Pennsylvania Alert: Has the Gaskin Settlement Run out of Gas?

A six month progress report has come from the Gaskin Overall Settlement and Implementation Committee.

Upon reading the report, one has to wonder what it going on in Harrisburg. It would appear that certain parties are stifling communication. Not only PDE, but the plaintiffs themselves.

From the report...

Section IV.1 Policy Development and Implementation

A) There is no information to support a view that PDE has complied with the obligation to require school districts to adhere to requirements of IDEA and case law, including Oberti v. Board of Education, when making placement decisions.

B) There is no information to support a view that PDE has complied with the obligation to provide coordinated and paid services in accordance with the interagency of Memorandum of Understanding entered into among PDE, DPW, L&I, and the Pennsylvania Department of Health.

C) There is no information to support a view that PDE has complied with the obligation to assure that special education students are also entitled to gifted support or to Chapter 15 services have a single plan.

D) There is no information to support a view that PDE has complied with the obligation to gather input from the Panel and to design and make available to parents of children with significant disabilities information about supplementary aids and services that children with disabilities can receive in regular education classrooms and information about how to seek assistance in obtaining such supplementary aids and services.

E) Input has been solicited from the Advisory Panel, but no information exists to support a view that PDE has designed and distributed to school districts materials for display in school buildings to make it clear that all children are welcome.

Section IV.2 Advisory Panel

1. The Advisory Panel has been established.

2. It is questionable whether the composition of the panel is consistent with item (4). The Panel is widely described as including nine parents of children with disabilities, but in actuality, the plaintiffs have selected nine parents of people with disabilities, three of whom are actually parents of people who are not served in special education in Pennsylvania because they are adults.

3. Panel members receive reimbursement for travel costs to participate in actual Panel meetings, but have not received word, despite repeated requests, whether or not they can be reimbursed for expenses associated with other Panel activities, e.g. postage, mileage for visiting schools, stationary, etc.

4. The initial meeting of the Panel occurred within the required time frame, though it was not a business meeting, but an organizational meeting.

5. The Panel has met quarterly but has not been provided with adequate time or data to review and evaluate system-wide progress in implementation of the Settlement Agreement. Despite this circumstance, the Panel has made some recommendations for continued progress.

6. The Panel has developed a committee structure.

7. The Panel is in the process of finalizing operating procedures, which may occur at the June meeting.

8. PDE has not provided sufficient data on a timely basis to the Advisory Panel or to its Committees.

9. PDE has not complied with the obligation to provide the Panel with data regarding placement of first grade students.

10. Given that very little data has been provided, there is no information to support a finding that data has been provided in a manner consistent with this item of the Settlement Agreement.

11. There is a concern among Panel members regarding the level of support provided to the Panel. While support has been provided, there appears to be a disagreement that the level of support has been “reasonable.”

12. A Panel member was appointed by the Advisory Panel in January 2006, to work with PDE regarding the needs assessment.

13. Panel members have been identified to assist PDE in identifying exemplary practices in school districts in Pennsylvania, but those Panel members have been waiting for months for information from PDE regarding reimbursement for postage and travel and for “authorization” to visit schools.

Section IV. 3 IEP Format

1. PDE provides an annotated IEP format.

2. PDE did not modify the LRE portion of the Annotated IEP by December 31, 2005, but has modified it recently. The Panel has not been provided with information to support a finding that PDE has incorporated the modifications into the actual IEP format.

3. There is no information to support a view that PDE has complied with the obligation to not modify the LRE portion of the Annotated IEP or the IEP without the consent of the plaintiffs.

4. PDE has provided written guidance to school districts regarding the LRE portion of the IEP.
   

Section IV.4 Compliance Monitoring

1. 1) There is no information to support a view that PDE has complied with the obligation to ensure that regular cyclical monitoring has included the required additional steps outlined in the Settlement Agreement.

2) There is no information to support a view that PDE has complied with the obligation to engage in targeted monitoring.

3) PDE has engaged in LRE monitoring, but

a) Has not based the identification of priorities or goal statements on input from the Advisory Panel, nor has it involved the Panel in a discussion about such. There is no information to support a view that PDE has complied with the obligation to set priorities based on increasing the number of students with disabilities in regular education classes and neighborhood schools with needed supplementary aids, services and support or on developing IEPs capable of providing students with disabilities a meaningful benefit from inclusion.

b) There is no information to support a view that PDE has complied with the obligation to base LRE monitoring on a limited number of indicators identified within priority areas.

c) There is no information to support a view that PDE has complied with the obligation to base LRE monitoring on comparisons to state averages identified by PDE or that it has communicated those standards clearly to school districts.

d) There is no information to support a view that PDE has complied with the obligation to clearly communicate triggers to school districts.

B) 1)There is no information to support a view that PDE has complied with the obligation that all areas of compliance monitoring serve the purpose of assessing the educational progress of children with disabilities.

2) There is no information to support a finding that PDE’s monitoring staff have been appropriately trained or engage in regular professional development. Compliance monitoring has been conducted for Tier One school districts. There is no information to support a view that PDE has engaged in targeted monitoring and no information has been provided to assess the status of regular cyclical monitoring.

C) There is no information to support a view that PDE has complied with the obligation to create an LRE index, nor is there any information to support a finding that districts’ LRE index scores have been made public as part of school and district report cards under NCLB and the IDEA.

D) The parties did not identify Tier One School Districts by December 31, 2005. They identified them subsequently by mutual agreement. The Panel has reports that Monitoring visits were to be conducted in April and May, but has no information regarding Monitoring team members. The Panel has not been provided with information to support a finding that the process involved met the requirements of the settlement agreement.

NOTE – The parties used a similar process to identify Tier Two and Tier Three school districts, though no such provision exists in the Settlement Agreement.

1. There is no information to support a view that PDE has complied with the obligations for Tier Two LRE Monitoring.

2. There is no information to support a view that PDE has complied with the obligations for Tier Three LRE Monitoring.

3. There is no information to support a view that PDE has complied with the obligations to engage in targeted monitoring.

4. There is no information to support a view that PDE has complied with the obligations cited in the Settlement Agreement regarding Regular Cyclical Monitoring.

5. There is no information to support a view that PDE has complied with the obligations in the Settlement Agreement regarding Sanctions for Noncompliance.
   

Section IV.5 Complaint Resolution

1. There is no information that has been provided to the Panel that would support a view that PDE has complied with the obligation to comply with the requirements identified in the settlement agreement regarding submission of a parent or student complaint to PDE.

2. There is no information to support a view that PDE has complied with the obligation to investigate the status of the complaint or outcome of due process decision at the district’s next compliance monitoring for similarly situated students.
   

Section IV.6

There is no information to support a view that PDE has complied with the obligation to build upon and refine its present system of review and approval or disapproval of special education plans. PDE is supposed to accomplish this aspect of the Settlement Agreement by no later than September 16, 2006.

Section IV.7

1. PDE has implemented a mini grant program. An Advisory Panel member was appointed in January 2006 to work with PDE regarding the needs assessment and a committee of the Panel has been recommending specific information on technical assistance and training. However, few Panel level recommendations have been made on the subject, and there is no evidence to support a finding that PDE has implemented those recommendations.
   

Section IV.8

1. There is no information to support a view that PDE has complied with the obligation to provide the plaintiffs with a letter of support for an advocacy grant proposal.
   

Section IV. 9

1. PDE has paid $350,000 for compensatory damages. The plaintiffs are responsible for distributing the funds among themselves, and there are reports from stakeholders that those funds have not yet been entirely distributed.

2. PDE has paid plaintiffs’ counsel $1,825,000 for all attorneys’ fees and litigation costs. The plaintiffs are responsible for distributing those funds between attorneys’ fees and litigation costs as they see fit. There are reports from stakeholders that those funds have not yet been entirely distributed for these purposes.

3. PDE made the payments on a timely basis.
   

Section IV.10

The Settlement Agreement was approved by the Court, which retains jurisdiction for the purpose of enforcing aspects of Section IV.10. While there are verbal reports that PDE has complied with its obligation to provide the required certification on or around March 16, 2006, the parties have jointly agreed to deny the certification to the Panel for review. There is no evidence to support a finding as to whether or not the plaintiffs have complied with their obligation to respond to the certification in writing. If they have failed to do so, the plaintiff’s counsel is estopped from seeking relief for any material breach of the Settlement Agreement. There is no information, consequently, about whether the plaintiffs have identified material breaches in PDE’s implementation of the Settlement Agreement.

For more information on the Gaskin Settlement Agreement visit PATTAN