training along with evidence of training.
The state’s findings did not address what many view as the most egregious of allegations, which involved decisions about children’s education plans being made without parental involvement. Parents claimed special education administrators were denying and restricting services from children to save money, as part of a district-wide “culture shift” that began when the schools hired Deirdre Osypuk to run special ed last year.
An examination of thousands of printed emails shows that one of Osypuk’s goals was to “stop the floodgates” of services that parents had been getting by initiating this culture shift.
A parent recently told The Darien Times that schools paid for a private school that her daughter was not attending and also sent a bus to her house that idled in her driveway for 20 minutes a day and left without her daughter.
“I wanted to thank you for helping present our department’s vision,” Osypuk wrote to her three assistant directors in August of 2012. “We are slowly inculcating a culture shift which will take time and united support from us and our colleagues. Next up… staff.”
Osypuk was placed on paid administrative leave two weeks before her contract expired, at which point she signed a new contract — receiving a 1.7% raise while continuing to not work. She remains on paid leave while the district searches for an interim special ed director.
Andrew Feinstein, a lawyer who has represented the parents in their complaint to the state, spared no words in his scathing criticism of the state’s conclusion, calling the investigation response “dilatory and inept.”
Feinstein also challenged the state’s notion that Darien’s retention of DeFrancis was an “appropriate response” to the state’s findings, which Feinstein said “is pathetic and unacceptable.”
“The state Department of Education found widespread, systematic and serious violations of the rights of students with disabilities, conducted in response to a plan developed and implemented from the top,” Feinstein said. “The state needs to do far more than ratify the paltry initiatives of the Darien administration.”
The state’s response, which was signed by Russell-Tucker, indicated that this report was only part one of a two-part conclusion. Russell-Tucker stated that the second part would be due at “the end of summer.”
In an interview with The Darien Times, Falcone said he thought the second part would include information on whether the schools made “substantive changes” to individualized education plans, or IEPs, outside of the planning and placement team, or PPT. The PPT includes parents, teachers and other education professionals and works together to create a child’s IEP.
The state, however, did not indicate what its second part would entail. Russell-Tucker also did not note whether investigators examined IEPs to determine if any illegal activity took place.
State investigators examined “student records” of the children of the petitioners, along with records from 15 randomly selected students. It’s unclear what method the state used to choose the students, and it’s unclear what those records were. The state has not responded to questions for clarification.
With the second part due at the end of summer, some have indicated the need for quick action, as school begins on Aug. 26.
Debbie Ice, a parent and petitioner of the state, joined Feinstein in her disappointment that the state and the district have done little to address the most pressing concerns. The state was silent on what’s being done to determine whether children have been harmed as a result of these now-confirmed illegal practices, and whether these children would receive the needed compensatory education, Ice said. Staffing changes should also happen soon to reestablish trust with parents and ensure future legal compliance, she added.
“The appropriate response would have been to not renew [Osypuk’s] contract, hire another individual — only one — with knowledge of the law, get to work immediately figuring out compensatory education for the kids who have missed services, investigate aggressively IEPs, through IEP Direct, to determine if any documents have indeed been altered,” Ice said.
IEP Direct is the computer system that maintains Darien students’ IEP records. Feinstein condemned the state for not having examined the computer program, which would have shown if changes to IEPs were made illegally. It’s unclear if the state’s actions will clarify when its second report comes out.
At a July Special Education Advisory Committee meeting, parents asked Falcone to randomly audit IEPs, but he said he “didn’t know how” to do that. In a later interview with The Times, he said he had reviewed some IEPs, but declined to indicate the results of his probe.
He told the committee it would be more appropriate to ask the independent investigator, who is slated to be hired by the school board through its attorneys, Shipman & Goodwin, to do an IEP audit.
Yet questions remain over the method of choosing this investigator. Parent Kit Savage asked Betsy Hagerty-Ross, Board of Ed chairman, to allow parents to be involved in choosing the investigator, but Hagerty-Ross said her board was still trying to determine the best way to involve parents.
Shipman & Goodwin’s role has also come under scrutiny, as the firm routinely reviews special education training materials — the same items that the state has now said included illegal directives.
While it’s unclear whether Shipman & Goodwin reviewed the materials in question, the likelihood that it did could be high, some said, as Darien was required to implement corrective actions before this complaint surfaced. The schools have been out of compliance with federal law for the past three years, so the need for legal review could have been higher than normal under these circumstances, some said.
As part of the Individuals with Disabilities Education Act, or IDEA, the U.S. Department of Education created 20 compliance indicators for districts to adhere to when delivering special ed services. For three years, Darien has been out of compliance with providing adequate transition goals for special needs students going into high school, according to state data.
Transition problems, however, were not mentioned in state’s report, but have been a problem going back farther into the schools’ history. To fix this problem, state officials told Osypuk that Darien needed to investigate its transition practices and correct and legal inconsistencies, emails showed. Darien also needed to improve the accuracy of its reporting and its delivery of testing accommodations.
Osypuk then told Falcone in a July 2012 email that, to fix these problems, the state Department of Education had suggested actions that would “require training.”
If the training materials Osypuk apparently created as a result of an effort to bring Darien back into compliance with federal law were also found to violate federal law, then it raises several questions, some said, about the integrity of the district’s chain of command as well as the integrity of Shipman & Goodwin’s ability to vet training materials for legal accuracy before the training is implemented.
Hagerty-Ross has not responded to questions about any potential conflict of interest regarding Shipman & Goodwin’s role in choosing a third party investigator.
In a prepared statement, the Board of Ed chairman said her group “will closely monitor the implementation” of the state’s recommendations “through the work of Terri DeFrancis.”
“We are continuing to move forward on the actions approved at our June 25 board meeting,” Hagerty-Ross said. “Our focus continues to be the education and well-being of all the students of the Darien Public Schools.”
In addition to asking Shipman & Goodwin to work with the state to find an investigator, the Board of Ed also asked its lawyers to find an interim special ed director. This person would be responsible for implementing the training materials that DeFrancis will develop with oversight from the state, and would also be responsible for “appropriate disciplinary action for any staff members whose actions have been inconsistent with the law,” Hagerty-Ross said in June.
Since the state’s investigation did not indicate whether children were actually harmed by the directives in the illegal documents, parents have expressed concern that by the time a new director is appointed and the second part of the state’s investigation is complete, children will already be back to school.
Staffing changes at that point could disrupt an already crippled special education program, some said, which is currently being run by three people who will be subjected to the independent investigator.
Judith Pandolfo, assistant superintendent, Liz Wesolowki, assistant director of elementary special education, Laura Straiton, assistant principal of the early learning program, or ELP, and Luke Forshaw, Ox Ridge principal, have been cited by parents, along with Osypuk, as having participated in the “culture shift” that led to the complaint being filed.
When parents of special needs children disagree with their child’s education plan, or IEP, they have three due process options with the state — mediation, hearing, and procedural complaint. Two-thirds of the filings involving in-district schools this past year came from elementary school parents — eight from Ox Ridge, two from Tokeneke, and one each from Hindley, Holmes and Royle, according to state data.
Some of these could be the same parents filing more than once. Still, parent Savage asked the Board of Ed at the Special Education Advisory Committee’s July meeting about the lack of alarm when the district saw a rise in due process requests this year over previous years.
Board of Ed members responded by saying they don’t have access to that kind of data.
In their report, state investigators did not mention any of the information gleaned from a meeting they held in June where more than 100 parents of special needs children showed up to listen and share stories about problems with their children’s IEP — problems they were told by administrators were “clerical errors.”
Stories such as aides being taken away from children in wheelchairs, reading specialists being taken away from illiterate children, occupational therapists being restricted to children with severe needs, administrators ordering incorrect tests and blocking outside evaluations, were evidence, some parents have said, that the district illegally cut or denied services to save money.
As time slips by, if children have not gotten the services they need, compensating for time lost can be difficult, as more services are often required, experts said.
“You’re only six years old once,” said a Connecticut public school administrator.
Falcone said his office welcomes parent feedback.
“We also welcome and appreciate the candid input from our parent community because it is necessary and important for our school district to receive constructive feedback if we are to improve what we do on behalf of children,” he stated.
The superintendent emphasized the need to move quickly to develop training materials in concert with the state. Since Darien has been ordered to provide the state with new training materials at least two weeks in advance before the training is implemented, the window for DeFrancis to perform her work is roughly two weeks before school begins.
The state also extended its investigation beyond the federally mandated 60-day deadline, but never gave a reason for the extension. In Feinstein’s critique of the state report, he laments the investigators’ overall lack of attention to most serious of allegations, saying the state “offers no mechanism by which students can be made whole for these violations.”
“The parents have a number of serious options to force Darien to make the changes needed,” he continued. “We will be discussing those options in the coming days.”
Those options include the filing of numerous due process requests with the state, seeking a public hearing with the State Board of Education, or perhaps a class action lawsuit against the schools.