Live 5 Investigates: Special Needs complaints, violations

CHARLESTON, SC (WCSC) - South Carolina was labeled as "Needs Intervention" for IDEA Part C determinations for six years in a row, before being labeled as "Needs Assistance" in 2017, for special needs program implementation. 

IDEA Part B determinations have been labeled as "Needs Assistance" for two or more consecutive years.

While 2017 determinations are not yet listed on this data section of the federal website, a South Carolina Department of Education spokesperson shared the 2017 determination letters, which can be found here:

Through Freedom of Information Act Requests from the state and federal departments of education, we took a closer look at IDEA complaints and violations in school districts across the Lowcountry.

Berkeley County mother Kimberly McFadden has five children. Three of them have autism and one has special medical needs. "It's very full time. We have 45 hours a week with therapists in the house between the kids." And that doesn't even count everything the kids do in school.

The U.S. Department of Education reports 6.6 million children get special needs services in schools across the country, which is about 13% of the total public school population.

All school kids with special needs should have an IEP, an Individualized Education Program. It's a detailed guideline for how teachers should work with the child. It details what therapies the child should receive, such as physical or occupational.

The Department of Education says IEPs should be reviewed in a meeting at least annually, or any time changes are needed.

That's why McFadden was so frustrated it took two months to set up an IEP meeting for her five-year-old son Tyler who has autism.

"I was desperately pushing for an IEP meeting and it wasn't happening. That was a lot of education time missed. So I filed a complaint with SCDE."

The SC Department of Education helps monitor federal IDEA, the Individuals with Disabilities Education Act.

Parents who are concerned their child's disability rights were violated can file a complaint with the state.

They can also file complaints with the federal Office of Civil rights with the USDOE.

Berkeley County Schools responded to McFadden's state complaint in a letter, admitting "that the amount of time to conduct the meeting was not reasonable."

Then in April, McFadden and her husband started picking up on clues from Tyler acting differently. They were worried something was wrong at school and started asking questions. "That's when I got the phone call saying he had been physically restrained," said McFadden. "It terrified me because I wondered how many more times he had been restrained or something had happened and they hadn't notified us."

District policy says parents should be notified by the end of the next school day if a student is restrained.

In its letter to the state, the district "agreed Tyler's parents were not notified properly."

In a corrective action letter, BCSD said it plans to bring in a legal expert, Implement staff training about use of restraint, and review restraint incidents monthly from now on because of what happened with Tyler's case.

We have filed a Freedom of Information Act request to get more information about the use of restraint in BCSD and whether the district is sure all parents were notified.

The district would not comment on Tyler's case. In a statement, BCSD spokesperson Katie Orvin said, "As this remains an ongoing and open investigation, we can offer no comment regarding this specific matter."

Orvin added, "We are very proud that in the past six years, BCSD has not been the subject of any state complaints and has not conducted any due process hearings. During that same timeframe, BCSD received only one Office of Civil Rights complaint, which was determined to be unfounded."

We obtained data from the state and federal government to find out what other types of special needs violations are happening in our schools districts.

According to the federal data provided, South Carolina complaints included problems such as disability harassment, physical accessibility issues, seclusion and discipline.  There were 259 complaints total over the last four years. The majority are settled with agreements between the districts, the Office of Civil Rights Education, and the parents involved. 8 resulted in full-fledged violations and 25 resulted in monitoring, which means extra oversight of the special needs program.

"I don't think we should have to fight as hard for the school district to do what's right," said McFadden.

Richland County Schools District 1 had the highest number of violations (45) last school year.

1 Richland 01 8 YES 45
2 York 01 1 YES 19
3 York 04 8 YES 19
4 Dillon 03 1 YES 15
5 Bamberg 02 1 YES 13
6 Williamsburg 3 YES 13
7 Florence 04 1 YES 11
8 Spartanburg 06 1 YES 11
9 Sumter 2 YES 11
10 Charleston 3 YES 9
11 Marion 1 YES 5
12 Richland 02 3 YES 4
13 Allendale 1 YES 3
14 Lancaster 1 YES 3
15 Dorchester 02 1 YES 2
16 Beaufort 3 YES 1
17 Aiken 1 YES 1
18 Clarendon 03 1 YES 1
19 Colleton 1 YES 1
20 SC Public Charter School 2 NO 0
21 Spartanburg 02 1 NO 0
22 Florence 01 1 NO Withdrawn by Complainant
23 Lee 1 NO Withdrawn by Complainant
24 Lexington 02 1 NO Resolved through mediation
25 Orangeburg 03 1 NO Pending investigation
26 Horry 1 NO Dismissed by SCDE
27 Lexington 01 1 NO Dismissed by SCDE

A spokesperson for Richland One told Live 5, "Part of our challenge is addressing service delivery for students who are in county facilities (such as the detention center), as well as for homeless students who transfer in and out of the district and for students who transfer in and out of the district for medical reasons. We have put some systems, processes and protocols in place to address those challenges."

Williamsburg and Charleston County schools were in the state's top ten districts for state violations determined by SCDE last school year. Williamsburg had thirteen violations and Charleston had nine. DD2 had two violations and Colleton County had one violation.

Seven of CCSD's violations were part of a complaint filed by Dena Davis. "If you think somethings wrong or off, you need to speak up. Because more than likely it is."

Davis' daughter Annabelle is blind and needs help moving and walking. "My sweet Annabelle is in seventh grade at Morningside in North Charleston," Davis said.

Davis documented multiple problems Annabelle had in Charleston County Schools last school year, including an incident where she fell in the bathroom and hit her forehead and nose "on the metal rail or hard plastic toilet paper dispenser," according to the school nurse incident report.

"It affected her tremendously. She was scared to go to school. Definitely. She was afraid they were going to d rop her," Davis recalled.

It also took more than two months to get bus transportation for her daughter to and from school. Annabelle's IEP specified she needed transportation and a bus aide to help her on and off.

"I didn't ask for anything more than anyone else. I didn't ask for a pink glittery bus to pick Annabelle up… I just asked for the baseline minimum that they're required to do. And they didn't do it!" Davis said.

She filed a stack of complaints with the state about the bus, the lack of a vision impairment teacher, how long it took to get Annabelle's IEP meeting and about the school failing to provide all of her service and therapy hours.

In all, the SC Department of Education found seven violations in Annabelle's case in CCSD.

In a letter to the school district, SCDE said, "there is reason for great concern that the District is not providing sufficient support for the Student, especially given the rate of the Student's fainting episodes."

"It's sad that you have to check up on your children. It's sad I had to call that many people to get action," Davis said.

She mailed packets expressing her concerns to school board members and state lawmakers.

Davis said after Live 5's preview story aired about these issues at 6:00pm Monday, she already starting hearing from some of them about trying to effort improvements.

When asked about Annabelle's case and whether special needs staffing was a challenge in CCSD, the district did not offer specifics. They did provide a statement saying:

"Charleston County School District (CCSD) believes that all complaints (formal and informal) are serious and seek to appropriately address each one as they are brought to us. As with these cases and others, we have worked collaboratively with the South Carolina  Department of Education's Office of Special Education, and where applicable the United States Department of Educations's Office for Civil Rights, along with parents to resolve all violations in a timely and agreeable fashion. Resolution is generally handled with a joint agreement of all parties which addresses specific allegations, any negative impact to the student, and the most appropriate manner(s) of resolution. There are still concerns, such as vacancies, that we continue to address, as school districts throughout the nation are doing now. In CCSD, we are fortunate to be able to fund more staffing positions than the state regulates for caseloads and classrooms for students with disabilities. We also employ procedures that include follow-up consultations from appropriate staff following any incidents or concerns brought to our attention to ensure student safety and high-quality instruction. CCSD will continue to employ positions as required by students' individualized educational programs and in alignment with the state teacher certifications."

AJ Dearybeary is a parent mentor with the SC Autism Society. While she works specifically with families and children with autism, she wants parents of all special needs kids to know schools are legally required to follow IEPs.

"A parent should never be made to feel ashamed by the district that they're being a helicopter parent, or overbearing or obnoxious. That's their child! It's their job."

One of the most common problems Dearybeary sees in school districts is the lack of specialized staff and therapists. "I think we need to be more creative. Although it's not ideal or optimal, possibly doing web cam or video therapy until they can locate somebody or improving on their recruitment of those particular positions."

Kimberly McFadden thinks the answer is oversight through technology. "There needs to be cameras in the classroom so these special needs children have some kind of voice." She has proposed her idea about security cameras to the school board and superintendent. It hasn't been approved at this point.

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