Parents can be silenced in special education settlements. A proposed bill would change that.February 1, 2022
Karla knew something was wrong. Her daughter still couldn’t read by the time she reached the fifth grade.
In early elementary school, Karla’s daughter was diagnosed with an auditory processing disorder, among other conditions. Her daughter’s school district in northwest Indiana provided her with special education services under an individualized education program, or IEP, intended to help her progress.
But Karla said her daughter had failed to make significant academic gains during her fourth grade year. She was concerned the school was missing something.
Karla paid thousands of dollars to have her daughter evaluated by a neuropsychologist. She scored a 91 on a nonverbal intelligence test, which placed her in the average range. That was nearly 50 points higher than what the school reported from its own IQ testing, which placed her in the extremely low range.
The results validated Karla’s suspicion about her daughter’s potential.
“My daughter was average. She was smart enough,” Karla said. “And the school was not giving her the credit that she needed.”
Armed with the independent report, Karla asked school staff to add the neuropsychologist’s recommendations to her daughter’s IEP at the beginning of her fifth grade year; those additions to help in the classroom included a one-to-one paraprofessional and a specialized reading program, among other requests.
But Karla said school staff refused.
Karla and her husband were desperate to get their daughter the help she needed. They hired an attorney who initiated a request for due process — a complicated legal proceeding intended to resolve disputes between families and schools over special education services. Under the federal Individuals with Disabilities Education Act, parents can request a due process hearing if they believe the school isn’t meeting its legal obligation to provide their student with appropriate services, accommodations or placement.
In Indiana there are about 90 requests for due process every year. Very few of these cases wind up in hearings before an impartial officer who decides the case. Rather most requests result in settlement agreements between schools and families.
WFYI spoke with multiple special education attorneys, advocates, parents and experts who say schools frequently request non-disclosure agreements or confidentiality agreements as a condition of a settlement.
It is an approach, a WFYI investigation found, that prevents parents from talking to other parents of children with disabilities about their experience. And it leaves parents in fear that a school district may take legal action against them for a perceived violation of the clause.
That’s what happened to Karla.
Her school district agreed to settle the case so long as Karla agreed to an indefinite NDA.
Karla said her attorney tried to negotiate, but the district refused to take it out of her agreement.
WFYI isn’t using Karla’s full name, identifying her daughter or her school district to both protect her daughter’s privacy and because Karla fears retaliation from her school for speaking out.
Karla said the agreement contained services for her child that she believed were imperative to her academic success and development.
“We had to look at the greater good,” Karla said about the family’s decision to sign the settlement with the NDA. “[My daughter] was already very behind. And the longer we fought, the longer it was going to take and the more she was going to lose.”
Karla is one of an unknown number of parents in Indiana who have agreed to an NDA as a condition of their settlement agreement.
The NDA continues to bother Karla. She wants to share her experience with other parents, but she’s fearful that doing so could lead the district to come after her for violating the agreement.
“It makes me feel like they still have some sort of power over me, because they can still control what I say about this,” Karla said.
Now, proposed legislation in Indiana would bar school districts from requesting parents sign NDAs, confidentiality agreements and non-disparagement clauses as a condition of a special education due process settlement or as part of the resolution of a special education dispute. Advocates of the measure say NDAs harm families of students with disabilities, while opponents say NDAs are a useful litigation strategy, and their elimination could result in more due process requests. The Indiana House has already approved the bill, and it is expected to be considered in the Senate in the coming weeks.
“I think probably every initial settlement agreement that we’ve received from a school district will include some form of confidentiality in it,” said Tom Crishon, legal director for Indiana Disability Rights, an independent state agency and legal organization that represents parents of students with disabilities.
“Oftentimes [NDAs are] even coupled with what’s called liquidated damages clauses,” Crishon said. “So if there is a perceived violation, it’s a set sum of money that the family would owe the school for violating that part of the agreement — which are often confusing and ambiguous.”
Rep. Ed Clere (R-New Albany) authored the proposed legislation, House Bill 1107, with help from Crishon and the Arc of Indiana, an advocacy organization for people with disabilities.
Both Clere and Crishon say there’s a power imbalance between districts and families in disputes over special education. While schools do not have unlimited resources, they have far more at their disposal than families, Clere said.
“Nondisclosure agreements put families in a terrible position,” he said. “They cause families to fear financial consequences for talking about their experiences and that deprives other families of learning from those experiences.”
Experts, advocates, parents and school district officials all agree that due process proceedings are extraordinarily stressful, time-consuming and expensive endeavors. It’s not uncommon for a family to accrue upwards of $10,000 in legal fees. Additionally, families of children with disabilities often feel alone in their struggle to obtain appropriate services, and Crishon said adding an NDA to their plate increases that sense of isolation.
Clere said the proposed legislation won’t force families to speak openly about their experiences, but it gives them the option to if they want.
Additionally, Crishon said NDAs shield schools from accountability.
“We’re talking about publicly-funded school districts who are provided funding to give appropriate services to students with disabilities hiding behind confidentiality agreements,” he said.
If passed, the legislation could be a one-of-kind law, according to Perry Zirkel, a professor emeritus at Lehigh University who studies special education law. Zirkel said he conducted a search of all state laws and regulations related to special education.
“And I found nothing that was even close to this,” he said. “So I think it is a very unusual provision.”
A policy associate with the National Conference of State Legislatures told WFYI a search through state statutes and consultation with the National Center for Learning Disabilities found no examples of this policy in other states.
Support for confidentiality
But not everyone agrees these settlements should be public. Special education administrators from across the state spoke against the measure during a recent House Education Committee hearing. Many feared that the elimination of NDAs would increase the number of due process requests — which they said typically cost between $10,000 and $30,000 per case — and pull staff away from classroom and administrative duties.
Angie Balsley, president of the Indiana Council of Administrators of Special Education, was one of the administrators who testified. In an interview following the hearing, Balsley said she understands that parents want to talk about their children and their experiences in their school districts. But in settlement agreements, Balsley said schools may compromise by offering services that are “above and beyond what they normally would do.”
The federal Individuals with Disabilities Education Act requires schools provide a free, appropriate public education to students with disabilities. Balsley said conflicts arise when parents and schools disagree over what an appropriate education entails.
Balsley is also the executive director of Earlywood Educational Services, and she said she’s been involved in multiple settlement agreements — and nearly all included an NDA.
She said school districts may agree to a settlement even if they believe they could win the case in a hearing. That’s because the hearings themselves can last a week or longer, require intensive preparation and take staff away from their job duties.
She said the NDA clause is a litigation tool executed in the “spirit of compromise and collaboration.” And Balsley worries that allowing parents to publicize their agreements will result in more parents filing for due process as a means to get educational services for their children.
“It’s just a general feeling amongst special education directors that you don’t want those very specific remedies in that situation to be shared publicly, as we fear that they might [lead] everybody [to feel] that’s their way to get that answer for their own child,” Balsley said.
She added that every child with a disability needs individualized services; it’s not a one-size-fits-all approach.
Balsley said she believes the state should focus more time on promoting alternatives to due process, including mediation and facilitated IEP meetings.
Alexandra Curlin, an Indianapolis-based attorney who represents both parents and school districts in special education disputes, said the NDA portion of the proposed legislation is “at best, unnecessary, and at worst overreaching.”
Curlin said attorneys can structure confidentiality agreements that allow families to talk about their experiences without disclosing the terms of their settlement agreements.
“What this legislation teaches me is that the people who wrote this legislation are missing a lot of information about the reality of what special education litigation is,” she said.
Zirkel, the Lehigh University professor emeritus, said NDAs provide potential advantages to both parents and schools, but he acknowledged that schools likely reap the most benefit from these clauses. In situations where schools agree to pay for a student’s costly services, like a placement in a private school or a residential setting, the disclosure of that information could anger taxpayers who think schools are spending too much money on an individual student.
Under IDEA, parents aren’t entitled to monetary damages in a due process proceeding, however, they can receive reimbursement for expenses like tuition for private school placements, independent evaluations, and attorneys fees.
“I find in some cases that parent attorneys like these confidentiality clauses … because part of the agreement is that they’re going to get their fees,” Zirkel said. “And that ticks off a lot of taxpayers.”
He said the legislation could have unintended consequences such as fewer settlements for families.
School attorneys may be more likely to settle with parents if they can keep the details hidden from public view, Zirkel said. If they can’t guarantee that the details of these cases won’t be publicly shared, then they may be more likely to go to a hearing, in which there are higher costs for both sides.
“There’s a cost of time, there’s a cost of attorneys, there’s a cost of emotions. And there’s a cost of this child just sort of waiting to get this whole thing resolved,” he said. “And those costs of transactions get even worse once the due process decision is appealed by either side.”
Zirkel has studied the outcomes of due process hearings, and he found that independent hearing officers are more likely to side with schools than parents in these cases.
“Districts win the clear majority — it’s a sort of two-to-one ratio,” he said.
The reason hearing officers frequently side with schools, Zirkel said, is due in part to school administrators’ perceived expertise. There’s also a power imbalance between districts and parents, especially when parents can’t afford to hire an attorney, he said.
Settlement agreements are likely public records
While districts may pressure parents to sign NDAs in a bid to keep these cases underwraps, Zirkel said settlement agreements are likely public records. WFYI spoke with multiple attorneys who agree that these documents are subject to the state’s Access to Public Records Act.
Zirkel compares special education dispute resolutions to an iceberg; the only publicly available information about these cases are contained in hearing officer decisions and other court documents — in other words, the tip of the iceberg. Settlement agreements — while they may be public record in theory — are not posted publicly.
“The vast majority of this iceberg is below the water and very few people know what the hell is going on,” Zirkel said.
Indiana Public Access Counselor Luke Britt said he believes these agreements are public record and that “95 percent of the time those NDAs are going to be unenforceable as written if they attempt to shield otherwise disclosable public records from disclosure.”
Crishon, with Indiana Disability Rights, also said “it’s very likely they are public records.” But the problem is that parents may not know that these NDAs aren’t enforceable, nor do they want to go to court to fight schools on the issue.
“They’re probably going to be scared enough not to discuss or share any kind of information, which goes back to, you know, not being able to obtain support or give support to other families who are experiencing similar issues,” Crishon said.
The proposed Indiana legislation could offer a unique peek into the issues addressed in settlement agreements; the bill would require schools to send their settlements to the Indiana Department of Education on an annual basis. The department would create and maintain a database that includes the types of issues addressed, either explicitly or implicitly, in these agreements.
A spokesperson for the Indiana Department of Education, Holly Lawson, wrote in an email that, currently, the department does not receive copies of due process settlement agreements and therefore is unaware what’s included in these agreements or whether they include an NDA.
‘Really frustrating and sad’
It’s been several years since Karla, the parent in northwest Indiana, agreed to the settlement with her daughter’s school district. Yet, she still lives in fear that her school district might take her family to court.
“What [the school district] could do, should they have reason to pursue, would be absolutely devastating to my family,” Karla said. “They still have power.”
The good news is Karla’s daughter is doing well. While she hasn’t caught up to her peers, Karla said she’s on the right track, and attributes that improvement to the additional classroom and other services provided under the settlement agreement.
Had she not fought for her daughter’s educational rights, Karla said she would have fallen further behind in school, “and she was not going to reach her highest potential that way — she wasn’t even going to get close to it.”
But she still feels muzzled by the NDA.
“I can’t fully support my friends who are special needs parents when I have to be careful about what I say, as far as our whole journey with the school system and how that has gone. And that’s really frustrating and sad.”
This article was originally posted on Parents can be silenced in special education settlements. A proposed bill would change that.