Parents frequently want their child to receive a home program of related services and or ABA on top of or in addition to seeking funding or reimbursement for placement in a private special education school.  By pursuing this type of claim beware, you are most likely going to find yourselves at an Impartial Hearing.

What the school district will argue is that if a parent is seeking an afterschool program then the private school where the child is enrolled is not appropriate.  The district bases their argument on case law that says for a private school to be deemed appropriate for a specific child it has to be able to meet all of that child’s special education needs.  So you see when you as a parent are asking for after school services you are saying or implying that the school is not meeting all of your child’s needs.

Now of course we all know this is not the case, and that there are many children, particularly those that are on the Autistic Spectrum that need not only a highly specialized private school but a continuation of services after school in order for them to be able to access the education that they receive in the private school.

These types of cases are very complicated and require a great deal of pre-hearing planning.  We suggest that any parent who wants to pursue this type of action, meet with an attorney specializing in this area of law.  We need to help you create a full record prior to your requesting an impartial hearing.   We need your private school to be on board and supports your position.  We need to demonstrate that you have requested this to the CSE and what their response has been.  And most importantly, we need to show that the home program is benefitting your child’s functioning in school, in essence your child needs this in order to effectively access his school program.

REGINA SKYER and LARA DAMASHEK

New York City is the epicenter of Private Special Education Schools.  As I explained in the last blog, Private Special Education Schools,  there are two categories of Private Special Education Schools -  Approved and Independent.   Here is an abridged list of some of the Independent Special Education Private Schools serving special needs students:  Aaron, Bay Ridge Prep, Brooklyn Center for Autism, Children’s Academy, Columbia Grammar LRE, Cooke Center and Academy, Dwight Quest, Eagle Hill, Forman, Forum, Foundation, Gateway Middle, Gersh, Hear our Voices, Ideal, Imagine, Manhattan Children’s Center, Manhattan Day, Mary McDowell Friends School, McCarton School, Reach for the Stars,  Rebecca, Robert Louis Stevenson,  Smith School, Stephen Gaynor, Sterling, West End Day, Windward, Winston Prep, Vincent Smith, Xaverian Legacy and Equity, Y.E.S.S., York Prep Jumpstart.

The salient feature that sets these Independent Special Education Private Schools apart from the Approved  special education private schools is that they do not appear on the New York State list and therefore they cannot be recommended or funded directly through the school district.  There are also other noteworthy distinctions.  The Independent Private Special Education Schools are not bound by many of the restrictions of the State Education Department, and thus can set their own admissions criteria, class size, curriculum, staffing requirements.  Since they do their own screening they rely heavily on the reports of private evaluators.  Many of these private special education schools provide parents with a list of evaluators that are familiar with their school and whom they recommend.  The independent schools are not required to follow a child’s IEP, and don’t even require that a child have one.

An Independent Private Special Education School can set their own tuition rate, and since they require payment from the parent they each set their own terms of enrollment and most require a parent to enter into a contract with them.  Many of the parents who enroll their children in these independent special education schools hire attorneys and bring a lawsuit against their school district seeking tuition reimbursement.  These lawsuits are based on parents’ belief that the school district failed to offer their special needs child a “FAPE” (Free Appropriate Public Education).  Any parent that is thinking about this route regarding special education schools should consult an attorney who specializes in this area of law early in the process. Many parents are under the misconception that there is an automatic reimbursement program – this is simply not the truth and my next blog will attempt to clarify this myth….so stay tuned….

New York City is home to more private special education schools than anywhere in the country or world.  When we speak of private special education schools we actually mean two distinct categories of schools:  Approved and Independent.  Today’s blog will discuss the Approved private special education schools and what this means for parents.

To receive New York State Approved status a school has to apply and meet standards and criteria set forth by the New York State Education Department, located in Albany.  To become an approved school is not an easy process.  It is time consuming and expensive.  After meeting  hefty requirements and conditions, the school then has to agree to the tuition rate set by the State Education Department.  In many instances the tuition rate is far less than what it costs to actually educate a student.

The appealing benefit of Approved School status to a parent is that when the IEP review team determines that there is no appropriate public school for a child, they can recommend and fund placement at an approved private school.  This is referred to as funding and it is why these schools are often referred to as “funded schools.” For a complete list of the New York State approved schools go to:    http://www.p12.nysed.gov/specialed/privateschools/home.html

Because there is a possibility of prospective funding and parents not having to expend tuition fees, the Approved schools are very popular.  Within the five boroughs of New York City I estimate 25 such schools.  There are other schools that are out of the city in nearby suburbs that also have Approved status.  These schools serve different types of children and are licensed only to accept certain classifications.  It is important to speak with someone who is familiar with your child and these schools to get a list of which school might best serve your child.

The next three blog posts will continue to deal with Private School placement and funding.  I will address the category of Independent Private Special Education Schools and how the funding process works.  Stay posted…

Regina

“Our son David is scheduled to graduate from Summit school this coming June.  Because of all the support and special education he has received, he has passed either Regents exams or RCT exams and therefore qualifies for a real high school diploma.  Yet, because of all of David’s issues he can’t attend a regular college and we found a special education post high school program that offers support, small classes and life skills.  It is not a degree program and we were told that there were several students whose school districts were funding or contributing towards the tuition.  Are we eligible for this once he graduates from Summit?”

The quick answer is only if you are willing to sacrifice David’s  receiving a true and genuine high school diploma.  New York State Commissioner’s Regulations state that a child is eligible to receive a free appropriate public education until the end of the school year in which the student turns twenty-one (21) or until receipt of a regular high school diploma. Since David is eligible to receive a regular high school diploma this June, as soon as he does so, he is no longer eligible for services from your school district. You might explore what if any services he can receive from VESID, but it is highly unlikely that he will receive funding for this program.  (www.vesid.nysed.gov)

This question opens a larger issue and one that continues to haunt parents – WHAT DO YOU DO AFTER HIGH SCHOOL?  The first publication of my career was in 1982 when I co-authored and published a book with that exact title.  It was a parent handbook of programs and services for the learning disabled.  The book was revised in 1984 and again in 1986.  I stopped working on it when I went to law school.  The times have certainly changed and post high school opportunities are as varied as the students they serve.  All of the private special education schools consult with parents about ex-missions and the network of special college programs and independent living programs continues to grow.  As the autistic population ages the need for group homes and supervised living arrangements grows.  These programs are harder to find and to gain entry to.  They are usually under the auspices of Office for People with Developmental Disabilities (www.opwdd.ny.gov).

I am happy to answer questions like these both in your emails and as blog postings.

“Our child is in Early Intervention (E.I.) as a result of her having a complex congenital syndrome.  She receives wonderful services and has an effective and busy home program with providers that we are very pleased with.  We are seeing real progress.  She turns three in May and ages out of the E.I. and has to enter CPSE.  We have learned through our E.I. service coordinator that our school district and the CPSE administrator assigned to our case is going to recommend that our daughter be placed in a center based program without any home services.  We strongly disagree with this. Is there such a thing as “pendency” for Early Intervention so that she can stay in EI for another year while we fight the CPSE?”

This is a complicated question that deals with eligibility, conflicts between school districts and something known as pendency.

For those of you that are not familiar with the term pendency it’s a stay put provision invoked and ordered when a parent (usually through their attorney) files for a due process/impartial hearing.  Simply put: During the course of the pending hearing and any subsequent appeal the child shall remain in his or her last agreed to placement (IEP).

The rules defining when a child ages out of the EI program are clear and governed by public health law.  A child ages out of E.I. on his or her third birthday, unless the child receiving EI services has been referred to the Committee on Preschool Special Education (CPSE) and determined to be eligible for preschool special education programs.  In these instances the child can continue to receive early intervention services if requested by the parent(s), but only as follows:

• Children, who turn three years of age between January 1st and August 31, are eligible to continue receiving early intervention services until September 1st of that calendar year;

• Children who turn three years of age between September 1st and December 31st are eligible to continue receiving early intervention services until January 2^nd of the following calendar year.

There are absolutely no further extensions of E.I. services.  Sometimes a parent will argue a premature birth, but this does not apply only the actual recorded birth date governs.

“SURVIVING THE TURNING FIVE PROCESS”
WEDNESDAY, MARCH 16, 2011
6:00p.m. to 7:45 p.m
At The
Grand Room
Located at the NY Open Center*
22 East 30th Street (between Madison and 5th)

The following topics will be covered:
CPSE vs. CSE: a whole new ball game (classifications, program recommendations, related services)
PRIVATE SCHOOL PLACEMENT: how to maximize your chances of funding or reimbursement
PENDENCY: it is NOT a placement option, but is the “last agreed to placement” during the “pendency” of a legal proceeding
IMPARTIAL HEARING PROCESS: the nuts and bolts of filing for an impartial hearing and how to best prepare for the best chances of winning

Please RSVP by email to:cvientos@skyerlaw.com
‘”This event is not affiliated with the NY Open Center

The second area is referred to as Regulatory Law which consists of the regulations required by agencies based on statutes.  In New York State this consists of the Commissioner’s Regulations and in New York City it consists of the Chancellor’s Regulations.

The third area is something known as Common Law or Case Law.  This refers to the rulings in trials and hearings which are not appealed and are published or reported.  Case Law makes new interpretation of the law and is cited as precedents.  For case law we also mean the New York State Review Officer’s decisions as well as applicable cases in federal or state courts. Visit the Case Law section of our website for descriptions of the most important cases in our field.

Why the need for a Special Education Glossary of Terms?

The New York City Department of Education (D.O.E.) is the largest school system in the United States, serving close to 1.1 million students each year, with an estimated annual budget of 23 billion dollars.  Approximately ten percent of the NYC students are classified as children needing special education and have an I.E.P.

The annual budget of the DOE is the equivalent of the gross national product of a small foreign country, like Uruguay or Lebanon!  The number of children and staff in the system, as well as the enormity of money being spent each year, makes it feel as though a parent has entered a foreign country when they deal with this behemoth bureaucracy.

Parents report that they find themselves in waiting rooms, at meetings and in day to day dealings with employees who are seemingly speaking the English language but using words, terms, acronyms and numbers that make no sense.   This strange lexicon of the Department of Education empowers the people who work within the system but can intimidate or frighten a parent, particularly someone new to the process.

The new language being used by a group of relative strangers has great impact on the life of your child.  Critical decisions about your child’s educational options and life are being made, and it’s not uncommon for a parent not to fully understand everything that is being said.

The full glossary is a work in progress and should be available from my office later in the year.

My career which spans 38 years, first as a social worker and then as an attorney, has always been about helping special needs children reach their potential – whatever that might be.  For nearly four decades, parents have been asking me critical questions about how to find the best possible evaluators, providers, teachers, tutors, therapists, schools and programs for their children.  Since I started my law practice in 1992 the question of legal rights, entitlements and how to get a school district to fund private school placements has been paramount in the concerns that I address.

Keeping these concerns and questions in mind, I will post a blog entry on a topic or issue related to special education in New York City, on a weekly basis.   I anticipate that my blogs will trigger questions from readers and I’ll try my best to answer these either individually or by writing a blog entry about a frequently asked question.  If you send me a question which I decide to use I will carefully remove any identifying features.  I hope you will understand, what I won’t do is give formal legal advice about any specific problem.  I will share my experience, resources, opinions and insights based on my professional experience.  For parents who need specific legal advice I can only provide this in a private consultation meeting.  I do these meetings in person in my NYC office or by Skype or telephone.

In addition to the specific information that I will provide, I’ll also speak from my heart and give you some of what I call my old fashioned common sense and kitchen wisdom.   Much of my perspective comes from raising my own children and from caring for hundreds of youngsters for 36 summers when I was the director of a special needs sleep-away camp.  As early as 1982 I published my first book called “What Do You Do After High School ?– the Nationwide Guide to Programs for Learning Disabled.”  This book was written and published in pre-internet days,  and the difficulty in researching and finding programs was enormous.  Fortunately this has changed as the world has become a virtual village.  Recently I began a consulting practice in London where I meet with families from all over the world, in search of the right services for their children.

School districts claim that all that they are required to provide is an education that is “merely appropriate.”  Although this is the correct legal standard, it is my belief that as parents and advocates our job to do far more.  Our firm works to assure that each child we represent receives an education that provides a foundation and benefit, enabling him or her to be the best that they can be.

So let’s get started…