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BUSD also Lost Special Needs Court Case in Sept. 2012


While the $1 million settlement by the BUSD and a special needs child is receiving all the headlines, I was alerted to $2,250 reimbursement settlement that occurred back in Sept. of 2012. While this is relatively small in dollar amount, its yet another strike against the District involving the special needs community and why some major house cleaning is needed.

When the School Board meets this week, they need to not only be looking at the $1 million settlement, but look at everything else that has happened as well. There is an obvious track record and I am sure there are others who have also settled with the District as this is no longer limited to a single incident.

In reviewing the September 2012 decision, the District was ordered to reimburse parents of a child with downs syndrome for $2,250 for the cost of tuition a Student at from Sept. 21 to Aug. 2012 because the district failed to follow policy and denied Free Appropriate Public Education (FAPE) and provide Individualized Education Program (IEP).

According to the decisions by the court, the FAPE was not deemed not  “appropriate” and the IEP was not deemed “individualized”. It also appeared the District’s staff had little knowledge or understand of requirements and district policy.

In speaking with Rita Rebello who is the child’s mother over the weekend, she provided me with a copy of the 43-page decision with the BUSD and shared her experience with the District.  She reflected back on her case was well as the latest settlement.

“My case didn’t get much publicity because it was so low of an award and I didn’t know where to start or think it was any interest to anyone. I think it’s interesting the recent case got all the attention because of $1 million dollars,” explained Rebello.

While she is sad for the incident, she is happy the public is becoming aware of the problems facing special needs children and how they are being treated by the BUSD and other school districts. She admitted she liked his SCD teacher; the class was just over crowded and over whelming environment and stated it was not appropriate for her son. Her other issue was his cognitive score was 80 and 85 is average which she stated they wanted to put him in full-time Special Day Class (SDC)?

She stated they could never seem to answer her questions.

“We could have settled and got a lot more money but I wouldn’t do that. I could have got a lot more. I wanted to be fair, but I also wanted people to know what they were doing. It was never about the money. They wanted me to sign a confidentiality agreement and I wouldn’t do it, I wanted people to know that they did,” explained Rebello.

After the decision, she has reached out to other parents and have created the group S.E.A. Parents  (Self Educating and Advocating) on Facebook.  It’s aimed at helping other parents with special needs children to understand the law and know what rights are available to them.

The 43-page decision (Case No. 2012060919) was awarded in September of 2012. It was originally filed on June 21, 2012 with a close of hearing on August 22, 2012. According to Rebello, both Superintendent Merrill Grant and Principal Laurie James were present for portions of the four-day court case.

According to the decision, this is what was alleged:

  • Issue 1: Did District deny Student a free appropriate public education (FAPE) by significantly impending Parents ability to meaningfully participate at the August 19, 2011, April 23, 2012, and June 6, 2012 individualized education program (IEP) team meetings because it did not have a regular education teacher in attendance?

  • Issue 2: Did District deny Student a FAPE by significantly impeding Parents ability to meaningfully participate at the August 19, 2011 IEP team meeting because it did not consider and discuss a continuum of placement options?

  • Issue 3: Did Districts offer of placement in special day class (SDC) in the August 19, 2011, April 23, 2012, and June 6, 2012 IEP deny Student a FAPE in the least restrictive environment (LRE)?

Proposed Resolution

Student requests that District provide him with a full-inclusion placement with appropriate supports and services, including a trained one-to-tone aide and an independent inclusion specialist experience in working with children with Down’s syndrome. Student requests, as compensatory education, intensive one-to-one instruction in core academic subjects provided by a nonpublic agency. Finally, student requests that the District reimburse Parents for preschool tuition and privately obtained speech and language therapy from August 2011 to the present.

In reviewing the document, there appears to be a trend with the BUSD that they did not educate their teachers on the laws and what services could or could not be provided. I am under the impression its not the staffs fault, but the administration’s fault for washing their hands in all this—it’s their job to ensure staff is properly trained and understand the laws for not only special needs children, but all children.

For example, here are some findings:

The District was required to ensure that a regular education teacher or an appropriate designee attended Students August 2011 IEP team meeting. The records show the District failed to ensure the attendance of a regular education teacher or designee a Students IEP team meetings.

The records also show that District failed to designate an appropriate person to fulfill the role of a regular education teacher at any of the students IEP team meetings (page 14). The District also failed to designate anyone as the regular education teacher at any of the students IEP team meetings.

Paragraph 40 is telling, it states the following:

Even if District had designated Olson, Sheldon, or Snider as the regular education teacher member, the records show they were not qualified to fulfill the role of regular education teacher at Students IEP team meetings. None of them had taught Student or had experience teaching typically developing preschool children. Furthermore, none of them understood the scope of the Districts duty to mainstream a disabled preschooler or how Students IP could be implemented in a regular preschool classroom. Sheldon testified that mainstreaming was “unavailable” to student because District was not mandated to provide preschool for non-disabled children. Sheldon further reveled her misunderstanding of mainstreaming by testifying that a child who could be educated in regular education for 90 percent of the time would not be eligible for special education.

Paragraph 41

Moreover, despite the fact Students April 1, 2011 IFSP states that Head Start services were available for Student, Sheldon testified that she did not know if Student was eligible for Head Start. Sheldon was unaware that Head Start reserved 10 percent of its places for preschoolers with IEP’s. Similarly, Olsen testified that she was unaware that District could contract with Head Start to place preschoolers there.

Paragraph 44:

In Sum, District knew that Student “may be participating in regular education.” So it was required to invite students private teacher to attend his August 2011 IEP team meeting, or otherwise ensure that a regular education teacher or appropriate designee attended. By failing to do so, District committed a procedural error.

Paragraph 46

District committed a procedural violation by failing to have a regular education teacher at students April 2012 IEP team meeting

Paragraph 49

Accordingly, for all three IEP meetings in August 2011, April 2012, and June 2012, District omitted a procedural violation of the IDEA.

I could go on, but you get the point. The document is a total of 43 pages and ultimately, the court sided with the student and parents.

“The very first time met with school psychologist for transition meeting, it just went downhill quick claiming that my son was entitled to least restrictive environment. The District said it started at age six, but I knew it starts at age 3 and goes up to 21,” explained Rebello. “ I would like to thank the school psychologist however, because she came into my home and got me so upset it light a fire in me and I got educated real quick on my rights and Special Education Law. I don’t think I would know so much had she not made me so mad.”

She explained that over time, she become self-educated and advocated for her son by reaching out to every agency she could. She encourages other parents to do the same. If it doesn’t seem right, it probably isn’t right.

She admitted that the process could be draining and sometimes parents need a break, but it’s all worth it for your kids to be given access to education they deserve within the law.

“I feel like some parents don’t want to fight injustice, that parents don’t question professionals. I can’t fight battles for them. With Dina Holder, I thought maybe parents might start second guessing the District. The school district doesn’t tell you that there are other options for pre-schoolers, “said Rebello.

One concern of Rebello is that a major overhaul is needed within placement and assessments they do. When a child takes their assessments and evaluations to get into school, they are placed in a class based off ability—she claims the district predetermines placement based off a child’s diagnoses before they even take the test.

“What they do when a child has a disability is just place them. I feel that they have their placement before they even evaluate.  That is when my red flag went off because they told me where he would likely be placed before they assessed and evaluated him what they would offer me,” said Rebello.

In speaking with Rebello over the weekend, the impression I got from her is she simply wants the BUSD to become advocates for children, not to protect their jobs.  She would like major improvements that benefit not only special needs children, but all students.  The entire district needs a culture change and need it fast.

Ultimately, Rebello takes pleasure in the changes she helped implement as they are now offering part-time pre-school while they are no longer having and occupational therapist perform physical therapy.

She hopes the BUSD makes even greater changes in the future for the District.

Here is the PDF to the decision.
Case No. 2012060919


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6 Responses »

  1. Some more explaining from the BUSD is needed on this. Parents should be alerted to what has been done since this case to prevent it from ever happening again!

  2. The BUSD makes me sick, they better start treating the kids and parents with more respect. New leadership now should be the motto.

  3. Another injustice provided to you by the BUSD. I would hope the Board decides to finally take action after this. I feel bad for all families who have to deal with an incompetent leadership who clearly do not value rules and procedures.
    Dear School Board, please fire Superintended, the principal and anyone else involved. Do the right thing. You are 0-2 now with special needs.

  4. What is wrong with this school district. Thank you to rita for sharing her story.

  5. It may be this is just the tip of the iceberg. Just awful to see this happening when BUSD used to be one of the better districts.


  1. Lack of BUSD Action is Cause for Concern | East County Today

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