NewsSTAND
Volume 3 Issue 2
The following is an editorial guest column written by a parent who has struggled with receiving appropriate educational services through the Opportunity Scholarship program. It emphasizes the importance of an accurate Matrix of Services and Individualized Education Program before entering a private school placement.
The Opportunity Scholarship? Whose opportunity?
By Laura Bilotta
For those of you who don’t know already, there is a voucher program for ESE students. Becoming a statewide statute in July of 2000, only a handful have taken advantage of this seemingly prospective alternative. Statute 229.5371 gives an ESE student who has made no progress in their public school program, a choice. They may choose either another public school, one that would provide a better program for their child, or a private school. The private school must be one which is "participating" in this program. The student would bring state funding with them to the private school placement or the "better" performing public school.
The "matrix of service form" generates state funding. This form is completed after an IEP is written. The State has redeveloped a funding criteria along with this new Statute. The "Equity in Funding" Bill was the very reason the Legislature passed the "Opportunity Scholarship for the disabled" in the first place. Senator John McKay, the author of the "Opportunity Scholarship for the disabled," attached his pilot program which was used in Sarasota County a year prior, to the "Equity in Funding" Bill. Being very hip on the new funding criterion, the Legislature agreed to this "Scholarship" also. I have come to believe they were also very hip on another idea.
Think about your child’s IEP for a moment. An IEP, or Individualized Education Program is defined in Section 300.347 of IDEA. Once eligible for ESE services, IDEA states that an IEP MUST be written. The State of Florida uses this plan to formulate a funding criterion, called a "Matrix of Services." This form is generated after the IEP meeting, and in turn the State provides money based on the number from this Matrix. If the service is stated on the Matrix, it must be provided. The numbers are generated by what the school would seemingly provide to your child. The totals range from 251-255. As of 2001 school year, 251-252 students will receive the same funding, no matter what the needs are, and the district is left to decide how to spend the money. Hmmm, here comes the catch. What if the District has only so many OT’s to go around? They fight you on how many hours they will provide OT for your child. They tell you, "well the OT might see him more often then what’s stated on the IEP, or he really only needs 15 minutes a month." They might not receive the funding, but they will also not be held accountable for providing it. No worries for them, if your child doesn’t fall into the 253 and above numbers, they will receive the same amount regardless.
Okay, now back to the scholarship. In order to participate in this statewide statute, the child must have documented lack of progress in IEP goals. This might be no improvement on his handwriting, or speech goals, which could be caused by him only being able to receive 15 minutes a month. (Okay, I know I am being sarcastic, or am I?) This could also be inadequately written goals or objectives. But wait! Remember the Matrix? The tool that formulates funding? If the IEP is inadequate, what will the Matrix look like?
Here comes the truly incredible part. According to the State of Florida, no "Opportunity Scholarship" student will bring or receive federal funding while participating in the private school placement. When contemplating participation into this program, I remember asking why. My answer from the Department of Education was "I don’t know, don’t worry, it isn’t much. I remember discussing it with Nikole. We talked about why they would be withholding Federal funding, whether this was actually true, and who is getting it. Never in my wildest nightmare did it occur to me, why they intentionally withheld federal dollars. The private school my children would be attending, one of only two in Hillsborough County, had no related services such as OT, Speech, and Assistive Technology. In my many correspondences with the DOE, I was told this was not a problem, this or these services could be provided by private contracted agencies. Feeling very skeptical about things, I went to open house for my oldest son's public school placement. I was greeted by the resource room teacher who told me, that for my son’s age group there was no resource room teacher, not only was there no teacher, but there was a freeze on hiring them at the present time. Being through the fight of the century already, and not looking forward to it again, I jumped at the scholarship bait.
I enrolled both of my children in the private school. I presented to the State documented proof of years of inadequate IEP progress, one child was very easy, I had already filed a State Complaint, showed in the complaint years of violations and lack of progress, stemming from the very first inadequate evaluations. The State agreed, and Commissioner’s Order was given. As a matter of fact, the DOE ordered the District to redo the current IEP, they ironically agreed that this was an inadequately written IEP, and didn't provide progress through the general educational curriculum. What about my other son? Well I simply presented an IEP expired since 3/99, this was 7/00.
I started looking for private agencies for the related services the boys would require. The private school, as instructed, had already sent a detailed list of all related services, what the cost would be per student. We received our first warrant of State funding. I was devastated to find thousands of dollars less then what would be required. The State then explained that they used last year’s Matrix rating to formulate funding! They used the very same IEPs that I showed were inadequate, giving me passage to the private placement in the first place. Well, by being a Hillsborough County Sped parent, and having advocates from hell, such as one Mr. Hancock, I had good training in advocating, so I geared up for battle. Never did it prepare me for what was to come. Nikole, wrote the DOE, requesting an IEP meeting, or a family service plan. I had multiple new eval reports showing needed services, and a State complaint ordering a new IEP. I was flabbergasted to finally find out why the students didn’t receive federal funds. They no longer had the right to an IEP, they no longer had the right to F.A.P.E., and they were according to the State now a Parentally placed private school student. The Department of Education wasted no time in explaining "well you chose this private school, you no longer have IDEA part B rights." This was to include my State Complaint resolution. Gee, Commisioner Gallagher and Governor Bush, you sure you want a better education for my child, or do you want me out of your noncompliance with IDEA hair? Yes, they went about amending the complaint. Now here I am, inadequate funding, no right to the very thing that would help generate a higher Matrix number to obtain more funding, the IEP. Ironically the very reason I chose this placement was because of years of denial of F.A.P.E., and some how I found myself without it anyway? What is the Opportunity Scholarship? This was an opportunity for whom? I was told I had a choice, what choice? My children could go to the public school and be blatantly denied FAPE, or they could go to a private school that can’t afford FAPE?
Okay, Nikole talked me out of tying myself to the Turlington Building’s flagpole, and the private school and I resubmitted new Matrix of service forms. The Department of Education directed us to do this without an IEP. We were told in a response letter that if we desired we could resubmit a new Matrix, but we would have to be formally trained to do one. It took us some time to convince FDLRS that "no," we did not need an IEP, or at least we didn't have the right to one. After all, it is in the handbook given to them by the State as one of the requirements before doing a Matrix.
Submitting them along with multiple eval reports showing recommendations for the related services, the State DOE, was stumped. "No one has done one yet, and we need to come up with a procedure to handle this", was the answer. Enough being enough, I filed a formal OCR complaint against the State of Florida DOE. I alleged that the State IS a recipient to federal funding, they knowingly withheld federal funds to this population of disabled students, they are knowingly denied rights to students, and therefore are in violation of Section 504 anti-discrimination law. One week after the complaint was discussed at a Florida Legislative session, amongst the senators, someone decided to appease me. Funding was increased by thousands of dollars for my two sons. It was enough to provide needed related services. NOW that’s an opportunity.
`I remain in my belief that this is a State program. The State, whether they intentionally withheld federal funds or not, is the "recipient" of the funding. They are accountable for my child’s rights and education. I believe this and will continue to pursue this. In the meantime, be warned! Do not leave your public school placement without a damn good IEP, and adequate Matrix. If you already have, and find yourself with an inadequate Matrix and IEP, you may consider resubmitting a new Matrix. It can be done. I am living proof.
After struggling with this for a whole school year, Senator Pruitt has submitted Senate bill 1180, and it has passed. This bill will redefine a lot of the scholarship rules.
1. Still no mention of losing federal rights, but a lot of statements made stating this is a Parental choice.
2. Wording is changed to include that the private school will be accountable to the parents for the students educational progress, the student will have to stay in this school for the whole school year, unless dismissed for just cause. Hmm, okay Senator, how can the parent hold the private school accountable? If I was paying for the school placement I could simply pull them out, and this would be a motivation to do a "good" job, but I am not. The State is. If the State considered this a "State referred " placement under IDEA, I could hold them accountable by many venues, besides hiring an attorney and paying for it. If I as a parent, who could afford a private placement, if it was truly a parental choice, if I could pick any private school, then I suppose I could afford holding the school accountable, right?
3. The parent will have to request the scholarship 60 days before the first warrant is processed, and a new Matrix will be formulated. This is good, they will formulate the Matrix? Hmm, interesting. If the District is making a Matrix for them to lose funding to a private school, wonder what the matrix number will come to?
4. The District will now be responsible to offer the parent another public school choice. Too bad they won't be held accountable for providing F.A.P.E.
5. Any ESE student will be able to apply for the scholarship, regardless of having any kind of lack of progress. I suppose this will alleviate the DOE of having the whole messy opportunity of looking at thousands of non-compliant IEP's.
6. The bill would still give them the opportunity of not being held accountable for tax-payer money, or discrimination against thousands of disabled children.
STAND Participates in the National COPAA Conference
STAND members recently attended the Council of Parent Attorneys and Advocates convention in Washington, DC. STAND Board members Mark Kamleiter, Esq., Laura Whiteside, Esq., Richard Hancock, and Nikole Whitehead, along with other members of COPAA from across the nation, spent time with various Congressmen advocating for full funding of IDEA in the current Congressional session. Other topics discussed included the lack of enforcement of IDEA, and COPAA’s response to the recent National Council on Disabilities Report to the President.
The following three days included presentations on Disability Harassment in the Schools, Update on the Arons Litigation along with discussion of Major Judicial Decisions, Attorneys’ Fees under IDEA, Discipline under IDEA, Improving Special Education Monitoring: National and State Initiatives, Psychoeducational Assessments, OCR issues, Appealing Administrative Decisions. There was also a presentation by STAND’s President, Mark Kamleiter, Esq. on Tax & Estate Planning for Parents of Children with Disabilities.
Newly certified STAND advocate Karen Dany was also able to attend the conference. She attended the general conference as well as the Parent Training Workshop designed to discuss Effective Parent Advocacy.
The Keynote speaker was Ira A. Burnim, Esq. from the Bazelon Center for Mental Health Law in Washington, DC. Mr. Burnim discussed the impact of a trend in the federal courts increasingly to disavow Congress' power to require states to meet federal standards in connection with civil rights of persons with disabilities. Very recently, a federal district disallowed a private civil action to enforce Medicaid programs. This is part of a trend that prohibits private parties to enforce federally funded state-administered programs.
The 1990 Americans with Disabilities Act has been deemed unenforceable in private actions. Unlike the ADA, the IDEA and Section 504 of the Rehabilitiation Act of 1973 (like the Medicaid program) include federal funding, giving them a stronger constitutional basis for allowing a federal court to adjudicate a private claim against a state.
It is at risk, based on the recent decisions in the federal courts.
STAND Certified Advocates
Congratulations are due to the following individuals who have completed and received STAND Certification.