096-2005_ Action on Special Ed Lawsuit Postponed Until 1_3

CDCAN
CALIFORNIA DISABILITY COMMUNITY ACTION NETWORK
DISABILITY RIGHTS NEWS REPORT
#096-2005 December 29, 2005 - Thursday
Connecting people with disabilities & seniors to rights and unified action
1225 8th Street Suite 480 - Sacramento, CA 95814 916/446-0013 Fax: 916/446-0026
Marty Omoto - director email: martyomoto@rcip.com website: www.cdcan.us

Special Education Mediation Lawsuit
*Judge Holds Hearing - Delays Any Ruling On Case Until Jan 3
*Advocates Seek Order To Block New Special Ed Mediation System
*Dept of Education Says Implementation Must Proceed
*Thousands of Special Ed Students May Be Impacted

SACRAMENTO - A Sacramento County Superior Court judge delayed until January 3 (Tuesday) ruling on a lawsuit filed by parents and advocates of special needs students to block implementation of a new state special education mediation system due to take effect on January 1. The new hearing is scheduled for Tuesday, January 3, 2006 at 1:45 PM at the Sacramento Superior Court in downtown Sacramento. The case number is 05AS05621 and a copy of the lawsuit is on the CDCAN website at www.cdcan.us. While the delay seemed to be a slight advantage for the California Department of Education, the judge gave no indication on how the court intended to rule on the case, and advocates remain hopeful.

At stake is how California implements special education fair hearings including cases that can be resolved using mediation, impacting thousands of children in special education. About 11% of the state's total kindergarten through 12th grade students or nearly 700,000 students ages 22 years old and under are in California's special education program - the largest in the nation.

The lawsuit seeks also to stop at least temporarily, the California Department of Education from ending on January 1, 2006, the special education mediation system used by California for over a decade and run by the University of the Pacific's McGeorge School of Law. Advocates claim that the State has failed to implement a transition that would not harm thousands of special education children. Advocates also claimed in their lawsuit that they have met with Department of Education officials for several months to address concerns regarding mediation without any success.

What Happened In Court December 29
The lawsuit named Superintendent of Public Instruction Jack O'Connell, a Democrat and the elected official who heads the state's Department of Education, as the main defendant. O'Connell and the Department of Education were represented in court by Gregory Rousseve, Deputy General Counsel for the California Department of Education. Steven B, Bassoff, a private attorney, was present to represent the interests of some state employee groups - though none of those groups were named in the lawsuit and not a part of the case.. However Bassoff told the court that the lawsuit impacts the previous legal and regulatory decisons that require that state agencies generally must employ state workers to do state work.

Representing the four individuals and two advocacy organizations (California Association for Parent-Child Advocacy and Protection and Advocacy, Inc) who filed the lawsuit were attorneys Maureen Graves of Irvine, Kathryn Dobel of Berkely, both who are also parents of children in special education, and George Crook of Sherman Oaks. In the audience included attorneys for Protection and Advocacy Inc, and also other advocates, including the California Disability Community Action Network, state Department of Education staff and others.

* Judge Brian Van Camp presided after Judge Loren McMaster, who was originally scheduled to hear the case, was not able to be in court due to illness.
* Judge Van Camp said that he did not feel prepared to proceed further and that more staff research was needed to review all the documents filed with the lawsuit, given the short notice he was given before presiding in today's hearing.
* The judge said that there was an "imposing" amount of information to review and that he was "not comfortable to address" the issues raised. He gave no indication at all how he would rule - though he wondered why the lawsuit was filed so late in the year with only days left before the new mediation system is set to be implemented. He did assure advocates however that he wanted the court to "respond reasonably".
* The Judge seemed to agree with advocates that the delay in hearing the case on January 3 would not mean that the situation would be "fundamentally different" than what it was on December 29,. Advocates raised concerns about the scheduled hearing date of January 3, because it was scheduled after the January 1 implementation of the new mediation system and wanted some assurances that simply passing that date would not mean the issues raised in the lawsuit no longer were relevant.
* Judge Van Camp said that Judge McMaster would likely take himself out of the case because of a potential conflict. McMaster, prior to becoming a Superior Court Judge, represented as an attorney several California state employee groups, according to Judge Van Camp.
* Judge Van Camp said that Judge Thomas Cecil or Judge Shelleyanne W.L. Chang would likely preside over the hearing on January 3, assuming that Judge McMaster removes himself from the case as expected.

Background of Current System of Special Education Due Process and Mediations
* For the past decade and more the the Department of Education complied with state and federal special education laws regarding mediation and the system for due process by contracting with the University of Pacific's McGeorge School of Law to operate the "California Special Education Hearing Office" - which is slated by the Department of Education to be closed down after December 31, 2005
* According to the Department of Education data and also the lawsuit, historically there have been about 3 due process filing per 10,000 students in special education - a rate, according to the lawsuit, that is lower than the national average.
* Approximately 2,000 cases were filed in each of the past several years, with the McGeorge School of Law's Special Education Hearing Office managing these cases with one group of individuals trained as hearing officers to handle cases requiring a hearing and another group of individuals trained in mediation, to handle those cases that can be resolved through mediation.
* In June of this past year, the Department of Education announced that it would end its relationship with McGeorge School of Law and would instead contract with the state Office of Administrative Hearings to handle special education due process cases, including mediation. The Department of Education did allow the McGeorge School of Law's Special Education Hearing Office to continue to handle mediation cases through at least December 31, 2005.
* Contracting non-state employees versus using state employees for state work, as mentioned earlier, has been a controversial union issue for several years in other state departments, including professional engineers and other areas and some observers say was a major reason why the Department of Education moved forward with the change in how it conducts due process and mediation. That issue however was not raised in the lawsuit, though state employee groups may ask the judge for permission to be included in the case as an "intervenor".

Advocates Claim State Has Failed To Put Together Transition Plan
* As previously reported, advocates claim that the change in the mediation system and the failure of the State to put together an orderly transition plan would edtake away rights of thousands of special education students and their families protected under state and federal laws. * They also pointed out that mediation is a different form of resolving disputes and requires a different type of training and criticized the Department of Education's plan to have administrative hearing officers instead handle that function.
* They claim that the new mediation plan by the Department of Education is unfair to families, who they believe will lose fair hearing rights because administrative hearing officers who decide contested due process special education cases would also serve as mediators creating potential conflicts of interest.
* The Department of Education has in recent months disputed those claims and says that the previous mediation system by McGeorge School of Law is nearly closed down now, with files boxed and staff leaving or gone and the new system, to be handled by the state Office of Administrative Hearings ready to take over on January 1.
* The Department of Education also said that any temporary restraining order that would block implementation of the new mediation system would not by itself allow McGeorge School of Law to continue because there would be no contract in place and no means to pay them. Advocates however dispute that.

What Lawsuit Is Asking the Court To Do
Families have the right under the federal Individuals with Disabilities Education Act, to appeal decisions made by their local school district regarding the education of their children in special education. The lawsuit filed by advocates December 20 deals with how the State of California carries out its system of special education due process and mediation. The plaintiffs - parent advocates represented by the California Association for Parent-Child Advocacy and also Protection and Advocacy Inc. and 4 individuals, are asking the Superior Court, besides the temporary order to stop implementation to do the following:
* Requests that the Superior Court to issue a temporary order - and later a permanent order (or injunction) to stop the California Department of Education from moving special education mediation cases, filed prior to January 1, 2006, to the state Office of Administrative Hearings (OAH).
* Requests that the Court issue a judgment that the Superintendent of Public Instruction Jack O'Connell and the Department of Education has not adopted regulations in "the manner required by law" and a temporary and permanent court order that they "not implement, enforce or apply rules and policies or regulations that have not been lawfully adopted."
* Requests the the Court issue a judgment that the Department of Education have "not put in place a mediation system that is in conformity with the purpose and intent" of the state and federal changes to the special education law, known as the Individuals with Disabilities Education Act (IDEA), and that the Court issue an order (or injunction) that would stop the Department of Education from forcing mediations into the Office of Administrative Hearings as planned to go into effect January 1, 2006.
* Requests that the Court issue an order (or injunction) stopping the Department of Education from moving special education mediations to the Office of Administrative Hearings and from "operating a due process system on rules, policies and regulations that have not been lawfully adopted".

Next Steps
* Hearing in Sacramento Superior Court on January 3, Tue at 1:45 PM, to consider request in lawsuit to at least temporarily stop the California Department of Education from moving forward in its plan to change the special education mediation system. Until then, or if the Department of Education agrees to settle before that date, or if the Court refuses to step in the Department of Education can continue to move ahead with its plan.
* Advocates, including the California Association for Parent-Child Advocacy are mobilizing a massive statewide effort to write letters and make phone calls to state legislators and members of both legislative education committees urging them to intervene.
* The California Disability Community Action Network (CDCAN) will hold a CDCAN Disability Rights Townhall Telemeeting on the issue to create an opportunity for families with children with disabilities and mental health needs in special education and other advocates to hear more information and have opportunity for a full discussion of the different viewpoints of the issue in the coming weeks. See separate CDCAN advisory and alert or check the CDCAN website at www.cdcan.us
* The California Legislature is not in session until January 4 and there currently is no legislation pending dealing with this issue. There is a possibility that legislation could be introduced to address the issue however.

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The California Disability Community Action Network is a non-partisan link to thousands of Californians with developmental and other disabilities, people with traumatic brain and other injures, seniors and their families, community organizations and providers, direct care and other workers, and other advocates. These action alerts and news reports is for all of them. If you would like to get on this distribution (and conversely, get off of it) please send an email with that request to: martyomoto@rcip.com OR sign up via the NEW CDCAN website at www.cdcan.us Sharing information is part of our organizing effort. Please feel free to forward or copy this (attribution is nice). We're all in this together!