The Administration Policy of Family Separation at the Border is Morally Abhorrent—and Violates IDEA, ADA Laws

The following statement concerning family separation at the US/Mexico border was released yesterday by the Council of Parent Attorneys and Advocates (COPAA).

Statement Calling for a Halt to the Practice of Separating Children from their Parents

The Council of Parent Attorneys and Advocates (COPAA) exists to protect the rights of children with disabilities.  The Administration’s inhumane and intolerable practice of separating undocumented children from their parents, who know the children best and who speak their familial language, ensures that the rights of children with disabilities are not protected. All children impacted and interned have rights under federal law. Children with disabilities are covered under the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, yet the system in place that forces separation does not allow for full disclosure and understanding of what needs such children may have nor does the current structure allow for the identification of suspected disabilities as required by IDEA and Section 504. Equally as disturbing is the fact that separation is occurring when the research is clear that such forced separation causes complex stress in these young victims.  Such toxic stress results in physiological changes in the brain which can disable a child’s ability to learn, alter the physiology of a child’s developing brain, and inhibit the performance of daily activities such as thinking, reading, and learning. COPAA calls upon the Administration to halt the practice of separating families now and work immediately to find humane and legal means to address the immigration challenges we have at our nation’s border
— Council of Parent Attorneys and Advocates (COPAA), June 19, 2018

COPAA is a national advocacy organization promoting the legal and civil rights of students with disabilities and their families. The Law Offices of Regina Skyer & Associates are proud members of COPAA, and our firm’s partner Jesse Cole Cutler is a board member.

If you are looking for ways to help families separated at the border, the Texas Tribune has published a comprehensive list of respected organizations who are engaged in that work and the form of assistance they are seeking.

Happy Mother’s Day (from one special needs mom to another)

by Tracie Smith

For those of you who don’t know me, I’m Tracie Smith, one of the paralegals at Skyer Law. When you call the office and hear an Australian accent greet you, that’s me.

I’m also the mom of two beautiful kids. My oldest daughter will be 9 next week, and I’m thankful for her learned patience and fierce advocacy (even at this age) for her autistic brother who is 6. My son is (as I like to say) “currently” non-verbal, and he’s also one of the sweetest little fellas you’ll ever meet.

Mother’s Day is filled with a lot of emotions for us special needs moms, grandmas, guardians, and other mother figures in our children’s lives. As a mom, there will always be doubts—am I getting my child enough speech, OT, PT, ABA, Floortime, music therapy, etc.? We can’t do everything. Trust that what you’re doing is enough, because you are mom and moms know best!

There are a lot of Mother’s Day articles written for other kinds of mothers, and plenty of well-wishers will tell  us to celebrate this day with “me time,” to find a great book, take a yoga class, be pampered, and relax, and, let’s face it, we, more than anyone deserve it! I hope that some of you manage to get a real break today. But for the moms like me who are just hoping the day goes smoothly and without any drama, my wish is you get that day.

I know there are many of you who won’t get a “Happy Mother’s Day” spoken out loud by some or all of your children this weekend. But please trust and know that your child loves you and you are doing awesome. I know you are doing awesome because I talk to so many of you every single day, and I hear in your voices and in your words how much you do for your children. If your child cannot “currently” talk like mine, I want to say on your child’s behalf: Happy Mother’s Day, Mom. Thank you for all you do. You are my everything.

Skyer Law's first Turning 5 Workshop of 2018 is May 24th

HOW TO SURVIVE TURNING FIVE
Brooklyn Conservatory of Music Concert Hall
58 Seventh Avenue (Brooklyn)
Thursday, May 24th
7:00pm-9:00pm

For NYC parents of preschool-aged children who have special education needs, transitioning to kindergarten can be overwhelming. The experienced team of attorneys at Skyer Law have guided thousands of clients through the so-called “Turning 5” process. Our founding partner, Regina Skyer, literally wrote the book on How to Survive Turning 5.

This workshop will explain your legal rights, placement options, and share strategies on how to successfully position yourselves for an appropriate kindergarten placement.

This event is sponsored by the Brooklyn Conservatory of Music. It is a free event open to the public. Please register via the Brooklyn Conservatory of Music website.


Note: We have updated last week's blog post, "What is Pendency?" for clarity following feedback from readers.

What is Pendency?

by Magda Labonté

Let’s begin by clearing up some common misconceptions:

  • Pendency is not a special education program. It is a legal injunction.
  • You cannot request pendency at an IEP meeting. Pendency is ordered by an impartial hearing officer (an administrative law judge). 
  • Your child is not entitled to pendency outside of the impartial hearing process.
  • Pendency is not only for turning-five students.
  • Pendency is not site-specific. It is program specific and portable.
  • Pendency does not mean a school or program is free.

So, what is pendency? Pendency is the IDEA’s (Individuals with Disabilities Education Act) way of preventing the disruption of your child’s education when the school district and the parents disagree on the special education services that are recommended in an IEP (Individual Education Program).

If you disagree with the program recommended at an IEP meeting, you probably know that you can decide to exercise your due process rights and file an impartial hearing complaint. This is where pendency comes in, solving the problem of how your child receives an education while the results of the impartial hearing process are pending.

Pendency is triggered by filing an impartial hearing complaint. It entitles your child to remain, or “stay-put,” in the program that you and the District last agreed upon. Pendency ends when a settlement agreement has been finalized or when a hearing officer’s decision is rendered. If one of the parties appeals the hearing officer’s ruling, pendency continues until a final decision is rendered. This can span anywhere from a few months to the entire school year and beyond. 

In New York City, many people associate pendency with the turning-five process and so-called “preschool pendency.” When pendency is triggered in a turning-five case the “stay-put” program is the preschool (CPSE) program, so the child remains in their preschool program.

But pendency is an entitlement available to preschool and school-age children. It can be used to maintain the child’s last agreed-to IEP or, when applicable, the unappealed decision of an impartial hearing proceeding.

The most common way we see this in action is when the parent of a school-age child goes to an impartial hearing for a tuition reimbursement case and wins. Then, the impartial hearing officer’s unappealed decision becomes the “stay-put” placement. If the parent exercises their due process rights the following year, they can seek an interim order on pendency, requiring that the DOE begin funding the “stay-put” program in the manner specified in the IHO’s pendency order. This can mean that the DOE pays for it directly or that the parent is reimbursed, depending on the specifics of the case.

However, this does not mean the parent will ultimately pay nothing. The lawsuit that triggered the pendency order still must be resolved in either a final settlement or a final unappealed decision (if the case goes to hearing). In NYC, either process takes a great deal of time to finalize, resulting in the majority of the year’s tuition or fees being paid by the district. The timing varies in districts outside of NYC.

You might be wondering what happens if you lose at a hearing. There’s good news here too, for parents with pendency orders. When you appeal a loss, the pendency order continues and the money still flows until settlement or a judgment by the State Review Office (SRO) is finalized. The parent is not responsible for any tuition or fees already paid by the district during the settlement or hearing process even if they ultimately lose.

It is for the above reasons that, in some cases, when a family cannot reach a satisfactory settlement with the DOE and we are forced to go to hearing that it can be a mixed blessing. Impartial hearings are inherently risky, stressful, time consuming, and expensive. But a win in an impartial hearing establishes a valuable entitlement: pendency.

Upcoming Events from Skyer Law

SPECIAL EDUCATION AND THE PRESCHOOL-AGED CHILD
Parents League Office, 115 East 82nd Street, first floor (Manhattan)
Thursday, May 3rd
6:30pm - 7:45pm

For parents of toddlers with disabilities or delays who are aging out of Early Intervention, it’s time to think about preschool programs and your first IEP review meeting with the Committee for Preschool Special Education (CPSE). Figuring out what’s right for your child can be a stressful undertaking. Regina Skyer’s “Special Education and the Preschool Age Child” presentation provides parents an understanding of their legal rights and an overview of the options that are available to explore.

This presentation is for the Parents League, a nonprofit organization that provides advisory services for school admissions to private schools in NYC. The event is open to the public but there is a non-member registration fee of $30. See the Parents League website to register and for details.


HOW TO SURVIVE TURNING FIVE
Brooklyn Conservatory of Music Concert Hall, 58 Seventh Avenue (Brooklyn)
Thursday, May 24th
7:00pm-9:00pm

For NYC parents of preschool-aged children who have special education needs, transitioning to kindergarten can be overwhelming. The experienced team of attorneys at Skyer Law have guided thousands of clients through the so-called “Turning 5” process. Our founding partner, Regina Skyer, literally wrote the book on How to Survive Turning 5.

This workshop will explain your legal rights, placement options, and share strategies on how to successfully position yourselves for an appropriate kindergarten placement.

This event is sponsored by the Brooklyn Conservatory of Music. It is a free event open to the public. Please register via the Brooklyn Conservatory of Music website.


18TH ANNUAL SCHOOL LAW INSTITUTE
PLI New York Center, 1177 Avenue of the Americas, 2nd floor (Manhattan)
Thursday, June 7th
9:00am-5:00pm

The School Law Institute is organized by the Practicing Law Institute (PLI), a nonprofit organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. This day-long educational event explores the latest legal developments in the area of school law. It is primarily an event for attorneys, impartial hearing officers, and agency and school district administrators. However, it may also be valuable for parents interested in learning about the unique issues arising in school law.

This year, Skyer Law’s Abbie Smith will be giving a presentation titled “Mobile Lawyering: Ethical Considerations when Using On-The-Go Technology in the Practice of Law.” Skyer Law partner, Jesse Cole Cutler, will deliver the event’s introductory remarks.

A full schedule is available on the event page of the PLI website along with information about how to register. CLE credit is available for this event. The registration fee for the day is $645, but there are scholarships available.