VT Digger | September 20, 2017

September 20, 2017

Phantom rule could leave special needs kids, parents in limbo

State officials thought they’d had a rule in place since 2013 requiring school officials to respond within 15 days when a parent requests that a child be evaluated for special education services.

Now it turns out the rule was never filed properly with the Vermont Secretary of State’s office. Some parent advocates saying that means families have no recourse when school officials drag their feet.

Because some of the rules passed by the Vermont Board of Education are not the same as those posted on the Secretary of State’s website a new rule-making process must take place in order for the 15-day standard to go in effect, officials said.

The state Board of Education and Agency of Education say they are swamped with implementing Vermont’s Act 46 school district consolidation law, and don’t have time to deal the special education rules.

Now they’re asking local school districts to meet the 15-day response time as a “best practice.” But parent advocates say that gives them less power to challenge inaction by schools.

“The difference between best practice and a rule is that a rule is a procedural safeguard for parents’ rights,” said Karen Price, the family support director with Vermont Family Network.

With a rules violation, parents could enter a formal complaint process, Price said. When looking to cure a deviation from best practice, “a parent is relying on the good faith on the part of the school,” she said.

When a parent suspects their child may need special education services, the first step is to ask for an evaluation to see if the child is eligible. Price said that before the state board added the 15-day rule there was no defined timeline for schools to respond to parents’ requests.

“It has been a long-standing problem that parents that suspect their child has a disability and they make a request then never hear back,” Price said. “It happened a lot.”

Price said she knows of one parent who has since learned she cannot file an administrative complaint based on the 15-day rule.

“Now that it’s no longer a rule, she has no right to complain,” she said.

One parent in the Franklin-Northwest district said she had planned to file a formal complaint after becoming frustrated about the school’s lackluster response to her request for a special education evaluation for her child.

“I was going to lodge a complaint about the 15-day rule, but now I’m stuck with not knowing if it makes sense because the rules are changing,” said the parent, who asked for anonymity because being publicly identified could harm her own employment situation. She said she had been notified of the change to the rule by staff at Vermont Legal Aid.

“I believed the information I was finding online was correct. I’m really disappointed that they could make this type of mistake,” she said, adding that guidance is not good enough.

“If a child needs special services, it can’t wait. It needs to be addressed as soon as possible. In the meantime, while we are waiting, a child is suffering,” she said.

The agency has strongly advised school districts to use the 15-day rule until officials have a chance to update it, according to an agency memo released in August.

Haley Jones, spokesperson for the agency, said school districts have been using the 15-day rule since 2013 and everyone is used to it. “We have not heard that anyone intends not to continue to use it,” she added.

In 2013, the state Board of Education made a number of changes to the special education rules, mostly to bring them into compliance with new federal laws. Most of the changes did show up in the official rules posted by the Secretary of State’s office, but a few did not.

“This is the kind of thing that happens when you are short-handed and the state board also has no staff,” said William Mathis, vice chair of the board.

Recent years have been marked by increasing responsibilities for the state board and Agency of Education, including the implementation of the Act 46 school district consolidation law, without long-promised increases in staff, officials said.

The federal government requires schools to respond to parents within 60 days and the state has remained in compliance.

Mathis said the state board added the 15-day rule because members wanted to be more responsive and responsible to parents.

“But through a huge foul-up and a lack of staff to check and double check the work, it didn’t happen,” he said, adding that it will be put back in when the state board goes through the rules process again.

But that is little comfort to Vermont families, said Price. “It is the Agency of Education’s job to have these regulations be correct and protect parents’ rights. As a parents rights organization this is not a response we are happy with – they are short of people? Short of time? They can’t get to this? It isn’t right for parents of children with disabilities for this to remain unfixed.”

Mathis said he isn’t sure when they can start it up since the board and the agency have to deal first with Act 46 and the private school rules series 2200. “It is a matter of the workload for the Agency and for the board. We don’t have any staff.”