For the past year, Heather Russell has home-schooled her son Ethan, who is nonverbal and, in his 17 years, has had a heart attack, 23 surgeries, and is living with cerebral palsy and floating harbor syndrome, an extremely rare disease that causes delayed bone growth and intellectual disabilities.
Russell took on that role because she didn’t want her son to be exposed to COVID-19 at school, and San Diego Unified wasn’t meeting his needs through virtual education, she said. After she joined a federal lawsuit with families across California alleging discrimination and asking for better accommodations for their children, the Russells and San Diego Unified entered into a settlement agreement in February 2022. In it the district agreed to fund “privately-obtained education services” for Ethan, releasing the district of any responsibility in educating him.
Why this matters
A San Diego Unified student with special needs was among 15 students that sued the state for education accommodations during the pandemic. The school district and the family reached a settlement, in which the district agreed to pay for the student’s private education, but the family says the district isn’t holding up its end of the deal.
A year later, she says she’s seen a fraction of the thousands she’s owed – and doesn’t see a way forward.
“He would be robbed of the basic things children without medical issues and special needs get from public education,” she said. “These are the things they’re holding back.”
At the heart of the dispute is whether Russell qualifies as a provider under the agreement.
The district contends that Russell, as Ethan’s parent, does not qualify for reimbursements as a provider of “privately-obtained educational services,” which the district agreed to pay for in the settlement. However, nothing in the agreement, which inewsource reviewed, expressly prohibits a parent from providing those education services.
About a month after entering the agreement, Russell launched Russell Academy and filed an affidavit with the state as a private school provider.
Russell says the district has violated the agreement in other ways, too: It demanded she produce home-school records and financial documents outside the scope of the settlement, though it backed off after her attorney refused. And it reimbursed her inconsistently, paying her to cover some expenses while denying other similar reimbursements.
Seeking help in getting paid back, Russell has filed several complaints with the California Department of Education, alleging the district is harassing and retaliating against her.
But the state has been slow to wrap up its investigations, taking months to weigh in on her dispute with the district. And when the state does weigh in, the response has been similarly confounding, Russell says.
For example, when the district said it wouldn’t pay for tutoring after questioning the tutor’s credentials, the CDE found the district had violated the agreement. The agreement doesn’t give the district the authority to deny reimbursements “based on the qualifications of the privately obtained education provider,” the CDE found.
In another instance, the CDE supported the district’s decision to deny Russell reimbursements for supplies. The reason was “they were not requested by a privately obtained educational provider,” even though Russell’s homeschool is registered with the state.
Matthew Storey, a San Diego-based special education attorney with more than a decade of experience with these types of settlements, said the district’s inconsistencies in granting and then denying reimbursements are odd, given the categories of spending are spelled out in the agreement.
However, Storey added, it seems as though the district and Russell went into the agreement with different understandings about who would provide services, and the agreement “leaves it to interpretation.”
inewsource emailed the district in early January asking more than a dozen questions about the agreement and followed up in the weeks after. This month, the district told inewsource that it “is unable to comment about the terms of legally binding settlement agreements.”
“The contents and terms of settlement agreements are confidential,” said Maureen Magee, San Diego Unified’s communications director.
The CDE also declined to comment on the investigations in Russell’s case.
New law excludes students, spurs lawsuit
Russell says the battle to educate her son has been a long, exhausting one that began during the 2020-21 school year, when the pandemic prompted a temporary law change that allowed students to attend school virtually. But in July 2021 after that law sunset, Gov. Gavin Newsom signed into law Assembly Bill 130, which made independent study an option for children whose health would be put at risk by in-person instruction.
However, the new law also excluded children with individualized education plans, commonly called IEPs, from participating in independent study unless their IEPs specifically called for it.
Ethan was among 15 students who were plaintiffs in the federal lawsuit against the state, alleging they were discriminated against because they were being denied accommodations available to students without disabilities.
At the time, the students’ attorneys said they were among about 200 students with disabilities across California who were unable to return to in-person learning because of the risk of COVID-19 exposure, according to court records.
Those records also say that many of the children missed “significant portions, if not all” of the 2020-21 school year. These families also faced multiple barriers to accessing distance learning, including denial of independent study, a lack of services and accommodations previously included in their distance learning plans, and long delays in convening for required IEP team meetings.
The court ruled that the state must allow children with disabilities, whose health may be at risk by in-person learning, to participate in remote learning either by “reasonable modifications or through independent study.”
But Russell had already entered into negotiations with San Diego Unified at the urging of her attorney, she said. In February 2022, San Diego Unified agreed to fund “privately-obtained educational services” for Ethan, including “academic instruction, audiological services” and various types of therapy. The services also “may include the technologies, including a personal computer and/or tablet … communication devices … sensory tools and manipulatives, books and other materials needed for Student to participate in such services.”
According to the settlement agreement, the district agreed to provide funding through Ethan’s senior year of high school in exchange for him enrolling in an educational program “not operated by or affiliated in any manner with the District.” The district agreed to reimburse the family monthly.
After San Diego Unified and the Russell family signed the settlement agreement, Russell launched the Russell Academy to teach Ethan from home, something she says she discussed with her attorney during settlement talks.
Now Russell says San Diego Unified has refused to reimburse her for about $9,000 in educational expenses she requested between February and July of last year. She says she’s spent much more on her son’s education – to the tune of $30,000 – but stopped filing requests for reimbursements in August because she grew tired of filing receipts and reconsideration appeals only to find out months later that she wouldn’t be reimbursed.
San Diego Unified has reimbursed her for less than half of what she’s requested, she said.
Provider credentials an issue
Russell says the district’s approach to granting and denying reimbursements has been confusing from the start.
In a review of her correspondence with the district, inewsource found that San Diego Unified has inconsistently denied reimbursement requests, granting most of them at first and then switching course to deny most of them – even on items or services the district had previously approved.
For example, in February and March, the district reimbursed the family for some educational supplies, but denied a reimbursement for similar expenses in June purchased at the same educational supply store.
Russell says the district also reimbursed the family for a laptop in March but in July refused to reimburse them for an iPad and accessories.
In April, Russell says the district told her for the first time that it would be unable to reimburse her for providing instruction “based on the requirement that the funding is for privately-obtained educational services.”
“Parent providing services to their child does not meet this criteria,” the district said in the email.
Then in June, the district denied most of another reimbursement request for educational supplies, books and tutoring, saying, “We have no information that the items purchased are needed for Ethan to participate or have been requested by any ‘privately obtained educational provider.’ ”
Russell says she doesn’t understand why San Diego Unified won’t recognize her as an allowable provider under the agreement, which says that she and her family – not the district – are “solely responsible for obtaining the services, including selecting the provider.” The district also won’t weigh in on the “appropriateness” of the provider, according to the agreement.
In order to home-school a child, a parent just needs to file a private school affidavit with the state and maintain attendance and other records, said Jamie Heston, a home-school consultant and volunteer for the HomeSchool Association of California. Parents aren’t required to obtain a teaching credential to teach their child in California, she added.
Leonard Jones, with the CDE’s education data management division, confirmed Russell Academy is on file as a private school and said parents who teach their children with special needs at home do not need special education training or a credential.
Russell said she’s more than capable of teaching her son. She’s a licensed therapist, and former behavioral specialist and substitute teacher with a master’s in counseling psychology, but had to put her career aside when Ethan was born because of his needs, she said.
The district has encouraged Russell to hire outside providers and let the district pay them directly, but Russell said she doesn’t want that. She says she fears providers may not get paid if she agrees.
And the agreement gave Russell two options: let the district pay providers directly or let the family hire providers and get reimbursed by the district. Russell chose to be reimbursed.
Few answers, remedies
Russell says her attempts to get help resolving her claims have been disappointing.
She’s waited months to hear from the CDE about her complaints. The family is still waiting for the district to reimburse her for tutoring expenses from June that the CDE ordered the district to pay. The district has said it will pay by mid-March.
And she’s beyond exhausted, she says. In addition to asking the district and the state for help, she’s reached out to a San Diego state assembly member and a former attorney on the case, and she’s publicly testified before the district’s Board of Education.
inewsource also reached out to Russell’s former attorney, who helped her secure the settlement agreement, to get clarification on its provisions, but his office said it “cannot comment on this specific matter.”
While San Diego Unified didn’t answer inewsource’s direct questions about the case, Magee, the district’s spokesperson, said the district stands by the agreements it enters.
“San Diego Unified is committed to honoring the terms of all settlement agreements that it enters into with families, and honors its commitment to ensure that resources are used for their intended purpose of educating students,” she said.
As expenses pile up, Russell says she worries about being able to afford Ethan’s education in the future.
“We’re just asking for what he should be getting,” she said. “People in education, people in special education, they should know better.”
Type of Content
News: Based on facts, either observed and verified directly by the reporter, or reported and verified from knowledgeable sources.