Change becomes a two-way street in the world of special education

by:  VERN UYETAKE, Bob Keller and Cynthia Mohiuddin hope that litigation will help their third-grade son, who was placed in a special education classroom, attend a regular class in his neighborhood school, Palisades Elementary, shown behind the couple.

Disgruntled parents say that the Lake Oswego School District has misplaced their third-grade son in a special education classroom.

They have filed a complaint with the Oregon Department of Education and a lawsuit with Clackamas County.

The district says that it's progressing toward a model that is more flexible and provides more options for individual students' needs - including tailored placements that blend time in a specialized classroom and a regular classroom.

'We have people that do not believe that we are addressing the needs of the students in the way that we would like them to be addressed,' said Superintendent Bill Korach. 'Typically those agreements can be worked out.'

Lake Oswego's special education programs have generated 10 complaints in the last four years. Cynthia Mohiuddin and her husband Robert Keller's complaint is the only one in 2008 - a year after the district appointed Patrick Tomblin as the new special services director.

In recent years, there has been a shift away from providing one-on-one educational assistants for students in the regular classroom. Instead, the district has opted to spend less money and place kids in specialized programs 'so they learn to be more self-sufficient. But also because they will always have this backup where they can go back to get more support in a more structured environment if they need it,' said Korach. '(Parents) are buying into this kind of a change and seeing really positive results from it. Regardless of this complaint, it will help the vast majority of our kids.'

The difference in approach to a 'free and appropriate education' in the 'least restrictive environment' according to federal law is at the heart of the litigation.

Keller and Mohiuddin's third-grade son, who was diagnosed with a sensory disorder, was taken out of the regular classroom and put in a special education classroom last fall. The disorder contributes to disruptive behavior. He is particularly sensitive to loud noises and has overreacted aggressively in class. Children with this disorder can outgrow it as they develop, but his parents worry that misplacement outside of the regular classroom won't help him advance.

Mohiuddin says that 'he is a happy, independent child who can function in a classroom setting as long as he has a teacher that understands his sensory needs.' She does feel that her son needs some special services but did not comment on exactly what they should be. She did, however, say that she does not think he needs extra tutoring or an educational assistant.

'We do not think he needs that, but an assistant in regular education is less restrictive than a self-contained class,' she said.

The classroom the district has recommended is contrary to the family's medical providers and her personal research, she said.

The parents filed a complaint with the Oregon Department of Education back in May, and the final ODE determination substantiated only one of eight allegations. It found the LOSD had never determined if the behavior was a result of the child's disorder and simply required more training for district employees on what procedures to follow when a child's behavior changes his placement.

This fall the parents took it a step further and filed a complaint with Clackamas County Circuit Court to appeal the ODE investigation decision. The district was recently served papers for the Keller-Mohiuddin court complaint and school officials will not make comment on pending litigation.

Mohiuddin, a self-employed attorney with Westside Family Law, is representing herself and Keller. She is also chair of the Clackamas County Commission on Children and Families. 'I've considered myself a child advocate long before I had to advocate for my own. I never thought I'd see this day, but here we are,' she said. 'My son deserves to be included in the community like everyone else.'

Pending litigation

Keller and Mohiuddin's son attended Palisades Elementary School until October of 2007 when he was in second grade. In the middle of his first grade year the LOSD recognized a 'communication disorder' making him eligible for special education services. He was required to attend 30 minutes of speech per week. At that time, he was also identified as a Talented and Gifted student for his advanced math abilities.

According to the court complaint, over the next year their son was suspended three times. According to the final ODE report, the district tracked the student's behavior for 92 days after he was identified for services.

During those days, he had an 'incident' 54 percent of the time that included behavior such as verbal aggression, physical aggression and flight. The district determined that the student's current eligibility for services for a 'communication disorder' was not an accurate representation of the problem.

During a parent meeting on Sept. 24, 2007, LOSD officials offered to give the student one-on-one instruction for half days instead of regular full-day classroom time, but the parents wanted their son in a regular classroom. Despite their wishes, their son had a half-day placement which lasted through Oct. 9, 2007, when Keller and Mohiuddin served the LOSD a request for due process - a legal hearing to be held at ODE on the placement. The next day they placed him in a private home school.

According to the complaint file, a month later LOSD acknowledged that their son's suspensions were likely a result of his 'suspected disabilities.' The due process request was mediated out in November, and the district paid for some of the Keller's attorney fees.

A month after that, testing results diagnosed him with Sensory Processing Disorder, a disorder that Mohiuddin says can be addressed in the classroom.

Sensory Processing Disorder can cause a child to over- or under-react to stimuli in his environment, and behavior is different for each child. 'These kids haven't matured enough to process through the sensation of what is happening around them,' said Mohiuddin. 'It's not an easy (disorder) to fit in a box … Therein I think lies part of the problem.'

The file continues by saying that the district suggested an hour of tutoring per day. His parents again refused the offer. On Jan. 7, 2008, LOSD agreed to pay for five hours of tutoring per week in conjunction with homeschooling.

According to Mohiuddin, their son's tutor quit on Feb. 14. However, according to the ODE report, 'the district stopped the tutoring because the student would not engage in the instruction and exhibited non-compliance.'

Mohiuddin attempted to re-enroll her son at Palisades on Feb. 15.

'I was prepared to cooperate with the process, and then they pulled the process,' she said.

The family had already sat through two more meetings and their son was placed in an Alternative Instruction Methods classroom, which was run by the Clackamas ESD through last year. According to the ESD Web site, the criteria for the AIM program includes 'students with a history of emotional-behavioral difficulties who have received less restrictive interventions but have not been successful in reaching their (individual education) goals.'

Mohiuddin's interpretation was that the program was for kids with 'emotional-behavior' problems, not sensory-behavior problems. 'Emotional problems cut across all environments,' she said, while sensory problems change depending on situations. 'That's a huge difference; that's why it disturbs me that they want to lump it all together. Your brain matures as you grow up and you can outgrow (Sensory Processing Disorder) as it changes with development. You can't outgrow (other special needs disorders such as autism). For our son, one year of development has already made a huge difference.'

Since the AIM program was still run by the Clackamas ESD, actually getting their son in the program was a process. How-ever, Tomblin pulled the process, according to Mohiud-din.

'He claims he did that because I filed a complaint, but that shouldn't have changed anything. It doesn't have that legal effect,' she said.

Keller and Mohiuddin's complaint with ODE was filed in early May. They alleged that violations of the federal Individual with Disabilities Education Act denied their son a 'free and appropriate public education.' This summer Mohiuddin wrote a letter to the editor of the Lake Oswego Review arguing that IDEA law says children with disabilities should not be separated from a regular education environment unless the disability is so severe that a child is not being served where they are.

Over the summer, the AIM program transferred to the LOSD's Delta program and Tomblin re-wrote the criteria.

'Now magically it has the word 'sensory' in it,' said Mohiuddin, who complained about the lack of criteria over the summer. 'I wonder where that came from.'

Tomblin, citing pending litigation, would not comment.

Currently, Keller and Mohiuddin's son still attends the private home school with three other children and is in third grade. He has had no additional tutoring since February.

Keller and Mohiuddin filed a complaint on Sept. 17 in Clackamas County to appeal the ODE decision. The file was last amended on Nov. 1. They are requesting that their son be placed in a regular classroom and are seeking reimbursement for attorney fees and any tuition or related educational expenses since Oct. 10, 2007.

Isolated incidents?

Parents in the district have mixed feelings about the direction of special education services. Some say the district provides more resources for parents, and that specialists are better trained. Others laud Tomblin's new models of service.

But at least one Special Services Advisory Committee member says she is concerned about the same thing Mohiuddin and Keller are: Inclusion of special education students in regular classrooms.

'You've got kids going to special education that should be in regular classrooms,' said Cheryl Goekin. 'There's some huge shifts in our model. We're in the middle of it right now and I don't think we all understand.'

She empathizes with the Mohiuddin-Keller family, but says unfortunately, 'maybe it's the best (the district) can do for now.'

Providing every single option for every single student is not possible without more resources, said Korach. The district works with a team of professionals and the parents to come up with the best plan it can provide given the resources, he said, acknowledging that some kids need different, even more specialized programs than the district can provide.

'We're trying to find more opportunities for students to be able to be in the regular program,' said Korach. 'What the district had not done very well in the past is consistently provide those opportunities on both sides of the lake. What Patrick has done is expanding program options for kids … making sure that kids who are in need of special help have the range of opportunities that are warranted.'

Mohiuddin says there are more parents unhappy with their child's placement that are afraid of speaking up. No other official complaints have been made to the Oregon Deparment of Education this year.

In 2007, five complaints were filed at ODE, four complaints in 2006 and none in 2005. Though a lag time between a complaint and the legal fees associated naturally occurred, the district spent $69,385 on special education complaints in the fiscal year 2005-2006 and $73,903 in 2006-2007. The district spending on legal fees dropped to $24,087 during the 2007-2008 fiscal year. It is currently on track to spend about the same as last year, said Stuart Ketzler, finance director.

Earlier this month, the school board heard a presentation of the new Strategic Plan. The meeting was relatively quiet. Special Services Advisory Committee member Rhonda Zarosinski said that the district's services have improved. 'It was a very different year with Patrick (Tomblin) coming on. Patrick's model filled some holes that hadn't been filled,' she said.

'Just to have a meeting without 15 parents in the room ready to rebut is wonderful,' said board member Bill Swindells.