Tina Fleener was never told about the time her second-grade son dropped to the ground during class, not responding to his teachers. She also wasn’t told that, as a result, he was made to sit alone in a small room.
Fleener’s son was diagnosed at 8 months old with white matter loss in his brain, which means he struggles to talk, process information, and regulate his emotions. He requires speech therapy and communicates primarily with sign language. He is also epileptic and prone to full and partial seizures. In second grade he still wore a diaper and had trouble feeding himself because he experienced tremors.
The day he dropped to the ground in class, the school saw a defiant child. Fleener recognized something else — a seizure, in which case leaving him alone during or after was dangerous.
“My son could have died at school because of this lack of training,” said Fleener, who found out about the incident, and what came next, only when she requested his disciplinary records.
Fleener filed a due process complaint against the Lafayette-based Tippecanoe Schools a couple of months later, arguing the district violated the law by denying her son a free and appropriate public education. That state filing launched what both schools and parent advocates say is a lengthy and expensive process.
The due process system is meant to be faster, cheaper, and more cooperative than court, while still bringing in a trained third-party to oversee a hearing and decide what services a student is legally entitled to receive. The reality in Indiana is often drawn-out, a time- and paperwork-intensive, and expensive process that takes district money away from the classroom, leaves students waiting months, and may discourage parents from filing.
State data shows few cases are resolved within the mandated 45-day window. Both schools and parents often report shelling out thousands of dollars, largely in attorney fees. Due process complaints generally cost the school district $10,000, but can cost as much as $30,000, said Tippecanoe’s superintendent, Scott Hanback, who declined to comment on Fleener’s case citing student privacy laws.
Tippecanoe schools and families are not alone in dealing with due process challenges. Indiana has seen an increase in the number of cases filed over the last five years, but sees fewer total filings — and fewer still that have gone on to hearings — compared with a decade ago. Nonetheless, the cost of these cases keeps rising, school officials say, and the issue caught at least one influential lawmaker’s attention. A State Board of Education committee is currently tasked with looking for ways to reduce the cost for both parties and making recommendations to lawmakers by Nov. 1.
The discussion, however, treads a fine line between offering relief to schools and families without infringing on the federal right to file a due-process claim.
Where conflict arises
Her son received an Individualized Education Plan in 2012, when he was 3 years old and had already been diagnosed with white matter loss. Months later, he was also diagnosed with epilepsy, which Fleener said was added to his IEP under “other health impairments.”
In first grade, his teacher noted that she saw “a decline in his ability to stay calm,” and school records said that he became increasingly aggressive – throwing things, scratching, and leaving the classroom without permission. The changes were documented in a neuropsychological exam he underwent in 2018. He was suspended once for “punching a teacher in the face, leaving a mark.” He was kept inside for recess when he misbehaved. Alternately, he was secluded.
Fleener believes his behavior worsened in second grade because, although Medicaid covered the cost of an electronic communication device, her son’s new teacher didn’t know sign language.
Those who work in special education say conflict usually arises in the space between what a parent or guardian thinks is “free and appropriate” for their child and what school officials think.
“A parent, naturally, is going to want what’s best for their child,” said Angie Balsley, president-elect of Indiana Council of Administrators of Special Education, who is on the state committee. “What’s best, not what’s appropriate.” But schools, which have to budget to serve all of their students, may feel a different level of support meets a student’s needs.
Much of special education law, such as the term “free and appropriate education,” is open to interpretation, said Kevin McDowell, Indiana Attorney General assistant chief counsel, during an August state committee meeting. That makes disputes inevitable, he said.
Fleener said she went to her son’s regular IEP meeting with school officials in the fall, which is when she got the idea to request his disciplinary records. Those records showed that his health plan hadn’t been updated in nearly three years, she said.
Tippecanoe’s school board policy says teachers should make an effort to “eliminate or minimize” the need for seclusion or restraint, and that it should only be used as a last resort if “imminent risk of injury” to teachers. But Fleener said her son’s disciplinary records stated that he spent more than two hours over the course of a single day secluded in a small room. On several other days he was in there for stretches longer than 10 minutes, she said.
“There were lots of things happening to [my son] at school that I wasn’t aware of,” she said.
She connected with a local parent advocate and called two special IEP meetings in November and December. Fleener can’t say much about her case because her settlement with the district included a nondisclosure agreement. But she did say they walked in with a list of changes to her son’s services and how he is disciplined.
“The schools said no to every single one,” she said. “We walked out of the meeting.”
‘Money going out the door’
Under federal law, all parents have three state-level options available to them, when they feel that their children aren’t receiving the services to which they are entitled. There’s a special education complaint, when an investigator chosen by the state advises both parties on how the conflict can be resolved and puts together a report that includes directions for “corrective action.” Another option is mediation, in which parents and the schools voluntarily work with a state mediator to try to come to an agreement. In 2018, 139 complaints and 74 mediation requests were filed statewide.
A due process complaint is the only option that leads to a formal hearing, which can be days-long and include calling witnesses. In 2016-17, the most recent year for which data is available, 74 due process complaints were filed, and just four of them resulted in hearings, according to state data. That’s a relatively small number compared to the more than 170,000 special education students in Indiana.
Most due process cases, like Fleener’s, are settled before the hearing — a fact some advocates point to when arguing that the system is working as federal law intended.
But just looking at the number of settled cases doesn’t tell the full story of the time and money those involved may endure, or how long a student is left receiving services that may not be appropriate. Fleener, for one, paid more than $3,000 to hire an attorney, and the 2018 complaint took six months to settle.
Hanback, Tippecanoe Schools superintendent, said resolutions would happen faster if parents and schools work to resolve disputes at a “lower level,” such as case conferences between parents and teachers.
“There are some due process cases that come across our desk that are a surprise to us,” he said. “When our special education director thought that things were otherwise going well.”
The two biggest costs for schools are attorney fees and hearing officers, who are trained by the state and paid $90 per hour. In 2018, hearing officer’s fees averaged less than $2,000 in cases that were settled or dismissed but averaged $10,500 in cases that went to a hearing.
Schools aren’t required by law to hire an attorney, but “as schools we want to be very careful to protect the rights of the parent and student who filed the complaint, and also protect the rights of the school corporation,” Hanback said. “So that’s why we will consult legal representation.”
Parents can’t seek damages through due process, but schools do reimburse parents’ attorney fees if the hearing officer rules in the parent’s favor. That makes winning the case high-stakes for families who can’t otherwise afford the fees.
It’s difficult for schools budget for, Hanback said. Some years there are zero cases, but once Tippecanoe had three at the same time.
Most schools have insurance covering legal costs, but Balsley said the deductible is often $10,000 to $20,000. She brought up the idea of limiting attorneys’ involvement for both schools and parents during one of the state committee meetings when she shared the results of her 2018 survey of 10 special education directors. Balsley said in some cases parents hire two attorneys, so schools end up paying double the fees.
“To me, every dollar is a kid dollar,” she said. “So when we have to pay out attorneys, I’m looking at, wow, there’s money going out the door.”
That idea might get the process closer to how it looked when it was created in the 1970s – when experts say hearings were more informal and rarely involved lawyers or hefty fees. But it quickly met opposition from parent advocates, who said families feel they need representation to understand the law and go up against the district’s attorney.
“Just because something is costly to the schools doesn’t mean the process doesn’t work,” said Kim Dodson, executive director of The Arc of Indiana, an advocacy group for children with disabilities. “We can’t deter parents… It’s an emotional and overwhelming process.”
Looking for solutions
Chairman of the House Education Committee Rep. Bob Behning, a Republican of Indianapolis, introduced a bill this year that was meant to help curb the cost for schools by proposing parents pay some of the school’s legal fees if they lost their case. The language was ultimately removed from the bill after it received backlash from special education parents and advocates.
Lawmakers went on to create a state committee in June, known as the Education Dispute Resolution Working Group. The group, which includes a parent of a child with special needs, is tasked with recommending how to reduce costs involved with due process cases. They are set to discuss potential changes to how hearing officers are paid and developing a system of low-cost legal help.
The group also discussed better training on special education law for teachers – an idea that Fleener backs. She was happy when the state passed separate legislation requiring some teachers to be trained to recognize the signs of seizures.
Fleener initially pulled her son out of school, and he finished out the school year using homebound services. The nondisclosure agreement prevents her from discussing details, but Fleener said the school has made some changes as a result of her case.
Her son is now back at his old school, with a new aide who is fluent in sign language and a new discipline method. Fleener said if he’s misbehaving his teacher slowly counts to three, then gives him a thumbs down. The thumbs down means he has to wait an extra five minutes to play a game at home. In the first two weeks, he’s only had two thumbs down. Fleener said that’s progress.