Jessica Dattilo watches as her three year-old son Gabriel works on a puzzle at home. Gabriel is autistic. Jessica is seeking due process hearings to get help for her son. (Charlotte Schmid-Maybach / Daily News)
 

Special ed legal fights soaring
Costs of parent demands weighed

By Helen Gao
Staff Writer
When her 3-year-old son, Gabriel, was diagnosed with autism last year, Jessica Dattilo plunged into learning all she could about the developmental disorder and what his needs would be in preschool.

Supported by an advocate, the Sherman Oaks mother asked the Los Angeles Unified School District to provide Gabriel with speech, language and behavioral therapy, in addition to the occupational therapy he is getting. When the district declined, Dattilo filed for a formal hearing to challenge the decision.

Such legal skirmishes over special education services are skyrocketing in the LAUSD as it aggressively tackles ballooning costs that threaten to overwhelm its budget.

According to a study conducted by the district Inspector General's Office, requests for due-process hearings doubled in three years, soaring from 489 disputes in 1999 to 1,017 in 2002. Parents file for hearings when they disagree with school officials on what constitutes an appropriate education for their special-needs children.

"Parents are on a journey of searching for what is going to be the best for their kids, and they will exhaust every avenue for their kids," said Julie Fabrocini, principal of CHIME Charter School in Woodland Hills, which is pioneering an education model that serves children of all abilities.

"But there has to be some fiscal responsibility for providing education for all children. There can be a great disparity between what someone thinks it costs to educate their child and what other people think it costs to educate their child."

The LAUSD spends about 12 percent, or $1.3 billion, of its $9.7 billion budget on special education. Its cost of educating a special-needs child averages $12,976 per year, compared with $7,065 for a general education student.

Advocates argue cost-cutting measures instituted under the leadership of Superintendent Roy Romer and Assistant Superintendent Donnalyn Jaque-Anton have gone too far, contributing to the dramatic rise in hearing requests. They say school officials either routinely deny parents' requests for services or provide the minimum because of apparent dictates from the top.

"In many ways, it appears that now the entire system is micromanaged from downtown," said Valerie Vanaman, a Sherman Oaks special education attorney. "Everybody is sort of afraid to take any action or move because they are getting their shoulders looked over all the time.

"When you have that kind of climate in place, the easiest way not to get into trouble is to say no."

School district officials deny they try to save money by dictating limitations for individual education plans -- a customized program required for every special education student. An IEP includes everything from curriculum to what kind of therapy a child will receive.

Officials attribute the high number of hearing requests to a new state ruling that changed how the district reimburses parents for private services for their children. In the past, the district worked out reimbursements informally, but two years ago, it began requiring parents to go through a formal process.

"It pains me because the truth of it is, although we may be managing our system better, neither I nor any of my staff would take away services needed for a child or not recommend services," Jaque-Anton said.

Nationwide, the number of hearing requests is also growing, but at a slower rate than the LAUSD's, according to a 2002 study conducted by the National Association of State Directors of Special Education. The study showed that hearing requests nearly tripled from 4,655 in 1991 to 11,068 in 2000.

"Parents are becoming more educated. They are more aware of their rights," said Woodland Hills special education advocate Adam Sacks, who represents Dattilo. "There are a lot more resources on the Internet that people are coming into contact with."

In California, a disproportionate number of requests originates from the LAUSD, which is the largest district in the state and the second-largest in the nation.

The LAUSD educates about 13 percent of the state's special education population, or 86,000 students, but it accounted for nearly 32 percent of the hearing requests filed statewide in 1999-2002, according to state Department of Education data.

When parents apply for due process, they are first directed to try mediation. When mediation fails, the next step is a legal hearing, which is like a mini-trial pitting experts against experts. An overwhelming number of the disputes -- more than 90 percent statewide -- are resolved through mediation.

Dattilo hopes her dispute with the district will also be resolved through mediation because she believes her request for additional services for her son is reasonable. Gabriel, she said, has language delay and sometimes hits and pinches other people without provocation. She is afraid, without the appropriate therapy, he will injure someone.

"I am not asking for anything outrageous," she said. "It's what he needs."

She is sympathetic to the district's financial hardship, but she noted that it's human nature for a mother to fight for her child.

"I want to give him every advantage in the world. Every parent feels that way. Every parent wants their child to succeed."

Harold Kwalwasser, the LAUSD's general counsel, believes the rise in hearing requests came about because the district is resisting excessive demands from parents who want more than they are entitled to under the law.

Under the federal Individuals with Disabilities Education Act, school districts are required to provide special-needs students "free and appropriate education." How to interpret that vague language is at the heart of disputes between parents and school districts across the nation.

"Previously, the district was too accommodating to parents' demands," Kwalwasser said. "However, in an era when the district is under great financial stress, we cannot simply spend regardless of whether it's required."

In the LAUSD more often than not, parents prevail in mediations and hearings, according to the inspector general's report. Of a sampling of 600 cases, parents won 400 -- 70 percent of which were decided in their favor because the district made procedural errors.

"This created business opportunities for numerous law firms and advocates to file lawsuits against the LAUSD," said the inspector general's report. "As a result, the LAUSD incurred additional or excess due-process cost, including legal fees."

As the losing party, the LAUSD must pay the legal fees of prevailing parents, plus its own legal fees. Between 1999 and 2002, the LAUSD's due-process costs averaged at least $4.9 million a year, according to the inspector general's report.

If there is one thing advocates and district officials agree on, it's the fact that more and more lawyers are involved. "We have too many lawyers involved in this," said Jaque-Anton. "We need to get back to solving things with the child in the center."

The district's aggressive legal stance, however, appears to be paying off. Its special education budget grew by 5 percent last year, compared with double-digit increases in the past. This year's special education expenditures are projected to be $76.8 million below the district's $1.3 billion estimate.

Although the LAUSD does not gather demographic and ethnic information on who files for due process, there is a general consensus that a large number of its hearing requests come from the Westside and west San Fernando Valley, where parent education and income are higher.

"Basically, they are giving more services to people they consider to be a bigger threat -- those who have lawyers and advocates and are willing to fight -- those who don't get run over," said Sacks.

Jaque-Anton denied that the district treats parents differently depending on whether they have legal representation.

"A lawyer sitting across from us does not make the resolution any different," she said. "We work from the needs of a child."