Jenks Public Schools Uses Toxic Exposure Settlement to Deny Rights Under IDEA

            What began like any other day at a public high school turned one Oklahoma family’s lives into a six and a half year nightmare and a protracted legal battle. In May of 2004, an emergency phone call was placed to the home of Dr. Harold Voss and Kimberly Voss that their special needs daughter Ashley was acting erratically. Someone should come to school immediately. Kim urgently left their home and was there within minutes. Ashley exited the building in her power chair with her paraprofessional alongside, but something was clearly wrong. After Kim took over the controls of her power chair, guided Ashley to the van, and battled to get her inside, the paraprofessional suggested Kim step inside the high school. The doors opened to the 100,000+ square foot building where Ashley’s special education classes were located. Kim gasped. The school was a construction zone! Why had she not been told?

            Kim paged Harold in surgery on the drive home and described Ashley’s condition. They decided to watch Ashley at home for a few hours before potentially taking her to the hospital. Born with Down syndrome, Ashley had had two previous open heart surgeries, the last one at Mayo Clinic, as well as a major hip surgery, also at Mayo, just a few years earlier. Unfortunately, Ashley had had a stroke at age two and a half following her first open heart surgery that also left her nonverbal and visually impaired.

            In the meantime, there was another problem: their nondisabled daughter Megan was still in the building. Just days from graduation, family was beginning to arrive from around the country for her celebration. To pull Megan out of school now could jeopardize her graduation. Instead, Kim called the Tulsa County Health Department. While they made a visit to the school and expressed concerns about the conditions, they indicated they had no jurisdiction but believed they had convinced the school to cease construction.

            Following a visit to her pediatrician, Ashley developed a brilliant red rash on her face the night before the graduation ceremony. Both girls had coughs and now Ashley was requiring multiple breathing treatments a day. In what would be code to most of those in the audience, the valedictorian made reference to the toxic exposure during the ceremony when addressing his fellow graduates: “We were coughing so hard we were spitting up floor tiles.”

            Kim and Harold returned to school the day after graduation to retrieve Ashley’s belongings. It was the first opportunity they had had to see the magnitude of the conditions inside the building. The carpet was gone and bare concrete was exposed. The lockers were removed. And all over there was a fine particulate.  While both were clearing their throats within minutes, Dr. Voss expressed health concerns for two of Ashley’s teachers. The teachers indicated the conditions were much worse a few hours earlier when equipment was running inside the building and “putting out black smoke.”

            School was still in session and Megan had to return after graduation to take a final exam. She called home to say the conditions had worsened. Kim immediately contacted a number of other agencies including the Oklahoma Department of Labor, Department of Education, Department of Health, and Department of Environmental Quality, the federal Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), National Institute for Occupational Safety and Health (NIOSH), Pediatric Environmental Health Safety Unit (PEHSU), and the Tulsa County Health Department for the second time. A senior scientist at NIOSH called Ashley “the canary in the coalmine.” And the PEHSU toxicologist indicated the girls could have lung cancer in 20 years. But no one had jurisdiction to do anything, and others chose not to get involved.

            Ironically, Kim learned from the Environmental Protection Agency that the school district had been participating in their Indoor Air Quality (IAQ) Tools for Schools program “to reduce exposures to indoor environmental contaminants in schools through the voluntary adoption of sound indoor air quality management practices.”  The University of Tulsa professor overseeing the grant would not return Kim’s calls, and his assistant quickly quit taking them. Kim later learned the professor extended the grant to the federal government for another year “at no charge.”

            As Ashley’s condition worsened and Megan’s cough persisted, Kim was desperate for information. She requested MSDS sheets from the construction company and wrote letters to the public school trying to determine the nature of the exposure. By piecing information together, Kim was able to determine that the concrete had been sandblasted, gasoline powered equipment had been run inside the building, and an epoxy matrix terrazzo had been installed and polished while school was in session.

            A few months later, Megan left for college with a chronic cough. Ashley, still very sick and seeing multiple specialists, never returned to school. Her pediatrician feared “they could kill her.” Within a year, a settlement agreement was reached with the public school on Ashley’s behalf, and suits were filed against the construction companies, and the school on Megan’s behalf. But after signing the settlement agreement for Ashley with the public school, they would not continue her homebound special education services in accordance with her individualized education plan. Having already observed many violations of her IEP during homebound services the previous school year, this was the last straw. Dr. and Mrs. Voss filed a state complaint with the Oklahoma State Department of Education under federal law Individuals with Disabilities Education Act (IDEA), and included a 3-inch binder of evidence.

            Although the language in the settlement agreement clearly stated that it was “due to the toxic exposure,” the Oklahoma State Department of Education refused to investigate since “Jenks School district will not respond to issues raised by you that allegedly occurred prior to June 3, 2005,” the date of the settlement agreement. Furthermore, the OSDE ruled “that any determination as to whether or not the issues raised in this complaint…are a part of the settlement agreement should be made by the court of record who [sic] issued the settlement agreement.”

            On November 22, 2005, President George W. Bush and Commerce Secretary Carlos Guiterrez announced Jenks Public Schools as a recipient of the Malcolm Baldrige National Quality Award, “the nation’s highest recognition for organizational performance excellence,”  established by Congress in 1987. Jenks Public Schools’ application in May 2005, states that “no injuries due to hazardous waste and chemical mismanagement have occurred as a result of school/work procedures in place for the past seven years.”

            Dr. and Mrs. Voss were now forced back to court. The district court judge who had overseen the settlement agreement and "friendly" suit agreed with the Vosses, but the public school continued spending taxpayer dollars appealing all the way to the Oklahoma Supreme Court, while the OSDE continued to refuse to investigate. The Oklahoma Court of Civil Appeals also agreed with the Vosses and the Oklahoma Supreme Court denied both the appeal of the school district and their petition for certiorari.

            Now over 4 1/2 years since the toxic exposure, over 3 years since the formal complaint had been filed, and long after the school district’s exit of Ashley over the opposition of Dr. and Mrs. Voss and with a pending complaint, the OSDE inquired as to whether the Vosses still wanted the state complaint investigated. The response was “absolutely!” But when the findings were finally released in December 2008, there was an odd document included and referenced in the OSDE’s decision. The Vosses had submitted the same document to the OSDE on two separate occasions. But now the date had been changed to reflect a one-year statute of limitations. And, while the content was also now different, it did not relate to the homebound school year following the toxic exposure but, rather, the school year during which the toxic exposure occurred. Under IDEA, the Vosses immediately submitted a request for Ashley’s educational records from the public school. Neither the original document nor the altered document was present.            

            Through their attorney, the Vosses requested a review of the OSDE decision. The Voss’s attorney referred to this document as “a fraud.” The OSDE refused to change their decision and indicated they would not accept “new evidence,” all the while corresponding and accepting information from the school district. But, whether the OSDE considered it “new” or “old” evidence, it was “old evidence” that was “newly” determined to be false. The OSDE would hear none of it and, within a few months, unexpectedly closed the investigation.

            Dr. and Mrs. Voss contacted the FBI. Mail fraud was suggested if the intent to submit the altered document was to deceive. The Vosses were referred to the United States Department of Education Office of Inspector General. While told they would receive a follow-up phone call from the IG, they later learned that the file was immediately closed without reviewing any evidence and without further contact with the Vosses. Subsequently, Dr. and Mrs. Voss filed a complaint against the regional office of the IG in October 2009 but have since heard nothing.

            The office for the Family Educational Rights and Privacy Act (FERPA), “a Federal law that protects the privacy of student education records,” was also contacted but indicated there are “no criminal procedures under FERPA.”

            In August 2009, Dr. and Mrs. Voss filed a complaint against the Oklahoma State Department of Education with the United States Department of Education Office for Civil Rights that was subsequently forwarded to the United States Department of Education Office of Special Education Programs for investigation of IDEA violations. Just days shy of the one year anniversary of filing the complaint, the Vosses received a one page letter from the USDOE with an included short letter from the Oklahoma State Department of Education. The OSDE indicated they “did not intend to cause an undue delay or burden to the parent” and the USDOE suggested that the OSDE had “erred” and hoped their letters would provide Dr. and Mrs. Voss “satisfaction.” The Vosses immediately sent a follow-up letter to the USDOE stating their “investigation” was far from complete and provided no corrective measures, sanctions, or retribution for the actions of the OSDE. There has been no response to date.

            The Vosses await responses to letters written to President Obama, Secretary Duncan, Senator Harkin, and others following personal meetings with both Oklahoma Governor Brad Henry and Senator Tom Coburn.  And they also continue to await the results of a FOIA filed with the United States Department of Education Office for Special Education Programs and a FOIA filed with Jenks Public Schools for an accounting of the court costs and legal fees in fighting their losing battle. A FOIA filed with the Oklahoma State Department of Education has only recently been completed.

            The loose thread began at a local school district with too much money and too much power, to a state government with too little oversight, to federal agencies with a “make me” attitude regarding the enforcement of federal law. Pull the thread and it all unravels. The collective existence of all these agencies lulls the public into a sense of complacency and safety, yet the system is incapable of protecting a single child and capable of bringing a family to its knees. Is this how we value the lives of our citizens? What a horrible, pathetic waste.

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How It All Began: A Toxic Exposure

To listen to a teleconference Kim Voss participated in, along with Claire Barnett of the Healthy Schools Network (October 9, 2007), called Protecting Children's Health in School Settings, click here for the audio archive. To download the PowerPoint, click here. [This presentation was part of the Environmental Health Initiative of the American Association on Intellectual and Developmental Disabilities funded by the John Merck Foundation.]

To download a copy of Who's In Charge of Protecting Children's Health at School?: A Report on "America's Largest Unaddressed Children's Health Crisis" produced by the Healthy Schools Network (April 24, 2006), click here.

To read a recent article (September 30, 2010) in Newsweek on Heavy Metal High School by J. Lester Feder, click here. "As evidence mounts of health hazards at many U.S. schools, parents are increasingly frustrated by the difficulty in keeping their kids' learning environments safe."

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Press Release
Coming soon.

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Timeline
Coming soon.

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News

• Jenks schools pays claim to settle lawsuit, 6/30/2005, Tulsa World
• Oklahoma Court of Civil Appeals, Friday, June 27, 2008, The Oklahoma Bar Journal
• Oklahoma Court of Civil Appeals, Orders Denying Rehearing (Division No.1), Friday, July 25, 2008, The Oklahoma Bar Journal
• Oklahoma Supreme Court Case No. SD-105,746, Appeal from Tulsa County Case No. CJ-2007-2729
• Oklahoma Supreme Court, Defendants'/Appellant's Petition for Certiorari
• As of October 22, 2008
• As of December 1, 2008
• April 2009: Jenks Public Schools Special Education Department to Be Audited by the U.S. Department of Education Office for Civil Rights

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Evidence

Supreme Court Justice Louis Brandeis once said, "Sunlight is said to be the best of disinfectants," referring to the benefit of openness and transparency. Evidence highlighting the actions of Jenks Public Schools, the Oklahoma State Department of Education, and the United States Department of Education will be uploaded. Check back. This will take some time. It's a compelling read.

Section 504 of the Rehabilitation Act of 1973 and Jenks Public Schools

•February 19, 1993 Entire Letter of Findings Office for Civil Rights Reference 06911203 Jenks Public Schools

Jenks Public Schools Accessibility

•February 19, 1993 Excerpt from the Letter of Findings Office for Civil Rights Reference 06911203 Jenks Public Schools
•May 2005 Jenks Public Schools Application for the Malcolm Baldrige National Quality Award Related to ADA
•March 9-11, 2010 Office for Civil Rights Docket #07101023 Jenks Public Schools Accessibility Review

Jenks Public Schools Toxic Exposure

•April 2, 2003 Correspondence from Jenks Public Schools to the EPA
•June 3, 2005 Settlement Agreement NOTE: This document is not yet highlighted but is relatively short and easy to read. Highlighted version to come.
•June 28, 2005 Transcript of Friendly Suit
•May 2005 Jenks Public Schools Application for the Malcolm Baldrige National Quality Award Related to Toxins
•2010 Baldrige Award Application Forms

State Complaint Under IDEA

OSDE Agrees/Recants/Agrees to Investigate State Complaint Under IDEA

•Agrees #1: October 6, 2005 Correspondence from the Oklahoma State Department of Education Agreeing to Investigate State Complaint Under IDEA

•October 12, 2005 Correspondence from Rosenstein, Fist & Ringold to the Oklahoma State Department of Education

•Recants: October 18, 2005 Correspondence from the Oklahoma State Department of Education Recanting the Investigate State Complaint Under IDEA
•Letter to the OSDE: October 28, 1005 Correspondence Along With a Full Copy of the Settlement Agreement
•Agrees #2: November 4, 2005 Correspondence from the Oklahoma State Department of Education Agreeing to Investigate State Complaint Under IDEA

OSDE Refuses to Investigate State Complaint Under IDEA

•Refusal #1: November 17, 2005 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
•Refusal #2: February 20, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
•Refusal #3: March 12, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
•Refusal # : April 11, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
Coming soon.
•Refusal # : April 29, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
Coming soon.
•Refusal #4: July 24, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA

OSDE Agrees/Recants to Investigate State Complaint Under IDEA

•Agrees # : August 11, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
Coming soon.
•Recants #2: August 25, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA

Decision of the Oklahoma Civil Court of Appeals and Affirmation by the Oklahoma Supreme Court

•Oklahoma Civil Court of Appeals Opinion (June 27, 2008) and Affirmation by the Oklahoma Supreme Court (October 30, 2008)

Fallout After OSDE Finally Investigated the Complaint

•February 12, 2009 Correspondence from the Oklahoma State Department of Education Related to Review and Reconsideration
•November 18, 2009 Correspondence from the United States Department of Education Office for Civil Rights
•May 5, 2009 Correspondence from the Oklahoma State Department of Education Abruptly Closing the Investigation

Evidence of False Document

Involvement of the United States Department of Education and Their Office for Civil Rights

•July 28, 2010 Correspondence from the United States Department of Education Office of Special Education and Rehabilitative Services
•August 2, 2010 Correspondence to the United States Department of Education Office of Special Education Programs

FOIAs

•August 2, 2010 First Freedom of Information Act (FOIA) Request of the Oklahoma Department of Education
•September 17, 2010 Second Freedom of Information Act (FOIA) Request of the Oklahoma Department of Education
•October 5, 2010 Freedom of Information Act (FOIA) Request of Jenks Public Schools

Evidence Derived From FOIAs
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Coming soon.

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News

Jenks schools pays claim to settle lawsuit, 6/30/2005
Tulsa World
JENKS -- Jenks Public Schools recently agreed to pay $50,000 to settle claims made by the parents of a Jenks High School student that chemicals and residue used in building renovations caused her to suffer respiratory problems.

In a lawsuit filed on June 6 on behalf of their daughter, Ashley Voss, who has Down syndrome, Harold M. and Kimberly Voss claim that Ashley sustained personal injuries from April 2004 renovations to the high school building.

The plaintiff's attorney, Derek Ingle, said Ashley's parents agreed to a friendly lawsuit, which is necessary for the court to accept the settlement in the case of a person who is considered incapacitated.

"We feel the offer of $50,000 was a reasonable settlement for this time," Ingle said on Wednesday.

Bo Rainey, an attorney who worked on the settlement agreement for Jenks, said that the negotiations were made through the district's insurance company, which is National American Insurance Co. Inc. based in Chandler. "The insurance carrier negotiated the settlement and made the payment," Rainey said.

According to court records, the settlement states that it would "fully compromise and conclude any claims" that Ashley or her parents might have against the district, even if her purported physical condition changes or worsens or new injuries develop or are discovered after the settlement.

Both parties agreed to pay their own attorneys' fees and court costs.

For a link to the Tulsa World article, click here.

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Oklahoma Court of Civil Appeals, Friday, June 27, 2008
The Oklahoma Bar Journal
Harold and Kimberly Voss, individually and as parents and next friends for Ashley Voss, Plaintiff/Appellees, vs. Jenks Public Schools a/k/a Ind. School District No. 5 of Tulsa County, Defendant/Appellant, and State of Oklahoma, State Department of Education, Defendants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable P. Thomas Thornbrugh, Trial Judge. Appellant (School) appeals from the order granting summary judgment to Appellees, (Parents). The court found Parents' claim that School violated the terms of their daughter's (Child) Individualized Education Plan (IEP), was not precluded by an earlier settlement agreement between the parties. Child was a special needs student. Parents alleged School had negligently allowed Child to be exposed to dangerous particulants and pollutants during a renovation project, causing her injury. The parties settled; Parents executed a Release; and the settlement was approved by the court. Parents later filed an administrative complaint with the Department of Education alleging School violated several Federal Acts by failing to comply with the terms of Child's IEP. Department, in a letter dated October 18, 2005, apprised Parents it had been advised by School's counsel that because of the Release, "[a]ny claims asserted against the Jenks School District arising before June 3, 2005 have been released by the Parents." Parents asked the court to find the Release did not release School "from liability regarding...claims for special services." School contends the court erred by finding the language of the Release was ambigious, finding the Release should be construed against it, and modifying the scope of the Release. It is clear the events that gave rise to the Release relate only to Child's exposure to pollutants. If School was contemplating Parents' waiver of any and all claims from controversies other than "the incident in April 2004," it was incumbent on School, as the drafter of the Release, to ensure there were no ambiguities in the document. They failed to do so. The trial court's judgment granting summary judgment to Parents is AFFIRMED. Opinion by Hansen, J; Adams, P.J., and Joplin, J., concur.

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Oklahoma Court of Civil Appeals, Orders Denying Rehearing (Division No. 1), Friday, July 25, 2008
The Oklahoma Bar Journal
Harold and Kimberly Voss, individually and as parents and next friends for Ashley Voss, Plaintiff/Appellees, v. Jenks Public Schools a/k/a Ind. School District No. 5 of Tulsa County, Defendant/Appellant, and, State of Oklahoma, Department of Education, Defendants. Defendant/Appellant's Petition for Rehearing filed July 16, 2008 is DENIED.

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Oklahoma Supreme Court Case No. 105,746, Appeal from Tulsa County Case No. CJ-2007-2729
DENIED

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Oklahoma Supreme Court, Defendants'/Appellant's Petition for Certiorari
DENIED

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As of October 22, 2008
We have prevailed in every court and continue to await the investigation of our complaint filed in October 2005 by the Oklahoma State Department of Education regarding violations of applicable state and federal laws.

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As of December 1, 2008
Apparently the attorneys for Jenks Public Schools have decided not to appeal to the U.S. Supreme Court. After 3 years and 57 days, the Oklahoma State Department of Education is finally investigating our complaint. "Justice delayed is justice denied?" Stay tuned.

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April 2009: Jenks Public Schools Special Education Department to Be Audited by the U.S. Department of Education Office for Civil Rights

Audit Decried as Retribution
For link to the Tulsa World article, click here.

October 5, 2010: Jenks, Broken Arrow Districts Challenge Special Education Funding Law
For link to Tulsa World article, click here.

For a link to the blog of Oklahoma Representative Jason Nelson, click here.

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Evidence

Section 504 of the Rehabilitation Act of 1973 and Jenks Public Schools

February 19, 1993 Letter of Findings
Office for Civil Rights Reference 06911203 Jenks Public Schools
In 1991, the United States Department of Education Office for Civil Rights conducted a class action investigation related to districtwide violations of Section 504 of the Rehabilitation Act of 1973. To download the entire Letter of Findings, click here.

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Accessibility

February 19, 1993 Letter of Findings
Office for Civil Rights Reference 06911203 Jenks Public Schools
In 1991, the United States Department of Education Office for Civil Rights conducted a class action investigation related to districtwide violations of Section 504 of the Rehabilitation Act of 1973. In part, it states that "based on updated information obtained after the on-site investigation, the JPS provided evidence to OCR that playground equipment had been purchased and installed at the Betsy Mayo building. Additionally, accommodations were made to the playground equipment on other JPS elementary campuses to accommodate the needs of handicapped students. Therefore, the JPS is now in compliance with Section 504 as it regards playground equipment." There is no evidence that OCR ever returned to see, firsthand, whether this work was performed. To download the page related to accessibility of JPS playground equipment, click here.

May 2005 Jenks Public Schools Application for the Malcolm Baldrige National Quality Award
Two pages have been extracted from Jenks Public Schools' application for the Malcolm Baldrige National Quality Award that refer to "enforcing federal laws related to...Americans with Disabilities Act (ADA)." Please refer to the lengthy March 9-11, 2010 Accessibility Review Chart of Compliance related to building, playground, and parking lot accessibility on 5 campuses, including all JPS elementary campuses. To download, click here.

March 9-11, 2010 Accessibility Review Chart of Compliance
Office for Civil Rights Docket #07101023 Jenks Public Schools
The staff of the United States Department of Education Office for Civil Rights conducted an on site accessibility review of the District's playground areas and equipment and parking lots at its elementary and intermediate schools. Because the District has chosen the American with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) as its new construction and alteration standard, OCR also used ADAAG to determine the accessibility of existing facilities during its onsite investigation. To download the 68 pages of the Compliance Concern Chart that shows the extensive list of violations,
click here.

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Toxic Exposure

April 2, 2003 Correspondence from Jenks Public Schools to the EPA
The letter remarks that "Jenks Public Schools is looking foward to working with the EPA on implementation of the Tools for Schools Program...wholly with the assistance of Dr. Richard Shaughnessy and his staff at the University of Tulsa." To download a copy of this letter, click here.

June 3, 2005 Settlement Agreement
This is what the Oklahoma State Department of Education and Jenks Public Schools used to drive us into court when we filed a complaint. Note language that includes "relating to incident in April 2004" and "sustained personal injuries as a result of exposure to pollutants."

June 28, 2005 Transcript of Friendly Suit, HAROLD M. VOSS, JR. and KIMBERLY VOSS, individually and as co-guardians of the person and estate of Ashley Lynn Voss, an incapacitated adult, Plaintiffs, vs. INDEPENDENT SCHOOL DISTRICT NUMBER 5 of TULSA COUNTY (Jenks Public Schools), Defendant.
Note highlighted section that clearly states "sustained personal injuries as a result of exposure to pollutants at Jenks School District in or about April of 2004." To download, click here.

May 2005 Jenks Public Schools Application for the Malcolm Baldrige National Quality Award
Three pages have been extracted from Jenks Public Schools' application for the Malcolm Baldrige National Quality Award that refer to indoor air quality monitoring "using the EPA's air quality tools." It also certifies that "no injuries due to hazardous waste and chemical mismanagement have occurred as a result of school/work procedures in place for the past seven years." Please refer to the Tulsa World article of 6/30/2005 regarding "sustained personal injuries from April 2004 renovations to the high school building." You be the judge! To download, click here.

2010 Baldrige Award Application Forms
See highlighted sections of the application that include an "Ethics Statement and Signature of the Highest-Ranking Official." To download, click here.

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State Complaint

Refusal #1: November 17, 2005 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
To download a copy of this letter, click here.

Refusal #2: February 20, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
To download a copy of this letter, click here.

Refusal #3: March 12, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
To download a copy of this letter, click here.

Refusal #4: July 24, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
To download a copy of this letter, click here.

Refusal #5: August 25, 2008 Correspondence from the Oklahoma State Department of Education Refusing to Investigate State Complaint Under IDEA
To download a copy of this letter, click here.

Decision of the Oklahoma Civil Court of Appeals and Affirmation by the Oklahoma Supreme Court

Oklahoma Civil Court of Appeals Opinion (June 27, 2008) and Affirmation by the Oklahoma Supreme Court (October 30, 2008)
To download a copy, click here.

In part, it states:

"Contractual intent is determined from the entire agreement."
"School, however, ignores other provisions of the Release which puts the parties' intentions in context."
"A release will not be construed to include claims not contemplated by the parties at the time of the execution."
"If school was contemplating Parents' waiver of any and all claims from controversies other than "the incident in April 2004," and we have not been directed to any persuasive evidence it was, it was incumbent on School, as drafter of the Release, to insure there were no ambiguities in the document. They failed to do so."

Fallout After OSDE Finally Investigated the Complaint

February 12, 2009 Correspondence from the Oklahoma State Department of Education Related to Review and Reconsideration
To download a copy, click here.

November 18, 2009 Correspondence from the United States Department of Education Office for Civil Rights
On August 13, 2009, a complaint was filed with the USDOE OCR against the Oklahoma State Department of Education. It was then referred to the USDOE Office of Special Education Programs (OSEP) of the Office of Special Education and Rehabilitation Services (OSERS) since "allegations against the OSDE also pertain to issues covered by the Individuals with Disabilities Education Act (IDEA)." To download a copy of the letter referring the complaint to the USDOE OSEP, including the allegations against the Oklahoma State Department of Education, click here.

May 5, 2009 Correspondence from the Oklahoma State Department of Education Abruptly Closing the Investigation
The Oklahoma State Department of Education wrote Kirby Lehman, Superintendent, Jenks Public Schools, and stated that "Based on your written assurance that these corrective actions have been or will be implemented, the complaint investigation is closed." To download a copy of this letter, click here.

There had been no other correspondence with the Voss Family from the Oklahoma State Department of Education since February 12, 2009.

July 28, 2010 Correspondence from the United States Department of Education Office of Special Education and Rehabilitative Services
The USDOE Office for Civil Rights forwarded the complaint against the Oklahoma State Department of Education to the USDOE Office of Special Education Programs (OSEP) of the Office of Special Education and Rehabilitation Services (OSERS) to investigate OSDE's violations of IDEA. This is OSEP's response. While they state that "the OSDE acknowledged that it erred in requiring you to go to court," the USDOE fell short of their directive to find them in compliance or noncompliance of IDEA. The USDOE also did not rely on evidence provided to determine that new evidence was accepted by the OSDE from the school while ignoring our pleas about the submission of a "false" document. To download a copy of the USDOE OSEP letter, click here.

To download a copy of a letter from the Oklahoma State Department of Education to the USDOE OSEP, click here. Refer to the settlement agreement that was provided the OSDE and the transcript of the "friendly suit" (settled in "district court" and not "federal court," as the OSDE mistakenly asserts) to see what the OSDE's decision was based on. Note language that includes "relating to incident in April 2004" and "sustained personal injuries as a result of exposure to pollutants." You be the judge!

Although the USDOE OSEP stated that the Oklahoma State Department of Education "erred," the USDOE OSEP "investigation" of the Oklahoma State Department of Education violations of IDEA was incomplete and provided no remedies.

August 2, 2010 Correspondence to the United States Department of Education Office of Special Education Programs
A letter was written to the USDOE OSEP since their letter of July 28, 2010 did not suggest "corrective measures, sanctions, or retribution for the actions of the OSDE." We are still awaiting a response. It has been one year since one office (OCR) of the USDOE received the complaint and almost a year since another office (OSEP) was asked to review it for procedural violations of IDEA. OUR FEDERAL TAX DOLLARS AT WORK!

To download a copy of the letter, click here.

FOIAs

August 2, 2010 First Freedom of Information Act (FOIA) Request of the Oklahoma State Department of Education
To download a copy of the letter, click here.

September 17 , 2010 Second Freedom of Information Act (FOIA) Request of the Oklahoma State Department of Education
When the Oklahoma State Department of Education indicated through their representative that they did not intend to provide "any and all evidence" related to the case, a second FOIA was filed. To download a copy of the letter, click here.

October 5, 2010 Freedom of Information Act (FOIA) Request of Jenks Public Schools
The FOIA requests "an accounting, for the sake of the public record, of all court costs and attorneys fees in their entirety associated with this case," including but not limited to Rosenstein, Fist, and Ringold. To download a copy of this letter, click here.

October 8, 2010 Freedom of Information Act (FOIA) Request of the United States Department of Education
Some interesting information came out of the FOIA filed with the Oklahoma State Department of Education which will be uploaded. The evidence raised some questions about the "investigation" of the USDOE OSEP. Therefore, we filed a FOIA with their office to see what exactly was done. To download a copy of this letter, click here.

Evidence Derived From FOIAs

Oklahoma State Department of Education

The following documents were only provided to us after filing a FOIA with the Oklahoma State Department of Education:

Interview Questions: Barbara Hair, School Psychometrist, JPS
Interview Questions: Linda Modenbach, District Coordinator for Special Education, JPS
Interview Questions: Lisa Muller, Assistant Superintendent for Curriculum, JPS
Interview Questions: Jamey Fox, Physical Therapist, JPS
Interview Questions: Elana Grissom, JPS
Interview Questions: Holly McVay, Home Instruction Teacher, JPS
Interview Questions: Sara Fields, Assistive Technology Coordinator, JPS
Interview Questions: Terri Alexander, Special Education Teacher, JPS
Interview Questions: Cathy Mitchell, Occupational Therapist, JPS
Interview Questions: Marian Arroyo, Speech Language Pathologist, JPS

Meeting Summary, December 1, 2008: To Misty Kimbrough from Gail Priddy

Kimbrough Notes, June 8, 2010: Documenting Conversation with Judith Gregorian and Genee Norbett of the United States Department of Education OSEP

Kimbrough Notes, July 7, 2010: Conversation with Judith Gregorian of the United States Department of Education OSEP

Coming soon.

United States Department of Education

New! 7/17/11 The law requires a response from the USDOE in 20 days but, no surprise, it took 7 months and multiple phone calls to finally receive the results. Frankly, I have been so disgusted that I could not even bring myself to upload the results. They are telling...and they are coming! New! 7/22/11

Jenks Public Schools

New! 7/22/11 We filed a Freedom of Information Act with Jenks Public Schools, specifically asking for the amounts paid by Jenks Public Schools in legal fees related to our cases. We were surprised by their response:
"All of Rosenstein Fist and Ringold's legal bills were submitted directly to the District's insurance carrier for payment." "Any time spent in connection with proceedings before the Oklahoma Civil Court of Appeals and the Oklahoma Supreme Court was billed by Rosenstein Fist and Ringold to the District's insurance carrier and paid by the District's insurance carrier."

Needless to say, we did not have the benefit of an insurance carrier to cover our legal expenses while Jenks Public Schools dragged us through the courts. We prevailed in every court but it was a non-reimbursable case. Our legal fees were on us! No, folks, it is not a level playing field! I will provide this document for download soon.

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What Might Explain the Condition of Special Education in Oklahoma? New! 7/22/11

September 2002 Task Force Report

At a recent speaking engagement, I was tipped off by an attendee about a workshop in an adjoining state put on by a law firm whose purpose was to "instruct school districts on how not to comply with IDEA." Upon returning home, I executed a search to try to find out more. Instead, I found a couple of interesting documents, including the September 2002 Final Report of the Task Force to Review the Complaint System for Persons with Disabilities . Please read it; it is telling. Then speak to the Oklahoma legislator, as I did, who initiated the legislation (HB 2356) and you might understand why nothing came of this report, and why we continue with the status quo.

To download the Final Report of the Task Force to Review the Complaint System for Persons with Disabilities, click here.

February 2011 Final Audit Report by the Office of Inspector General of Oklahoma's Use of Title I and IDEA Funds

In reviewing recent site statistics for my website, I stumbled upon the following keyphrase that brought someone to my website: "refund demand by the united states department of education oklahoma idea." That piqued my interest since I had heard nothing in the news about a "refund demand." So I, in turn, reused that keyphrases and did a similar search. What I found was a February 2011 report from the United States Department of the Education Office of Inspector General related to their audit of the "Oklahoma: Use of Funds and Data Quality for Selected Recovery and Reinvestment Act Programs."

The report states: "We identified $16 million in State Fiscal Stabilization Fund (SFSF) Government Services Funds which OSF (Office of State Finance) is unable to account for how the funds were expended" and "consider the $16 million to be unaccounted for and...there is an increased risk that funds have been or will be used for unallowable purposes..."

The audit report also shows "OSF drew down approximately $19.2 million in SFSF Education Stabilization Funds (ESF) in excess of the LEAs' (Local Education Agency) needs. There was also evidence of "unallowable expenditures" and "unsupported costs" used by audited "subrecipients."

Now, the federal government demands that Oklahoma either show evidence that the funds "were expended appropriately or return $16 mllion."

To the State of Oklahoma and the Oklahoma State Department of Education: how does this assist students who are served under Title I and IDEA in Oklahoma?

To download a copy of this audit, click here.

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