School districts in Northeast Pennsylvania are involved in more special education litigation than any other area of the state, a Sunday Times analysis has found.
The due process claims arise when a district fails to provide a student with special needs or learning disability the education required by law - and it is costing taxpayers millions. In Scranton alone, more than $3.3 million has been spent on settlements and given to opposing legal teams in the past five years. Those cases are now the subject of an investigation by the state auditor general's office.
Related:
Special Education Due Process Requests Chart
PA Special Education Due Process Requests Database
Combined, the 20 districts that make up the Northeastern Educational Intermediate Unit have a ratio of more cases per special education student than any of the state's 29 intermediate units. Scranton, with 140 cases over the past five years, is second only to Philadelphia with the number of due process requests.
Area educators are calling for a reform of the legal process and say the cases have become an easy target for lawyers, some who have opened offices in Scranton. Lawyers say they are holding districts accountable for not following federal law, and are giving students and parents a voice that districts sometimes ignore.
Due process
Under federal special education law, if parents are not satisfied with the special education services a school is providing to their child, the parents can file a complaint with Pennsylvania's Office for Dispute Resolution.
Sometimes, an agreement can be reached through mediation, and other times, it goes to due process, where a hearing officer decides the dispute. Most often, the parties come to a settlement agreement.
Settlements usually include a plan for educational supports in the classroom, as well as money that is put into a trust. The money can only be used for educational purposes such as a computer or private tutoring, and purchases must be pre-approved through the organization that manages the trust. Districts are also responsible for the fees of opposing attorneys.
When the average number of special education students over the five-year period is factored in, more Scranton students have been involved in due process litigation than any other district in the state with more than 500 special education students. The Sunday Times analysis ranked districts with 500 or more special education students, which is 144 districts statewide. Districts with smaller special education populations were not included in the ranking because the small pool would have skewed the analysis.
All of the state's intermediate units were ranked in the analysis.
The Philadelphia School District is ranked 24th; Pocono Mountain, 27th; Stroudsburg Area, 32nd; Reading 56th; Harrisburg, 82nd; Wilkes-Barre Area, 84th; Pittsburgh, 113th; Allentown, 122nd; and Erie, 144th. A full, searchable database, with cases by year, is available at thetimes-tribune.com.
Scranton cases since 2008 are now the subject of a state auditor general investigation. Details, such as the total money awarded since 2008, and data on trust funds, have been provided to Auditor General's office. The office will not comment on the investigation. The audit was prompted after someone made a complaint to the office, according to the district.
Regional problems
The districts in the NEIU leading the state in litigation is due largely to cases in the Scranton School District. Districts in Lackawanna, Susquehanna and Wayne counties, and Lackawanna Trail, comprise the NEIU.
About 18 percent of Scranton students, or about the size of the student body of Scranton High School, qualify for special education services, whether it is extra help in math or full-time placement in a classroom for autistic students. The district has about 10,000 students, and 140 due process requests have been filed from the 2007-08 to 2011-12 school years.
Since 2008, the Scranton School District has settled 88 cases for a total of $2.5 million, plus $790,000 in fees for opposing attorneys, according to the district.
Area superintendents blame, in large part, those attorneys for the high number of cases in Northeast Pennsylvania.
Dennis McAndrews, founder and managing partner of McAndrews Law Offices, opened an office in Scranton three years ago and has handled cases in the region for more than a decade. He also has offices in suburban Philadelphia, Wilmington, Del., and Washington, D.C.
"If you look at general trends, some of the education reforms that districts in most other parts of the state made in the 1990s, lag behind in Northeast Pennsylvania," he said.
The process of using research-based instruction and truly comprehensive evaluations, has been slower in this region than in other parts of the state, he said.
"That's the two key things if you're going to comply with special education law," he said. "What is needed or has been needed is a truly comprehensive approach to modernizing special education."
Drew Christian started his Scranton practice in 2004, after working as a school district defense lawyer in Philadelphia. While doing work for districts statewide, he quickly learned there was no local practice dedicated solely to special education law.
After he opened his office, he filed 30 cases against area districts his first year.
"They can blame me for making the litigation, but I only shine a light on the problem," he said. "There are hardworking special education teachers, directors, but for some reason, there is a disconnect between what the statutes say and what is happening in the classroom more in Northeast Pennsylvania than in some other areas."
When dealing with Scranton cases, the most frustrating aspect is dealing with repeat clients, Mr. Christian said. A case can be settled, and three months later, the parent comes back and says the problem still is not fixed.
"It's easy to say the lawyers are causing litigation, but in doing so it's easy to forget there is a parent of a disabled child who has had some kind of grievance," he said.
Scranton issues
Scranton Superintendent William King said he cannot "pinpoint" why there have been so many cases in Scranton during the last five years. He also did not know Scranton led the state in cases per student. The $3.3 million spent on settlements and opposing attorneys does not include the amount paid to the district's solicitor.
The special education department was understaffed, but no one ever came to the superintendent or the school board to ask for more support, he said.
The district soon learned of the problems in the department when the district hired Gina Colarossi to oversee compliance issues last year. She replaced Lee Carr, as special education director, when Ms. Carr retired earlier this year.
Since then, several new supervisor positions have been created, and communication with parents, adhering to federal law and scheduling professional development programs have become priorities, the district's new solicitor, John Minora, said.
"We recognized the problem," he said. "We're on the right path."
Former longtime district solicitor Harry McGrath, who was fired by the board in November 2011, oversaw the legal defense of the due process cases.
When reached by The Sunday Times last week, he said he did not have the authority by the district to discuss the cases and could not speak about why there was a high number of cases.
Efforts to reach Ms. Carr were unsuccessful.
Change needed
To fix special education in Scranton, more needs to be done than hiring additional supervisors, said Rosemary Boland, president of the Scranton Federation of Teachers. Since contract negotiations eight years ago, the largest issue the union wanted to address was not salary or benefits - but special education, she said.
"We need support," she said.
Under the U.S. Individuals with Disabilities Education Act, students must be placed in the "least restrictive environment." Schools are required to provide all students with free appropriate public education, commonly known as "FAPE," in the least restrictive environment. To the greatest extent possible, students should be educated with non-disabled peers, according to federal law. Placing special education students, sometimes those with autism or other learning disabilities, in regular education classrooms is known as inclusion.
In classrooms across Scranton, students with autism, severe developmental disorders and those who require emotional support services, sit next to regular education students. Teachers are responsible for adapting curriculum to meet the needs of all students. Some critics of inclusion say the practice can hinder the learning process of regular education students.
In order to provide better education to all students in Scranton, more special education teachers and aides need to be hired to support regular education teachers, Ms. Boland said.
More professional development for teachers is needed, and the union has grieved the lack of programs, she said.
And full inclusion must be reconsidered, she said.
Mr. King said an additional eight full-time and one part-time special education teachers were hired at the start of this school year, and because of federal law, the district has no choice but to continue with inclusion.
"We have a responsibility to deliver the highest level of education to students regardless of their disability," he said.
Had the state alerted the district of its high number of cases compared to other districts, change would have come sooner, Mr. King said.
State involvement
The state does not track how much money districts pay for settlement agreements or to attorneys. Nor does the state automatically alert districts if it has an abnormally high number of cases, compared to other districts.
Data is available to school and the public only through copies of annual reports of the Office for Dispute Resolution.
That office collects data annually on mediation, due process and other issues with special education. Field staff from the department's Bureau of Special Education audit special education programs at least once every six years.
When a due process claim is filed, the first concern is that the child is not receiving appropriate services, said Carolyn C. Dumaresq, Ed.D., the state's deputy secretary for elementary and secondary education.
"You first worry about the child," she said. "Then it becomes a fiscal issue."
Anytime a due process claim is filed, the state is concerned, Dr. Dumaresq said.
"Doing special education well does incur additional costs," she said. "If we do it right the first time, we don't have the attorneys' fees."
Reform needed
In the last five years, Abington Heights, with an average of 432 special education students, has been involved in the litigation of 27 cases.
In 2011, the Pennsylvania Department of Education launched an inquiry into why there were so many due process requests. After a thorough review, no findings were reported and the matter was considered closed, according to an August letter from the department.
Superintendent Michael Mahon, Ph.D., said there is a disconnect between the quality of services the district provides and process that brings about the due process claims.
"Sadly, when we do in-services for special education staff, we are as much focused on legal defense as we are on providing services to kids," he said. "The process is such that lawyers who file due process claims, I think, view school districts as a source of easy money."
Special education law is complicated, and when due process is requested, lawyers will file for many possible technical violations. If one small technical violation is found, the district can be liable for both a compensatory education judgement and the fees for the opposing attorneys, Dr. Mahon said.
Many districts often settle before it goes to a hearing to avoid additional legal costs. Going to a hearing could cost the district $10,000 for its own attorney fees, and plaintiffs' attorneys often charge $300 an hour, Dr. Mahon said.
"So very often, districts are in a position that in order to protect taxpayer money, they often end up settling cases they would like to go and fight."
Sometimes, a settlement could be $1,000 for the education trust, and then $10,000 in opposing attorney fees, he said. Since July 1, the district has paid $59,000 to opposing attorneys for this fiscal year, Dr. Mahon said.
"It's drawing money away from the students, from the special education and regular education students," he said. While "we respect the parents and the students for their advocacy on their own behalf," lawyers use the system like a "weapon."
With an average of 204 special education students, Dunmore has had 19 requests for due process in the last five years. But several of those cases were initiated by the district, after parents refused to attend meetings to create individualized education programs, Superintendent Richard McDonald said.
An IEP is mandated by the Individuals with Disabilities Education Act and outlines the objectives and plan for a special education student.
Effect of lawyers
Clarence Lamanna, Ed.D., executive director of the NEIU, and previous director of special education for the agency, said he did not realize that the districts within the intermediate unit had a greater percentage of special education students involved in litigation than any other part of the state.
The intermediate unit often provides special education services to districts, though the students' home school districts are ultimately responsible for evaluations and placements.
Dr. Lamanna took issue with statements by the area's special education lawyers about the region being behind the rest of the state in implementing reforms and new teaching methods.
The NEIU works with state models, including a system for professional development. The way each district implements the information may vary, but there is no systematic problem of the region being behind other areas of the state, Dr. Lamanna said.
He blamed the high number of cases on the presence of local lawyers, who seek out parents. One area lawyer recently held a seminar at a local hotel, inviting parents to learn more about their students' rights, Dr. Lamanna said.
Emily Leader, deputy chief counsel for the Pennsylvania School Boards Association, also said the presence of local lawyers can make a huge difference in the number of claims.
"The more informed the parents became, the more claims you have," she said.
Like Dr. Mahon, Dr. Lamanna also called for reform of the system.
"It's not the way it should be," Dr. Lamanna said. "It's not the way anyone wants to spend their time or money, except the lawyers."
Contact the writer: shofius@timesshamrock.com, @hofiushallTT on Twitter