A new complaint filed with the Department of Education and Workforce (DEW) alleges Warren County students are losing special education services because the department bowed to pressure from local officials and sidestepped usual procedures to reconsider its own past findings of special education violations. However, the Warren County Educational Service Center (ESC) filed its own lawsuit Tuesday against DEW and said it plans a federal complaint against DEW and the advocacy nonprofit involved in the matter. The ESC argues it is trying to preserve families’ rights.

Disability Rights Ohio, the nonprofit officially designated to advocate for Ohioans with disabilities, filed the complaint recently on behalf of one Warren County family and any “similarly situated” students. This latest complaint stems from a prior complaint DRO filed in 2022 with DEW – then known as the Ohio Department of Education (ODE) -- against the Warren County ESC and its client school districts.

Following the initial complaint, the Office for Exceptional Children at DEW investigated and issued findings and corrective action plans for the ESC and districts, including awards of compensatory education services for students who had not received the “free and appropriate education” (FAPE) to which they were entitled under federal law.

Federal law requires states to designate an entity to run a protection and advocacy system (P&A) and client assistance program (CAP) for people with disabilities as a condition of receiving some federal funding. DRO was formed to assume that role more than a decade ago, taking over responsibilities previously performed by a state agency, Ohio Legal Rights Service.

DRO states in the complaint that families were not notified of the findings nor the compensatory education awards, and that through threats of litigation the local schools convinced DEW to pause the corrective action plans and reconsider the findings.

“DEW leadership kept this process hidden for more than nine months, and ultimately made unilateral changes to the corrective action plans that significantly reduced or eliminated awards of compensatory education,” the complaint states.

DRO argues this not only cost students services, but bypassed the due process protections that govern these disputes.

“The biggest problem I guess you could say here is they pursued a remedy that prevented families from knowing what was going on and having any kind of due process in the proceedings. It was kind of a backdoor way for them to try to overturn the findings without the families and the children knowing about it and being able to complain or exercise any rights,” Kristin Hildebrant, senior attorney and education team leader with DRO, told Hannah News in an interview.

Contacted for comment on the dispute, Warren County ESC Superintendent Tom Isaacs told Hannah News in an email the ESC planned to file a lawsuit Tuesday against DEW in Warren County Common Pleas Court, and would be pursuing a federal complaint against both DEW And DRO.

“I certainly agree with DRO that ODE/DEW completely mishandled this matter, but obviously for different reasons than those cited by DRO in their complaint,” Isaacs wrote.

The litigation, filed later Tuesday and assigned to Judge Timothy Tepe, seeks a restraining order and injunction to block DEW from enforcing corrective action plans outlined in letters to the Warren County ESC from December 2022 and January 2024. The complaint argues DEW lacked authority to accept DRO’s filing of a systemic complaint, and failed to give the ESC and its client schools an opportunity to rebut the complaint. It states DEW wrongly presumed students assigned to the ESC’s Wellness Center were not receiving their free and appropriate public education because they temporarily do not receive instruction in science and social studies, as the center’s programing is designed to focus 80 percent on mental health and 20 percent on math and English. “Students are only placed at the Wellness Center when an IEP team or 504 team has determined the student has extreme mental health needs that can no longer be served in the least restrictive environment then in place for the student … parents/guardians and IEP teams who place students at the Wellness Center thus make an explicit individualized determination that FAPE is appropriately provided in a school day that consists of an 80 percent focus on mental health with the remaining 20 percent focused on math and English language arts,” the complaint states.

Gary Stedronsky, an attorney with the firm Ennis Britton representing the ESC, said Tepe plans a hearing Thursday morning on the request for a restraining order.

“As you will see, we do not believe the Ohio Department of Education and Workforce had the legal authority to accept the so-called ‘systemic' complaint that Disability Rights Ohio filed against the Warren County Educational Service Center or to issue the corrective action it did. In addition, the corrective action that DEW issued to the ESC is wholly unsupported by special education law because it takes away parent-choice to place students with the most significant behavior and mental health problems at the ESC's Wellness Center. DEW cannot second-guess the decisions of parents and IEP teams or take away free mental health services from students who have tried to commit suicide or harm others. The ESC will fight to maintain its programming because it is what students and school districts temporarily need during very difficult times. These placement decisions should be left to parents -- not bureaucrats in Columbus at DEW,” Stedronsky wrote in an email.

DEW had not responded to a request for comment as of late afternoon Tuesday.

DRO’s complaint argues that the procedures for handling these disputes, as outlined in DEW policy, allow for filing a due process complaint, as DRO did, or pursuing mediation. Reconsideration is not an option, Hildebrandt said. She also emphasized that due process protections are designed to protect families and students, not school districts.

“The irony, I think, is that this process that we helped the parents originally pursue, this complaint process, the due process aspect of the federal law, is not owned by the school districts. It is owned by the parents and children … essentially the ESC and the school districts made it so the families and the children were not able to exercise the right that is specifically in the federal law for them,” she said.

In addition to having DEW restore compensatory education awards and notify families about them, DRO also is asking that DEW evaluate whether additional students are due compensatory awards. Hildebrandt said in investigating the initial complaint, DEW reviewed a sample of about 200 students at the ESC, but there are hundreds more who are potentially affected.

Hildebrandt said compensatory awards are one of the few remedies available for families in these types of disputes. They could involve, for example, a student who did not receive needed speech therapy services outlined in an individualized education plan (IEP) getting two sessions per week instead of one to make up for missed services in the past.

Hildebrandt said DEW’s approach to the situation surprised her.

“This is something that we have never seen before. I’ve been doing this job for 35 years, so over the years I have filed a lot of complaints, and I’ve seen the process play out, and this was a completely unexpected, unusual thing for the department to do,” she said.

The DRO complaint and Warren County ESC complaint are at www.hannah.com >Important Documents & Notices>Library.