State overhauls appeals system for parents of disabled students

Four years passed while Jeff and Tanya Holland fought their local school system over services for their son, Ben, who has autism.

During that time Ben changed grades, schools and even school systems, going from Johnston County schools to Wake County schools, so he could get more services. His parents say they racked up hundreds of thousands of dollars in legal fees and bills for outside therapies meant to help their son.

They fought, from 2011 to 2015, over the services Johnston County had provided.

“We felt like his upward movement had just been totally destroyed,” said Jeff Holland, a teacher in Wake County.

In the end, a federal magistrate ordered the two sides into a mediation that ended with the Johnston County school system paying the Hollands $200,000. The system admitted no fault, but the settlement reversed key elements of decisions made in two previous reviews of the case, and the federal magistrate who oversaw this final appeal roundly criticized the path that brought the case before him.

Believing the deck had been stacked against them during part of the review, the Hollands pushed for changes to the complex and drawn out process parents can use in North Carolina to enforce the Individuals with Disabilities Education Act, a federal law that requires schools to provide a “a free appropriate public education” to children with disabilities. Last month, they were successful.

Cases like the Hollands’ are why state lawmakers made changes this year to an appeals process that attorneys who represent families say was unfair. But some education officials say those changes could actually hinder families’ ability to get more services for their children.

Embedded in the state budget by a powerful lawmaker this year are a few lines that strip out the middle step in a process that’s rarely used in North Carolina but frustrates the families and attorneys who use it.

When families and school systems don’t see eye-to-eye on the extra services a child needs, the first step for them is a hearing before an administrative law judge. It’s a quasi-judicial process that proceeds much like a regular court case.

Until now, if families or school systems didn’t agree with the judge’s decision, they could appeal to a State Hearing Review Officer, a position appointed by the Department of Public Instruction, the state-level agency that oversees public schools in North Carolina.

Under the old system, only after the hearing officer weighed in could families take their case to court—an oddity in North Carolina, where few if any other state agencies are allowed to pick review officers when someone disputes a decision.

Under the new system, appeals will go straight from the administrative law judge to the courts system.

For Jeff Holland the middle step was an inherently unfair one, requiring him to plead his son’s case before an adjudicator selected by the other side. Attorneys who represent families in this system said these reviews often were a stumbling block. Holland said he believes these officers were “there to insulate the school system from having any large payouts.”

School officials, the state school boards association and an outside attorney who handles these cases for school systems, all acknowledged a need for change. But school boards fought this particular change. Special education attorney Carolyn Murchison called it “a disservice to parents and districts.”

The eliminated review “added very little monetary expense or stress to cases,” Murchison said, “but it allowed a second set of eyes.”

The Hollands brought their issue to Sen. Brent Jackson, who represents parts of Johnston County. He’s also a lead budget writer in the North Carolina Senate.

Jackson’s staff researched the issue and produced an alarming statistic: Of the 16 cases that went before a state hearing review officer since 2006, the officer found in favor of the school system 15 times, Jackson said.

This is in dispute. Blair Rhoades, spokeswoman for the Department of Public Instruction, said it “doesn’t appear to be in line with data we have.”

Murchison said the statistic “doesn’t make any sense to me” because these cases are too complicated to produce a simple winner or loser. “They’re almost always split decisions,” she said.

But the finding jibed with the feeling among the small number of attorneys who represent parents in this field. Asked whether he felt state hearing review officers were biased toward school systems, attorney Jeremy Adams said that “might be a record understatement.”

“You would have a kid who has a good case, but you can’t get any resolution for years because they’ve got all these roadblocks in place to slow parents and kids down from getting help,” Adams said.

Adams said he had one case take eight years, from start to finish.

“That kid’s 22,” Adams said. “He’s never getting help.”

Bruce Mildwurf, a lobbyist for the N.C. School Boards Association, said any calculation of cases won or lost is skewed because the majority of these cases don’t even become cases. School districts work with parents at the outset, he said, coming to an agreement on behavioral therapy and other services because school districts want to help children. Mildwurf is a former WRAL News reporter.

Mildwurf said there is no debate the appeal system is “extremely complex, expensive and time consuming.” In discussions with Jackson and his staff during this year’s legislative session, Mildwurf suggested changes on the front end, limiting the time administrative law judges have to hold hearings to keep that part of the process from stretching out for months.

The Hollands’ initial case before the administrative law judge played out over nearly a year. The next step, the state hearing review officer step lawmakers are deleting from the process, took about a month.

Ann Paradis, an education attorney who represents families in these proceedings, said the hearing review can be an in-depth process, though. She said her last filing in one of these reviews was 50 pages long and took her office 60 hours to prepare. This was a case, she said, that her side largely won in front of the administrative law judge but had to defend when the school system appealed.

“It used to be that we had to go through two administrative layers to get to court, and now we only have the administrative hearing,” Paradis said of the process change. “It’s going to be better.”

Rhoades, the DPI spokeswoman, said the agency is troubled by the change because full-on lawsuits are more expensive than the hearing reviews. “Many parents will lose the option of appeal because they cannot afford to move forward in the court system,” she said in an email.

The issue almost didn’t move forward at the statehouse. Jackson’s initial measure making the change, Senate Bill 593, cleared the state Senate last May on a 33-16 vote. The House never gave it a hearing, though, so Jackson put its guts into the state budget, letting it ride into law within hundreds of pages of less controversial policy.

Jackson, R-Sampson, said he’s open to more reforms down the road. But he also said the Department of Public Instruction was one of the only state agencies, if not the only state agency, empowered to pick hearing review officers instead of seeing administrative law judge decisions move straight to court.

“We’ve tried it this way for a long long time,” Jackson said. “So let’s try it the new way. … I want it to work. I want it to be fair, and I want it to work.”

Adams said the change “fixes one problem, maybe the biggest problem, but we need a philosophical shift.”

“I’ve gotten to the point I don’t take older kids as clients in these cases because there’s no way I can help them,” he said. “I think we’ve got a system that lets the clock run out.”