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Reported on March 14, 2022 by Noelle E. C. Evans - WXXI News

RCSD special education students get more legal support

Families of students with disabilities reached a new legal agreement with the Rochester City School District earlier this month.

Last week, a federal court approved something called an “amended consent decree” that addresses lawsuit claims brought forth by parents of students with special needs in 2014. The decree requires the district to demonstrate improvement in providing timely services, improving graduation rates, and increasing parental involvement of students with disabilities. Attorney Maggie Robb with Empire Justice Center worked on the case. Some of the grievances reflected legal concerns over systemic failings dating back to the early 1980s. “Empire Justice Center very quickly learned that students with disabilities were again, not receiving the resources they deserved and were entitled to under the law in a systemic way,” Robb said.

Part of those grievances included a lack of certified special education teachers, and lack of adequate translation for families of students whose first language isn’t English, Robb said. One of the solutions agreed to is the use of a parent helpline that parents can call with concerns, which the district would be legally required to keep a record of. The District Parent Support line has been available at least since the court first approved the settlement in February 2021.

“This case has always been about students with disabilities and their families,” Robb said. “We want them to know that we are here to help enforce their civil rights so they can achieve academic success and prepare for life beyond high school.”

Attorney Carolyn Nussbaum with Nixon Peabody said the case was unique in that it was brought forth from a grassroots effort by families.

The district did not provide comment.

Reported on January 27, 2021 - Justin Murphy, Rochester Democrat and Chronicle

FORMER TOP RCSD ADMINISTRATOR CHANGED SPECIAL ED DOCUMENTS, FACED LETTERS TO PARENTS

Dan Fontanez resigned in October 2020 after improperly altering the records of special education students and faking letters to parents.

A former top special education administrator in the Rochester City School District improperly changed the dates on student records and falsified documents to make it seem that parents had been consulted about services for their children, when in fact they had not been, according to an internal investigation.

The administrator, Dan Fontanez, resigned October 21. That is one day after the investigative report, obtained by the Democrat and Chronicle through a Freedom of Information request, was completed. Chief of Special Education and Related Services Kisha Morgan, meanwhile, resigned from RCSD Jan. 13 after having been on administrative leave. This most recent chapter in RCSD's special education troubles began in the fall of 2019, after a consultant observed that someone apparently had improperly changed the dates on some students' individualized education plans (IEPs) in order to align them with Medicaid billing requirements.

That tip was forwarded to the state Education Department as well and resulted in a monitoring review. In September 2020, RCSD directed one of its own internal investigators to see whether Fontanez, one of two top deputies in the special education department, had altered student records. The investigator, Tom Janssen, found 153 students whose records Fontanez had altered illegally by changing the IEP end date to match the prescription for Medicaid services. All were done over a single weekend in October 2019. When a colleague told him that doing so would be illegal, according to Janssen's report, Fontanez replied, "the State will never know."

Fontanez told Janssen that the decision to change the IEPs was not his. Instead he said someone else, whose name was redacted in the report, made the decision, but that he carried it out himself with a direct prompt. "When asked if (redacted) ordered him to make the changes ... Fontanez stated that she did not, he knew he would be able to make the changes fast, as he is really good with the system, so he made the changes over a weekend," the report states.

Fontanez admitted he hadn't sent letters notifying parents of the changes, according to the report, saying it "has not been the process of the District" to do so. It is in fact federal law that such notice be provided. State Education Department officials also had flagged cases where students' IEPs were changed without parents having been asked for input. Janssen found one instance in 2018 where Fontanez created a false paper trail allegedly demonstrating four attempts to contact a parent regarding their child's IEP.

Fontanez could not be reached for comment, and RCSD declined to comment on the report. When asked about potential criminal charges, RCSD General Counsel Steve Carling said that decision would be up to state prosecutors, and that he wasn't aware of anything pending.

Morgan was placed on administrative leave in late October, the same time Fontanez resigned. The department is now being led on an interim basis by Deserie Richmond, the former special education director in Spencerport. In an interview Tuesday, she said she resigned in order to pursue other opportunities. She noted that the Fontanez investigation found no wrongdoing on her part and pointed instead to the accomplishments of her tenure, which began the same week as the death of 14-year-old special education student Trevyan Rowe.

Under Morgan, the district put in place protocols to prevent another such tragedy from occurring and also worked to reduce racial disproportionality in suspensions and special education classification. "I took over at an extremely difficult time for the department with the loss of Trevyan, and the work my team did is significant," she said. "I pray for the students (in Rochester) and pray the work I began there continues." Morgan's resignation comes at the same time the district and Empire Justice Center finally announced in public their imminent settlement of a federal consent decree to guide improvements in special education.

Failure to properly inform parents of changes to their children's IEPs was one of the many long-standing issues the consent decree is meant to resolve.

Reported on January December 3, 2020 - Justin Murphy, Rochester Democrat and Chronicle

RCSD AGREES ON TERMS FOR SPECIAL EDUCATION CONSENT DECREE

After several years of fitful negotiations, the Rochester City School District and the Empire Justice Center have drafted a final agreement on a consent decree meant to solve the district's special education woes. Late last month they filed in federal court a document known as a "stipulation of agreement," laying out the steps the district will take to improve special education, the targets it must meet and the consequences if it fails to do so.

There are 14 such targets ranging across a variety of measures: academic performance, student discipline, parent participation, having students in the least restrictive setting and ensuring staff are properly trained and certified. Each target has interim and final benchmarks that are supposed to be met by June 2022. One standard relies on students' performance on state math and English exams and was extended to June 2023, since testing has been canceled due to COVID-19.

There is also room in the consent decree for the district to negotiate for a "remedial action plan" when it finds it will not be able to meet a goal in time. Ultimately, though, if RCSD does not live up to its promises, the agreement requires the installment of both a "special master" to oversee compliance and a monitor to ensure accurate reporting. It also would need to pay EJC's legal fees, which otherwise are being waived.

The agreement is not yet final. The two sides will appear in court next week to ask Judge David Larimer to certify the classes for the class action lawsuit and to grant preliminary approval of the decree. Larimer would then also schedule a hearing for final approval. RCSD and EJC both declined to comment on the progress.

Forty years of problems

When final, the consent decree will represent a landmark in the district's decades-long struggle to educate students with disabilities, who now make up nearly a quarter of the student body. It will be the second consent decree; the first was negotiated after a similar lawsuit in 1981. A series of reports and analyses over the last 10 years have greatly clarified the problems but done little to solve them.

The movement toward the current consent decree began in March 2015, when EJC lodged a formal complaint on behalf of 20 Spanish-speaking special education familes in the district. It later led to a school board-commissioned committee on special education, whose recommendations form the basis for the consent decree.

RCSD must now stay on track with the consent decree benchmarks as it navigates both a multi-year budget crisis and an apparently intensifying special education investigation by the state Education Department. The special education department is being run by interim chief Deserie Richmond; the previous leader, Kisha Morgan, is on administrative leave in relation to the state investigation.

Reported on October 9, 2020 - Justin Murphy, Rochester Democrat and Chronicle

RCSD SPECIAL EDUCATION IN TROUBLE AGAIN, WITH LEADERS ABSENT

The Rochester City School District's special education department once again finds itself under scrutiny from state investigators while at the same time the department leader is on a lengthy leave of absence, leaving parents of children with disabilities frustrated in their attempts to turn around a disastrous start to the remote school year.

Chief of Special Education Kisha Morgan and one of her top deputies, Dan Fontanez, have been out of work since before the school year began. Morgan has been on medical leave while Fontanez is on paid administrative leave, according to RCSD.

State Monitor Shelley Jallow, meanwhile, requested the New York state Education Department (NYSED) restart a special education review that had been put on hold because of COVID-19. The full scope of the review is unclear but includes problems with Medicaid billing and giving children all the services to which they're entitled.

Deputy Superintendent Melody Martinez-Davis has assumed control of special education despite having no background or certification in the area. She is being assisted by Deserie Richmond, the former Spencerport special education director, who was initially brought in this summer to do an internal special education review. Parents and advocates say the lack of leadership is apparent. Children, particularly those with the greatest need, are floundering at home.

"The special education department has really gone very silent," said Cheryl Carleton, the mother of a child with Down syndrome and president of the Special Education Parent Advisory Council. "And that’s unusual for us. SEPAC has built a pretty good relationship with them."

The most stringent oversight was supposed to come from a consent decree, agreed upon by the district and the Empire Justice Center in federal court. Yet more than 18 months after that broad agreement was first announced, the two sides still have not made it official. "It's really, really tragic," Carleton said. "I don’t know the answer, but I know we could be doing better than we’re doing."

The review

The current state review grew from a nebulous special education investigation first reported by the Democrat and Chronicle in March. The topic was, for RCSD, an old standby: whether it was giving students with disabilities the proper services and keeping up with compliance standards.

One component of that investigation started in early November 2019 as part of a larger search for spare dollars during RCSD's unexpected budget crisis last year, according to the district. The outside auditors involved in that search began to raise broader concerns about special education, leading to a separate state investigation. RCSD, the state education department and Capital Region BOCES, which conducted the audit, provided thousands of pages of documents in response to separate Freedom of Information requests. Together, those documents provide significantly more detail into how the reviews developed and what they sought.

One of Morgan's key reforms was changing the timing of children's annual Committee on Special Education (CSE) meetings where their educational plan is reviewed and approved. Previously they all were done in the spring, creating a work overload for a few months of the year. Morgan instead decided to spread them out over the entire school year, as is done in most large districts.

That change bore some immediate fruit: the number of overdue annual meetings, for instance, has fallen by about 80%. In other ways it was poorly implemented. It had the unexpected consequence of invalidating providers' prescriptions for services, which were dated according to the previous calendar system.

According to a November 2019 report from Capital Region BOCES general counsel Michele Jones, someone at RCSD may then have improperly changed some of the information in students' records after the fact to make the prescriptions and services line up. Jones also recorded staff concerns that the majority of students were not receiving the full allotment of services to which they were entitled, or were receiving services they were not supposed to; that parents were sometimes not notified of meetings; and that speech pathologists were being pressed into service as more general special education teachers. Capital Region BOCES concluded its involvement in the summer, saying RCSD had not provided all the documents it requested. But Jones sent a copy of her concerns in February to the education department.

The department already had several investigations underway touching on special education in Rochester, including one related to federal aid procurement policies. It informed RCSD that the issues that Jones raised could be potentially "significant violation(s) of federal and state special education laws and regulations," and proceeded to open its own review. That review, along with others in New York, went dormant after COVID-19 arrived in mid-March. On Aug. 24, though, RCSD Monitor Shelley Jallow wrote to request "the immediate reinstatement of the special education monitoring review activity."

The state's special education director, Chris Suriano, acceded to her request the same day. Suriano is the former RCSD special education chief; it is in large part his earlier vision for the district's special education program that Morgan has sought to reverse.

"I find it extremely ironic that Chris Suriano is the point person in Albany evaluating what is happening in this district ... when he's one of the people who got us in trouble in the first place," School Board President Van White said. Fontanez went out on paid administrative leave the following day, Aug. 25; a district spokeswoman declined to give the cause. Morgan's leave is medical and began the following week. Neither of them have returned to work, though Martinez-Davis said she expects they will both be back. Morgan declined to comment for this article, except to say that she never saw the findings from Capital Region BOCES despite asking during both former Superintendent Terry Dade and current Superintendent Lesli Myers-Small.

Fontanez declined to comment, and the state Education Department would not make Jallow available to comment. Jallow's first monitoring report is due Nov. 1. Martinez-Davis would not comment on the state investigation but said that the district is reviewing its practices in several areas, including special education, as part of Myers-Small's first few months in office.

Students regressing

Sometimes when Cheryl Carleton is home with her son Matthew, she hears his room go quiet when he's supposed to be learning remotely with his class at Edison Tech High School. She opens the door and looks in and finds him asleep in his bed. "His teacher is amazing and pretty seasoned and she’s really trying to be innovative, but our days are cut short because he just can’t do the afternoons," said Carleton, the leader of the group of special education families in the district. "These kids are losing out on their academic time for sure."

Learning in a pandemic was never going to be easy for students with significant disabilities. An entirely remote schedule, like RCSD has, makes it even more challenging. On top of that, advocates say, the district is failing to follow through on some basic requirements.

Rachel Rosner, education director for the organization AutismUp, said she has yet to speak with a single parent whose child has any access to a one-to-one aide, even remotely.

"When they're in school, these kids need support every single minute of the school day," Rosner said. "The parents I’ve talked to have not heard one peep from the person who’s supposed to be assigned to their child." Before going on leave, Morgan promised remote learning this fall would be a "night and day" difference from the spring. But a lay off of more than 100 paraprofessionals sent a shockwave through the district; Rosner said she suspects RCSD now is looking to shave costs by withholding services.

"Since they announced they were going fully remote, we've been just bombarded with parents who didn’t know how they were going to make this work for their kids," she said. "I don’t know what (an ideal district plan) would look like. But the fact is that they’re not even trying."

Martinez-Davis said mid-level special education directors are checking every student's records to ensure their required services are being appropriately ported over to remote learning. In some cases, she said, students who required a one-to-one aide in person will not need one remotely — for instance, if that person's primary responsibility was to help with using the toilet or moving around the building.

She said she had not heard widespread reports of noncompliance related to remote learning, including whether paraprofessionals are in place.

The "learning labs" in city R-Centers are not accessible for students with significant disabilities. Recreation and Youth Services Commissioner Daniele Lyman-Torres said it is the responsibility of the school district, not the city, to broaden access to the sites, since they are staffed by RCSD paraprofessionals. The two sides said they are developing an updated agreement that would "accommodate the needs of children with differing abilities," as Lyman-Torres put it. Such accommodation is required under federal law, both the Americans with Disabilities Act and the Individuals with Disabilities Education Act. Carleton said she has voluntarily reduced the number of services that her son receives because the number of transitions during the day became overwhelming for him. He learns better with paper and pencil, and she doesn't know if it's supposed to be her responsibility to print out everything he receives online. "Then, with (the remote learning technology) — I don’t even know what I’m supposed to be doing on that anymore, and I’m fairly capable," she said. "How are other families getting this? Sometimes I don’t sleep at night worrying about his fellow students."

No consent decree

The issues Carleton, Rosner and the education department cited — non-compliance with individualized learning plans, lack of communication, missing documentation — are not novel. All of them, and many others, are referenced repeatedly in the voluminous filings in the court case N.N. vs. RCSD. That is the name of the federal lawsuit the Empire Justice Center filed in July 2019. It was the culmination of several years of negotiations between the two parties, seeking a nonpunitive resolution to decades of shortcomings in special education.

In December 2018 and again in July 2019, the Rochester school board approved the outline of an agreement where the district would be required to meet a series of benchmarks within three years. Over several occasions, the parties have said that formally filing the agreement, called a consent decree, was imminent. Nearly two years later, the consent decree is still not official.

In August the school district asked a federal judge to dismiss the EJC lawsuit in its entirety. The two sides have since continued to negotiate and said in a joint statement Oct. 7 that they anticipate reaching a preliminary settlement by Oct. 15.

One key issue has been updating the agreement to take COVID-19, and the subsequent school closure, into account. Some of the benchmarks would have relied upon state testing that was canceled due to the pandemic, for instance.

EJC has been largely supportive of the changes Morgan instituted as chief of special education. Distinguished Educator Jaime Aquino, too, endorsed Morgan's direction in his report. But the department now faces a formidable set of hurdles: not only a likely set of corrective mandates from the state education department, but also its ongoing budget crisis and the uncertainty of when students will return to physical classrooms.

"The district is so out of compliance on so many issues that the person in that job needs to work on compliance issues at the same time they have a huge budget crunch," said Dan DeMarle, an independent special education advocate who works with families in RCSD and elsewhere in the county. "And those two things are incompatible." Rosner, of AutismUp, said the combined effect of COVID-19, the missing leadership and the district's financial situation already have led to irrevocable loss for the most vulnerable children in the city. "The snowball effect here — we’re talking about an avalanche," she said. "Typical students can be on pause. These kids are not on pause — they’re regressing backward and losing skills that took years and years to gain."