Panel Confirms 32 Special Education Law Violations by Darien Schools

If you have a question or concern about special education law, school administration, federal standards, or the overall rights of a student, please feel free to call the expert education law attorneys at Maya Murphy, P.C. in Westport today at (203) 221-3100 .

Though the initial complaint made by parents against the Darien school district was in 2013, 2014 continued be a busy year for special education news.

Darien was found to have violated special education laws, including the Individuals with Disabilities Education Act in at least 32 instances in 2013.

In February, an independent arbitration panel decided that Darien school administrators would not be given 2% raises. The Board of Education claimed that 2013's special education problems were reason to deny the request. The arbitration panel agreed that administrators should not be given a raise this year, although the reasons cited were separate from those argued by the school board.

Staff departures

Liz Wesolowski, former director of elementary special education, resigned in January 2014 to take a similar job in Shelton.

Former Special Education Director Deirdre Osypuk was placed on paid administrative leave in June of 2013 and later also resigned in January 2014.

"I am resigning as director of special education effective immediately," Osypuk wrote in her resignation letter to Interim Superintendent Lynne Pierson.

"As explained to you in my December 23, 2013 18-page response to the Gamm report, I inherited many problems," Osypuk said, referring to the administration under her predecessor, Robin Pavia.

In her Dec. 23 letter, Osypuk describes the culture change that she was hired to implement.

"The culture that existed prior to my being hired was one where a few insatiable, controlling, and intimidating special education parents were given preferential treatment and catered to in order to avoid costly litigation," Osypuk wrote.

Osypuk was later hired in Massachusetts.

Carleen Wood, assistant director of special education, resigned to take a similar job in Greenwich in August.

Judith Pandolfo retired early in June, having previously served as assistant superintendent, overseeing the elementary schools. However, an reorganization of district administration left her without a job.

Pandolfo took a leave of absence, but she was paid through the end of 2014. She will be on unpaid leave until her retirement begins on June 30.

Intervention

In April, some parents are asking state officials to take over special education unless Darien can provide evidence that it has been compliant with state-mandated mitigation measures, according to a recent complaint filed by attorney Andrew Feinstein.

"Darien has done virtually nothing to remediate the illegality revealed by the state and attorney Sue Gamm and has preserved in its policy of cutting parents out of the deliberative process," Feinstein stated in a letter to the state Department of Education dated Tuesday, April 15.

"The failure of Darien to comply with Ms. Gamm's recommendations for immediate action is a serious breach of the district's legal obligations and has been extremely harmful to a number of students with disabilities," he continued.

"It is high time for the state Department of Education to step in." At the time, Lynne Pierson said that she was "perplexed" by Feinstein's allegations and that it "seems to be without merit and based on inaccurate facts." Six-day schedule

In June, the Board of Education expressed frustration with the continuance of a six-day schedule program that left out special education students would continue as is for another year.

By keeping these children on a separate schedule from their peers, they have been forced to occasionally miss certain classes, such as physical education, art, music and library - classes known as "specials." Parents said they were told to sign a release form last year to allow their children to miss these classes because the new six-day routine did not mesh with the Individualized Education Plans, or IEPs, previously developed for a five-day schedule.

An IEP is the legal document that each student with a disability develops with staff members and parents. It outlines the services to be provided and various goals and objectives to be achieved.

At the time, Betsy Hagerty-Ross, school board chairman, expressed frustration with the path taken by the prior administration leadership.

"I guess I'm a little disappointed," she said. "We were told this would work for special education children, and we've failed them again. I know I'm putting headlines in the paper, but we need to get this fixed." SESS

The Special Education Student Support Facilitators, are new positions this year throughout the seven public schools in Darien which oversee the implementation of the changes to the special education department while reporting to special education ombudsman John Verre.

Praise from the state

On Aug. 25, the state Department of Education praised the school board for taking steps to correct issues with its special education services a year after the district was found in violation of state and federal regulations. In the letter from Charlene Russell-Tucker, the state BOE's chief operating officer, the Darien school district was found to have satisfactorily completed corrective actions ordered by the state last July and September. Russell-Tucker also said that Darien had "voluntarily undertaken additional activities" to address remaining issues of non-compliance and established "a solid foundation for future provision of special education and related services in the district." Excess Cost Audit

The Board of Finance oversaw a special audit of Darien's excess cost submissions and initial findings were presented at a special meeting in November.

An excess cost submission is money the state reimburses a district for special education-related expenses that surpass the per-pupil cost by 4.5 times. Federal money is given to state governments, which then divvy up the funds to local districts. The audit uncovered two key problems with the district's excess cost submissions: the state only funded 73% of Darien's total excess cost submission during the school year in question; the district applied for $289,000 in services it didn't deliver, but the audit findings estimated that the district only received $210,000.

The auditor reported that most of the $210,000 was found in salaries paid to general education teachers. For example, if a teacher had 25 students in her class and one of them was in special education, the district would submit 4% of that teacher's salary and benefits - 1/25th - to the state for reimbursement.

Zagrodzky said the state informed the town that this practice was not allowed, though he did not indicate whether this practice was legal. State guidelines allow districts to get money back for a teacher's salary only if that teacher provides significant individualized or small group instruction.

The other key problem dealt with language written into children's IEPs. Attorney Gamm first reported that IEPs had "up to" or "as needed" written into them to indicate the number of service hours to be delivered to a student. For example, an IEP would read that a student was eligible for "up to 20 hours of physical therapy per week," when the student often would only get a few hours per week or none at all.

The audit confirmed what Gamm suspected - the district was submitting to the state the maximum number of hours on the IEP, regardless of whether the services were even delivered to students at all.

Some questioned why key administrators were not interviewed for the purposes of the audit, including former Schools Finance Director Dick Huot, former Superintendent Steve Falcone and former Assistant Superintendent of Elementary Education Judith Pandolfo. Following the meeting, Board of Finance member Jon Zagrodzky, who oversaw the audit, told The Darien Times those former district employees would be contacted before the final report was released.

Questions also arose about some school employees who had resigned being listed as providing services on IEP's for some Darien students, among other service questions.

However Board of Finance members and the auditor pointed out the special audit was a financial one only and a service audit would have to be initialized by the Board of Education. The Board of Education has not commented on the audit's findings since the November meeting.

If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.

For continuous access to the legal world, follow us on Twitter and LinkedIn. We offer the latest updates on caselaw and legal news. In addition, informational videos are available for your convenience on our YouTube channel. 

Source- Susan Shultz, Special Education, Darien Times (Connecticut), Jan. 8, 2015, at 1A