Sunday, March 24, 2013

Fox C-6 and MO DESE Undergo USDA Compliance Review

Does Our School Board Know About The USDA Compliance Review?
The week of March 25, 2013 the USDA Office of Civil Rights (USDA OCR) will be visiting the Fox C-6 School District and the state of Missouri's Department of Secondary and Elementary Education (MO DESE) to conduct an onsite Compliance Review. USDA OCR will be covering their Guidelines and Regulations in which the school district and MO DESE were found to be Non-Compliant in their August 2011 Final Agency Decision (FAD). The Compliance Review is being conducted at both the district and state level. Their review will be focusing on the Assurance Agreement that the State and School District sign in order to receive their federal funds. The Assurance Agreement covers the USDA's Federal Regulations and Guidance, and more in depth Section 504 Law, the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendment Act (ADA AA). This Compliance Review stems from an April 2009 complaint filed with the USDA. The USDA performed a preliminary onsite visit in September 2009 to the state and then a November 2009 visit to our school district, and issued a preliminary report to the Washington D.C. office in March of 2010. The March 2010 report stated that our school district did not understand their responsibilities in following the USDA Guidelines and Regulations and the laws contained therein.

Fox and MO DESE Found To Be Non-Compliant
How did Fox being found to be Non-Compliant by the USDA cause the state of Missouri to be Non-Compliant? According to the USDA's Final Agency Decision, the Fox C-6 School District signs an assurance agreement each year with MO DESE. Each year MO DESE signs an assurance agreement with the USDA stating that it will ensure that our state's school districts will abide by the Guidelines, Regulations and laws that the USDA is charged with enforcing when participating in the USDA's National School Lunch program. Since MO DESE is responsible for ensuring that school districts in the state follow the USDA's Guidelines and Regulations, and the laws it covers, and Fox was found to be Non-Compliant, the entire state of Missouri was found to be Non-Compliant.

U.S. Department of Justice Gets Involved
In order for all of this to occur, the USDA had to work with the United States Department of Justice (DOJ) in order to pursue enforcement action against our school and our state. The USDA has a Case Processing Manual that is a step by step guide that they must follow before they can come into the state and then to the district to enforce the law. But, once the USDA found the state to be non-compliant, it has the ability to withhold federal reimbursement for the entire state of Missouri's National School Lunch program. This covers Free and Reduced lunches as well as the standard reimbursement for a regular pay school lunch. Based upon the number of lunches reported by Missouri DESE and the USDA's reimbursement formula, this would amount to over $1,000,000 dollars per day that the USDA could withhold from the state of Missouri due to the Fox C-6 School District not complying with the USDA's Guidelines and Regulations and not following Section 504 Law, the ADA and ADAAA.  The USDA prefers voluntary compliance as opposed to withholding federal funds.

Rest assured, our school district didn't like the decision that the USDA handed down. The school district attorneys spent a good amount of time in filing an appeal as well as conducting conference calls with the USDA. Our school district attorneys even made Freedom of Information Act requesting any and all correspondence between us and the USDA. Everything I sent to the USDA was statement of fact and documentation from meetings and or documents that I found online at MO DESE, school attorney presentations and emails from the district and attorneys. This is when our school district learned that I had supplied the USDA with an audio recording of our December 7, 2009 Section 504 meeting and a transcript of that meeting. Why did I record the meeting? Because I had learned in an August 2008 Section 504 meeting that statements made and documented in our meetings with the school and documented by school weren't accurate or misrepresented the facts. Since it was our word against theirs, I needed proof as to what was said and occurred during those meetings.

District Attorneys Lying To Federal Attorneys?
For example, following a May 2009 504 meeting, the school district attorney at the time made false statements to the Kansas City US Department of Education Office of Civil Rights (ED OCR) attorney about statements I informed ED OCR he had made during the meeting.  During that meeting, the district attorney stated that "episodic and in remission only applied to people with cancer" in reference to the new ADAAA. I told the district attorney during the meeting that this is not what the new law said. He told me that yes it was because he had "just read it in the congressional findings the day before". He then told me that we weren't here to debate the new law. I told ED OCR that he was trying to teach the team that the new law didn't apply to our case, which was not true.

In discussing my concerns with the ED OCR attorney about what the district attorney said during the meeting, she told me that she was sure that he wouldn't have said that. She said she would call him and ask him if he said that. She called him and emailed me back. In her email, she informed me that the district attorney told her that he never said that. I said thanks for checking and then I emailed her a copy of my audio recording of the meeting as proof that he did in fact make those statements during the meeting!

The Federal Law On Lying
Why would a school district attorney be willing to lie to a federal attorney when there are laws that carry big penalties for doing so? Could it be that he thought he wouldn't get caught because what happens behind closed doors in 504 meetings stays behind closed doors? You know there is a problem with how your district is handling things when district attorneys lie to ED OCR federal attorneys and the ED OCR attorneys brush it off. The law that I am referring to is United States Code (USC) 18 Section 1001. It is known as the Federal Law on Lying. It's the same law that was used to put Martha Stewart in jail. It should be noted that a person does not have to be under oath when making false statements in order for it to be a crime. The person doesn't even have to make the false statement directly to the federal employee or agent. For instance, let's say that a school district official makes false statements or falsifies documentation to MO DESE during an investigation. Now, let's say that the results of that MO DESE investigation are then turned over to a federal agency such as ED OCR. Those false statements or falsified documentation would violate this law. Under this statute, it is a crime to knowingly and willfully make any materially false statement concerning any matter that is within the jurisdiction of the United States. The Department of Education and the US Department of Agriculture fall under this jurisdiction. The penalties for violating this law are up to 5 years in prison and up to a $250,000 fine per count and the statute of limitations under this law is 5 years.

Here is a great article covering USC 18 Section 1001:

So, it appears that this is how things have been done for years by our school district. If it weren't for my audio recordings it would have been my word against the school's word. Since there is no school board policy at Fox C-6 that prohibited the audio recording of 504 meetings at that time and there still isn't. I started recording our 504 meetings. There is a policy that prevents someone from recording IEP meetings unless you request permission prior to the meeting to do so. NOTE: The new school board policies that our school board has been reviewing since March of 2012 and are still working to adopt includes a new policy that will prohibit audio recording 504 meetings just like IEP meetings. I wonder what prompted our school district to add this to their policies?  

After all of the false statements I had heard during our 504 meetings, I began recording the meetings as a way of documenting what was going on so I could review them later and make notes as to what they were trying to pull. I was not as knowledgeable in Section 504 law back then. For parents that don't do this on a daily or regular basis, the district can easily walk all over you. They will tell you things that aren't true hoping that you don't catch them in their lies so they don't have to do things that they are required to do but may not want to do. It still begs the question as to why attorneys were brought into this entire process in the first place. But, I am guess that it was because we got up to speed on the laws very quickly and were able to go toe to toe with their attorneys so well that they had to resort to misrepresenting the facts.

School Districts Get To Choose Due Process Hearing Officers
I am guessing that our school district attorneys kept assuring our superintendent that they would win this case. They were able to pull off a win in a Due Process Hearing when the school district hired a former law associate of the school district attorney to act as a Due Process Hearing Officer. We handled our side of the case pro se. Every attorney we spoke with told us we would be wasting our money if we hired an attorney because the school district had already rendered their decision. The Due Process Hearing was simply a formality. According to our school district's Procedural Safeguards, the school district gets to choose the Due Process Hearing Officer. It just happened that the district chose an attorney that used to work closely for years with the district attorney representing school districts in other law firms. In fact the two of them even spoke at a 2007 Missouri Speech and Hearing Conference on "How To Testify In Due Process Hearings". So, you can probably see that chances are pretty slim that any due process hearing with the school district will be "fair and impartial". In fact, within a few seconds of getting the name from the school district as to who the Due Process Hearing Officer would be, I was able to find his name on several court cases with the district attorney representing school districts against parents when they worked together in other law firms.

When we talked about backing out of Due Process (we had no chance of getting a fair hearing), the school district informed us that they would exercise their right to file a Due Process Hearing against us because they wanted to get this decision finalized once and for all. Once the district attorney got the decision she wanted, she put it into her presentations that she made across the state. The USDA reviewed the school district's Due Process Hearing decision and gave it very little credibility. So, even though the district attorney was able to get the decision she wanted, the USDA found that the hearing officer did not properly apply the law and that is why they are stepping in. ED OCR didn't step in at all. I will go into my theories as to why in another article. It has something to do with the fact that the lead attorney for ED OCR in the Kansas City OCR office is a former Missouri School District attorney. We have a long list of excuses as to why ED OCR can't seem to enforce the law after nearly 5 years of handling our case.

Our Superintendent Did Inform the School Board
The district filed an appeal to the USDA Final Agency Decision which Mr. Dan Baker was so proud to tell me about after the December 2011 school board meeting when I asked him if the administration had ever informed the school board about the ruling. I told Mr. Baker and Dianne (Brown at the time) that the board members I had spoken to didn't know anything about the USDA ruling. Dianne informed me that she had sent an email to the board. She sent me a copy of the email that she sent the board dated August 24, 2011 the next day as proof that she informed them. She sent it to me on December 14, 2011. This is how she described the USDA Final Agency Decision to the school board in her email:

Good morning, 
I received this 12 page document from our attorney regarding the Simspon case. I am sending it to you and will provide a copy in your backup materials in case you can't open the document. In summation, it is a long letter from USDA and their OCR. Terry (attorney) has noticed many inaccuracies in the document. 
However, I am just reminding everyone that since this is pending litigation. We cannot talk to the Simspons about the case. Per our attorney, please ask them if you are notified to contact myself or the district's attorney. 
Thank you!
Did the School Board Read the "long letter" From the USDA?
I know that Ruth Ann Newman wasn't aware of the "long letter". Dan Smith didn't recall seeing the "long letter" when I asked him if he had after the December 2011 school board meeting. He also wasn't aware of it when another friend of mine had asked him about it prior to the board meeting. However, he did recall seeing it when Dianne Critchlow walked up and told him that he had. It was quite humorous to see Dan's recall improve when he was told that he had seen it because Dianne had emailed it to everyone on the board. The question is, did anyone read it? I'm guessing that they didn't.

Since Dianne reminded him that he had seen it and that I was wrong to assume that the board members were unaware of the letter since I had asked them and they didn't know anything about, she pointed out in her email to me in her normal arrogant attitude that, "Your statement last evening that the Board of Education was not informed is false and inaccurate." Thank you Dianne for correcting me! My mistake. She had informed the school board in an email about the USDA ruling. Our superintendent didn't seem too concerned with the fact that our school district and the entire state of Missouri had been found Non-Compliant by the USDA at the time. She also had trouble spelling my last name in her email. At least she was consistent. I guess that's OK because the USDA had trouble spelling the school name in their document which was one of the inaccuracies that the district attorney noticed. It is very important note that the school district was eventually informed that there was no appeal because it was a Final Agency Decision. That's why they are now conducting a Compliance Review of our district and MO DESE.

Fox's new Food Nutrition Services Director (school board president Linda Nash's daughter-in-law) is going to get thrown into the frying pan or get grilled this week when she gets to meet with the USDA and the Office of Assistant Secretary for Civil Rights (OASCR). Wow! All of this effort because our school district didn't want to fill out some paperwork like other school district do. Also, I guess our superintendent didn't like getting caught doing something wrong. That's why the district pays the attorneys to make things "look" proper. Well, that's at least what they want you to think. It will be interesting to see what the outcome of this Compliance Review brings given the fact that the US Department of Justice (DOJ) is now involved and given the fact that attorneys from the DOJ recently contacted us.