Emma C., et al v. Eastin, et al

Filing 1300

ORDER Regarding Provision of Compensatory Services, re 1297 . Signed by Judge Thelton E. Henderson on 10/08/08. (Attachments: # 1 Exhibit Court Monitor's Directive, # 2 Exhibit CDE Response 10/1/08, # 3 Exhibit CDE Tracking Log 10/1/08, # 4 Exhibit CDE Response 10/3/08, # 5 Exhibit CDE Tracking Log 10/3/08, # 6 Exhibit CDE Compensatory Education Services Plan 10/3/08, # 7 Exhibit District Response to Directive 10/6/08) (tehlc4, COURT STAFF) (Filed on 10/8/2008)

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COUNTY COUNSEL MICHAEL P. MURPHY JOHN C. BEIERS DEBORAH PENNY BENNETT BRENDA B. CARLSON CHIEF DEPUTIES COUNTY COUNSEL HALL OF JUSTICE AND RECORDS 6TH FLOOR 400 COUNTY CENTER REDWOOD CITY, CA 94063-1662 TELEPHONE: (650) 363-4250 FACSIMILE: (650) 363-4034 COUNTY OF SAN MATEO KATHRYN E. ALBERTI REBECCA M. ARCHER AIMEE B. ARMSBY CLAIRE A. CUNNINGHAM PETER K. FINCK TIMOTHY J. FOX PORTOR GOLTZ JUDITH A. HOLIBER DAVID A. LEVY GLENN M. LEVY KIMBERLY A. MARLOW JOHN D. NIBBELIN PAUL A. OKADA DAVID A. SILBERMAN WILLIAM E. SMITH V. RAYMOND SWOPE III LEE A. THOMPSON EUGENE WHITLOCK CAROL L. WOODWARD DEPUTIES Please respond to: (650) 363-4989 October 6, 2008 Via U.S. Mail and Email Mark Mlawer Court Monitor PO Box 51170 Palo Alto, CA 94303 Re: Dear Mark: I am writing on behalf of the District to respond to the correspondence from the CDE regarding the CDE's obligation to provide Compensatory Education Services pursuant to the Court's December 20, 2007 Order (the "Order"). The CDE grossly understates its responsibilities pursuant to the Order. First, the Order clearly states that the CDE shall determine to the extent to which current District providers can delivery compensatory education services. Order at 6, ll. 22-25. Next, the Order states that CDE shall contract with a sufficient number of providers to ensure the timely delivery of services. Id. Finally, the CDE shall "ensure the timely, full and competent delivery of the compensatory services." The Court did make the District responsible, under the supervision and oversight of the CDE, for notifying parents about the offers for compensatory education. Order at 6, ll.27-28. The CDE states in its October 1, 2008 letter that the District will ultimately be responsible for providing compensatory education services. This conclusion is contrary to the Court's Order, quoted above, which placed the responsibility for ensuring the delivery of the services on the CDE. As pointed out in the Directive dated September 22, 2008, the CDE has attempted to place the burden on the District for the fulfillment of tasks which the Court placed squarely on the shoulders of the CDE. The District is particularly disturbed by the fact that CDE has made Emma C - Delivery of Compensatory Education Services and the Court's December 20, 2007 Order Mark Mlawer October 6, 2008 Page 2 the District responsible for finding service providers. To date, CDE has identified only one service provider Total Education Services (TES) and it did not appear that CDE had properly vetted it prior to recommending it to the District 1 . Moreover, the CDE did not follow the Court's direction to enter into the contract with TES, but left it to the District. The CDE's claim in the attachment to its October 1, 2008 letter that it has entered into a contract to provide compensatory services is, quite simply, untrue. Viewed together with the fact that only four individual service providers have been identified to provide services--each of which was identified by the District through its efforts--it is clear that CDE has taken only limited responsibility for the delivery of compensatory education services. In its October 1, 2008 supplemental response to the Court Monitor's directive, the CDE states that the District will work towards making its facilities and transportation available for the provision of compensatory education services. The District has already done this but informed the CDE that the District needs support to provide supervision when children are present at its facilities (e.g. someone to be responsible for opening the facilities and remaining until the last student is picked up by a parent). Again, the CDE only talks of TES and makes no mention of any additional efforts to identify other potential service providers. Rather than repeat the points of the Court Monitor's September 22, 2008 Directive, the District does agree that the email from the CDE is heavily focused on tasks that the CDE wants the District to complete tasks that are the responsibility of the CDE and tasks that take District personnel away from the special education program going forward. Clearly, there is a greater role for CDE that as yet remains unfulfilled. Very truly yours, MICHAEL P. MURPHY, COUNTY COUNSEL /s/ Eugene Whitlock By: Eugene Whitlock, Deputy MPM:EW/c L:\LITIGATE\E_CASES\Emma C\2008\Response to Court Monitor Directive re Emma C..doc cc: Adam Escoto, Ravenswood Linda Lee, Ravenswood George Prince, CDE 1 This conclusion is based on conversations that the District has had with TES and the evident inability of TES to deliver the services that CDE said it could deliver.

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