DALLAS — A parent of a special education student attending in the Dallas School District has filed a due process complaint alleging the district has failed to provide her daughter with appropriate special education services during the last three school years.
Audra Marsh filed the complaint on behalf of her daughter, Elise Marsh, now a seventh-grader, on Jan. 26 of this year. The complaint covers the two years before the complaint filing, but lists several incidents dating back to the 2010-11 school year.
The 59-page complaint alleges that the district failed to identify or misidentified Elise’s disabilities, failed to properly evaluate her, and failed to provide her an appropriate placement in the 2014-15, 2015-16 and 2016-17 school years.
Elise, 12, has Dandy-Walker Syndrome, a brain malformation that makes her hearing and visually impaired, among other conditions.
She has an orthopedic impairment and suffers from seizures on occasion. Her hearing, visual and orthopedic impairments all affect how she learns, according to the complaint. While attending school, Elise requires a nurse and one-on-one educational assistant.
The complaint also alleges that the district has at times failed to properly care for her daughter’s health issues while at school, and, during the times Elise has to stay home, has provided her with an hour of tutoring instead of a full-day of school.
Marsh said she filed the complaint to compel the district to offer Elise an appropriate education.
“In a perfect world, I would love to see my child excited about going to school again,” she said. “I would love to feel that she is safe and for her to feel safe, for her to be provided with an education that has trajectory — that’s going somewhere — by people who are skilled and know what they are doing.”
Marsh, who is represented by Diane Wiscarson, a lawyer specializing in special education and disability law, is asking the district to provide her daughter with “compensatory education”; to train its staff to meet the needs of her child; conduct proper evaluation, placement and establish an individual education plan — a guide to how to educate students with special needs — that identifies and addresses her disabilities; and provide a deaf-blind intervenor.
Rulings in special education cases do not include monetary awards, but rather education and staff training to make up for what the student missed.
Those costs are paid by the district, and if a judge rules in favor of the student, all costs of the hearing and attorneys are covered by the district.
Kelly Noor, the district’s lawyer, declined to discuss many specifics of the case and about Elise, but did say that Elise’s medical conditions have greatly complicated the district’s efforts to educate her.
“She has some very serious health issues, to the extent that she needs a full-time nurse,” Noor said. “Those played a huge role in everything, to the student’s ability to attend school, the student’s ability to pay attention. All of those are critical factors in looking at a very complex child.”
Noor said in the more than 10 years she’s been representing the district, this is the most complicated case she’s ever seen.
She said the due process complaint procedures are set up to find a resolution before the case goes to a hearing. Either mediation or a resolution session is mandatory. Most cases are resolved at that level, Noor said.
“When these do go to hearing, that means there are some significant concerns and disagreements about what is appropriate for the student,” she said.
The hearing has already taken three weeks to present the district’s witnesses. Wiscarson cross-examines those witnesses at the time so they don’t need to be called again. Marsh has already testified.
Wiscarson will begin presenting evidence later this month, a process which could take another week. The judge will issue a decision in early 2018.
Marsh said while Elise’s IEPs have identified her as vision and hearing impaired, they didn’t qualify her as deaf-blind until recent years. That designation could have provided Elise a deaf-blind intervenor, someone who could help provide her information about what was going on around her and what was being said.
Marsh added it wasn’t until Elise wasn’t keeping up with her peers that she discovered she needed the intervenor.
“I wasn’t really aware at the time,” she said. “The school wasn’t aware at the time. She had a one-on-one who was doing a good job and in a long-term relationship (with Elise). She had been with her for several years. As she was getting older, and the gap was increasing between her and her peers, I was becoming more educated.”
During the 2011-12 school year, the district designated Elise as intellectually disabled. The complaint said that was inappropriate because Elise never completed the evaluation. She hasn’t been re-evaluated, so her IEP doesn’t list her in that category any longer, Marsh said.
She added that she doesn’t believe there is a good test for determining Elise’s cognitive ability, but she was deeply disappointed in what she said is an assumption among some staff that her daughter couldn’t understand language.
“The problem is, if we assume there’s no cognitive ability or low cognitive ability, and we are not giving them information, we aren’t giving them the ability to show what they might be able to do,” she said.
Marsh said, even though her IEP designated her as hearing and visually impaired, when she would visit unannounced, she would find Elise in the back of classrooms where it’s less likely she could hear or see.
According to Marsh, Elise can understand language and does know how to communicate. She said her nursing staff can attest to that, and so can a speech therapist who works with Elise.
“She’s (the speech therapist) the best in the Northwest at working with children like Elise,” Marsh said. “In her professional opinion, she also believes Elise is understanding language and is communicating.”
Marsh said she’s provided the district with the therapist’s reports, and some staff members have attended Elise’s sessions, but that hasn’t made a difference.
The people working with Elise has changed in recent years, which hampered her ability to advance because the new people had to learn to work with her, Marsh said.
“Elise is waiting from them to catch up to where she already was,” Marsh said. “She essentially hasn’t had any progression for, I think, three years at this point, maybe more.”
She said the district also struggled with finding backups when her regular nurse was unavailable. That resulted in Elise staying home from school.
Noor said while the district has a responsibility to find a backup, finding people qualified can be difficult.
“It’s hard to find a nurse to work on an occasional basis,” Noor said. “There are agencies that have them, but it’s very difficult find somebody to substitute for nurses.”
Marsh said the situation degraded quickly once Elise began fourth grade. Evidence presented during the hearing from email conversations between staff members has only eroded trust further.
In one case, Elise’s nurse was advised by her supervisor to document, but not tell Marsh, when some of Elise’s medication was missing from her supplies. Marsh said some of Elise’s medication could be lifesaving, and a “safety plan” was put in place to make sure she has what she needs.
In addition, she believes her daughter has suffered educationally and emotionally in the last three years.
“I didn’t know it was this bad, and as a mother, I feel terrible making my child go to school there for as long as I did,” she said. “I should have pulled her out a long time ago because she’s suffered.
“My child used to love going to school,” she continued. “When she was in elementary school, she would wake up without an alarm and (was) laughing and giggling when the (wheel) chair lift went up on the bus. She would stick her legs out and giggle and squeal because she was so excited.”
Elise attended a few days last year and hasn’t gone to school yet this year.
“She is at home because school is not prepared for her, and I don’t feel comfortable sending her to the building at this time,” Marsh said.
Elise is receiving one hour of tutoring per day. Marsh has requested more. Wiscarson said school districts limit tutoring to one hour because that is all the state will pay for. There’s no law that dictates how much time a student can be tutored, she said.
Noor said that’s her reading of the law, as well.
“There’s a practice for a lot of schools that are doing tutoring to do tutoring for an hour at a time,” she said. “There’s no requirement around the length of tutoring. In a situation where it’s specially designed instruction, it should really be something that is related to the student’s ability to attend.”
Noor said over the years, the district has worked to pair Elise with staff members who know her and are familiar with Elise and her needs.
“This is one of those cases that the issues are so complex for this particular student. It’s unfortunate that we are in a due process,” Noor said. “It’s also I think it’s sign of how different the understanding of what those needs are between the family and the district.”
Marsh said she isn’t sure if she will keep Elise in the district. She would like the result of the case to be that Elise can return to school with her peers, but isn’t sure that is possible.
“I don’t know that even if we get everything that we ask for, if that is possible,” she said. “When you get into a situation when things get this far, relationships are damaged. People don’t trust each other on both sides, and the child suffers.”