Not According to Plan: Special-Needs Students Falling Through the Cracks Force Absurdly Expensive Solutions

Donna McAllister arrived early to pick up her 10-year-old son, Lio, from elementary school just in time to see him bolt from his classroom and run down the hall crying. She followed and found Lio pressed against the elevator frame, trying to squeeze down as far as he could, clawing at the cracks where the doors meet the frame.

Lio has autism and suffers from severe anxiety attacks. When overwhelmed, he runs and hides, trying to find a place where he can shut out the world.

“Think fight or flight,” says Donna. “His instinct is not to fight at all — it's to get away.”

Previously, Lio managed his anxiety attacks at school by retreating to a “safe place,” a quiet spot under a desk, with drapes for privacy and a rug. But when a newly hired special-education teacher dismantled Lio's safe space and moved it without telling anyone (testifying later he didn't realize the importance of that specific spot), the parents say Lio's meltdowns increased.

From January to March, the school documented more than a dozen outbursts. But the parents suspect even more.

The parents say they watched their child regress, both socially and academically. Lio was afraid to go to school. Stressed out, he wet the bed.

“At home he would say, 'I want to escape. I want to escape,'” says Patrick McAllister, Lio's father.

After three years of struggling with the San Francisco Unified School District on how to best provide Lio with an education, the McAllisters sued the district.

Patrick McAllister personally served School Board President Rachel Norton with a subpoena at a board meeting. She raised her hands in the air as if he'd pointed a gun at her and refused to take it. Later, her lawyer told her that only worked in the movies. An administrative judge later squashed the subpoena.

The McAllisters accused the SFUSD of failing to provide Lio with a “free and appropriate public education,” commonly called FAPE, a federal law requiring schools to offer all children a quality education. Under the law, eligible children who need extra support get specialized services outlined in legally binding agreements called Individualized Education Programs, or IEPs. The McAllisters say Lio stopped receiving the support services agreed upon in his IEP.

“The more we asked questions about the IEP requirements not being met, the angrier they got with us,” Patrick says. “We were branded as problem parents.”

It got so bad, they say, during the third- and fourth-grade years, they pulled Lio out of Alamo Elementary School and placed him instead at The Laurel School, a $27,500-a-year private school that focuses on children with special needs.

The McAllisters want reimbursement for the money spent on private school and proper placement in a school that can accommodate Lio's needs.

While due process is arguably the most effective tool parents can use to hold schools accountable, it is a costly, time-consuming, and emotionally draining method that many parents see as a last resort. The McAllisters' frustration with the district, the communication breakdown, and the contentious back-and-forth illustrate what parents of children with special needs often face. SFUSD sees it differently. For its legal team, it's cut and dry: The district met Lio's needs by providing him with the best education possible, so it shouldn't have to pay for a private-school education when, according to the district, it wasn't necessary.

“Obviously, San Francisco believes it offered FAPE to this student or we wouldn't have gone to the hearing,” says Damara Moore, an in-house lawyer for SFUSD.

In December, administrative Judge Susan Ruff ruled against the district and in favor of the McAllisters on one of the eight issues. The ruling says the district failed to offer an appropriate behavioral support plan for Lio and will have to reimburse the family for $43,811 for the tuition of private school up to date. For the remainder of the school year, the McAllisters will pay $12,375 out of pocket.

The school district refused to comment further about the specifics of the case, citing confidentiality.

The McAllister case is one of 15 requests for legal action filed with SFUSD during the 2012-2013 school years.

Statewide, about 79 percent of the 3,194 cases filed last school year with the California Department of Education were done so on behalf of a student seeking due process hearings. Parents of special-needs children take on the district hoping to get reimbursed for money spent on private schools, private evaluations, and diagnosis, and for hiring extra support for their kids like therapists, tutors, and aides. Not all of those cases will make it to court. Many will be settled in mediation hearings beforehand.

But for those that do go all the way to court, the odds are stacked against them. The local school districts prevail about 63 percent of the time, with the student winning only 13 percent of the time, the rest being split decisions, according to 2012 stats. Communication breakdowns are often at the heart of special education disputes. Jargon, acronyms, convoluted laws, and bureaucracy all run rampant in the special-education world.

“You have to know how the system works,” says San Francisco Board of Education President Rachel Norton. “And that's unfortunate. We're trying to change, parents shouldn't have to know the magic word.”

At one point, Norton didn't know the magic word either. For years, frustrated with SFUSD, she sent her autistic daughter to private school. Norton's daughter recently returned to public school and finished her first year back at Washington High.

Special education is expensive business. Budgets are tight. Staffing is an issue. Other controversies have rocked the district in recent years. A state audit found hundreds of violations in the way SFUSD handled its special-education cases. And, most recently, the district was found to diagnose black children with behavioral problems at disproportionately high rates.

“Is every kid getting everything they need? No,” says Norton, “but this is the world we live in. I challenge you to find any district that does.”

Indeed: Problems with getting quality public special education are not unique to San Francisco.

In April, two parent-group associations filed a federal lawsuit against the California Department of Education, accusing them of failing to provide FAPE to children with disabilities at schools across the state. The groups want the Department of Education to enforce FAPE obligations at school districts, instead of just recording them and doing nothing.

Katy Franklin, chair of the Community Advisory Committee for special education in S.F., compared the Education Department's enforcement strategy to “batting the flies away instead of picking up the shit in the room.”

The lawsuit alleges that school districts spend tens of thousands of dollars in lawyers' fees to fight parents. One district cited in the lawsuit spent $80,000 in an unsuccessful attempt to avoid forking over $4,500 to reimburse the parents for the costs of an independent education evaluation.

Districts usually have private law firms on retainer to litigate if the case goes to due process. The playing field for parents is usually unfair. In an NBC Investigative report, it was found that SFUSD spent $460,000 in outside legal fees since 2010.

“A child's special education should not depend on the parents' ability to advocate for services,” Franklin says.

The McAllisters spent much of their life savings fighting the district. They risked a lot.

“It makes me want to throw up,” Donna says, thinking of all the money spent. “Sometimes when I'm writing a check to the bank, I think I'm going to pass out.”

Now that the judged ruled favorably for the McAllisters, they should get compensated for the nearly hundred thousand dollars in attorney fees and tuition costs. But how much money they actually get is still undecided. Right now, the district and the family's lawyer are negotiating over the fees.

So the McAllisters haven't prevailed yet. The district can appeal the decision, drawing both parties back into another lengthy legal proceedings. The decision to appeal could depend on the amount of fees the family's attorney requests, which the McAllisters estimate to be more than the tuition costs.

For now, Lio will finish out his time at Laurel and then go back to public school. The district and the McAllisters will have to create a new education program, one with the proper behavioral support, and then place Lio in the right school. A task easier said than done.

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