It’s Becoming Harder (But Not Impossible) To Get Turning-Five Deferrals

There is no certainty when dealing with a gargantuan bureaucracy like the NYC Department of Education. Having practiced in this area for over 25 years, our firm has lived through many changes and cycles. 

A recent shift that parents need to be aware of is that “Turning Five” IEP teams are not as forthcoming as they have been in the past when it comes to issuing deferrals to attend a state-approved non-public school. 

State-approved non-public schools (such as Churchill, Parkside, Learning Spring, Hawthorne, Blue Feather, SLCD, Hallen, etc.) are private schools that appear on the NYS Commissioner of Education’s approved list to enroll classified children with IEPs. When an IEP team determines there are no appropriate public school programs for a child, they can defer the case to the Central Based Support Team (CBST) for approved private school placement. The DOE directly pays the school’s tuition and provides round-trip transportation. 

Thankfully, not much has changed for parents who need a continuation of a deferral for future years. This continues to happen with very little push back. And we continue to experience great success with families who ask for a deferral for the first time after their child has not succeeded in a public school program.

But for our turning-five families, things feel differently. In the past, IEP teams have been more willing to defer turning-five students at the first IEP meeting when those students’ parents have had acceptance letters to one of the approved non-public schools. Now, we are finding that securing a deferral often takes more than one IEP meeting.

It has long been our firm’s practice to send a lawyer with our clients to turning-five meetings when the child has been accepted to an approved non-public school in order to assist the parents in arguing for the deferral. We continue to do this. In this current climate, we have been and will continue to send our attorneys to additional IEP meetings that we may advise you to request after visiting the DOE’s placement offer. We may also recommend that you take an expert that knows your child on those visits or to one of these IEP meetings.

Our message is this: It has become much more difficult (but not impossible) to get a deferral at your first turning-five IEP meeting—expect to do a lot more work. Much depends on your child’s individual circumstances and the temperament of your IEP team. However, if you are ultimately unable to get a deferral, most of the approved non-public schools are willing to enroll your child if you pay the tuition and sue.

It’s truly shameful that the DOE is making deferrals to approved non-public schools harder to get for Turning Five families, particularly those with more modest incomes who have long relied on approved schools as a way to secure an appropriate education. This sea change is in stark contrast to the de Blasio Administration’s original campaign message about ending the so-called “Tale of Two Cities.” We encourage you to write your city representatives about this issue if it affects you and tell them your story. 

Understanding the Importance of Classification on an IEP

by Abbie Smith

Many parents ask us if the classification their child receives on their IEP really matters. As with all things in special education, the answer is: It depends!

Preschool students in New York City are all given the same classification by the CPSE (Committee for Preschool Special Education) on their IEPs: “Preschooler with a Disability.” But once a child turns 5 and enters the CSE (Committee on Special Education), they must be given a more specific classification. This is because the Individuals with Disabilities Education Act (IDEA), which is the federal law that provides a disabled student’s right to an IEP, requires that the qualifying student’s school performance must be “adversely affected” by one of 13 conditions:

  • Autism
  • Deafness
  • Deaf-blindness
  • Emotional disturbance
  • Hearing impairment
  • Intellectual disability
  • Learning disability
  • Multiple disabilities
  • Orthopedic impairment
  • Other health-impairment
  • Speech or language impairment
  • Traumatic brain injury
  • Visual impairment (which includes blindness)

It isn’t uncommon for parents to look at this list for the first time and wonder if a classification will be stigmatizing or limiting. While no one can promise you that someone won’t prejudge your child because of their classification, the vast majority of educators understand that these labels serve a procedural purpose only. At the end of the day, choosing a classification is simply a necessary step in getting your child what they need to learn and thrive at school.

Here are some other important things to understand about classification:

Classification is not the same as diagnosis. Julie may have a diagnosed hearing impairment, but it is entirely possible that the IEP team classifies her with “Other Health Impairment” if she also has ADHD and her significant attentional issues are impacting her ability to learn.

Classifications are selected based on what most impacts a child’s learning. The decision about which classification to pick is made at the student's IEP meeting. The IEP team (including the parent) will discuss the options and choose the classification that best fits the child’s situation. Even when a child could fit into two (or more) boxes, a team cannot “dual classify” – but the IEP program must still address all the identified needs of the child.

Classifications may change. Perhaps Julie was classified with “Other Health Impairment” as a kindergartner; but then, as the reading and writing demands of school increased, her classification was changed to “Learning Disability.” The needs and challenges of children change as they grow, and so should IEP classifications.

Approved Non-Private Schools are only licensed for specific classifications of IEP students. If your IEP team decides to defer you child’s case to the Central Based Support Team (CBST) for placement in a state-approved non-public school (, the school your child is placed in must be licensed to accept students with the disability classification on the child’s IEP. If you are considering one of these schools, make sure you know what classifications the school can accept.

Some classifications come with services. For example, an Autism classification must come with parent training services, and a Speech and Language classification is understood to imply a need for speech therapy.

When a child is unilaterally placed in an independent private school, the school is not obligated to “meet” the IEP as it is written, so the classification becomes far less relevant. However, because you must attend each annual IEP meeting with an open mind, including public options and approved non-private school options, it is important that you do not ignore the classification conversation even if you anticipate that your child will continue to attend an independent private school.

NYU’s First ASD Nest Conference Showcases its Success and Future Promise

by Eliyanna Kaiser

Last week, the ASD Nest Support Project of NYU Steinhardt held its first Conference for Autism and Inclusive Education (#NestCon). I attended along with hundreds of clinicians, academics, school administrators, and parents from all over the country (and some international participants), to learn more about New York City’s renowned ASD Nest program. The conference clearly demonstrated how NYU continues to support the Nest program by staying abreast of the latest research and thinking.

The keynote address was given by Dr. Catherine Lord from the Center for Autism and the Developing Brain. Dr. Lord described how her research shows that there are moments of greater opportunity for the developing brain in certain domains, such as adaptive skills from age 4 to 9, or social skills from age 9-14. She also talked about the importance of focusing on emerging skills as opposed to deficits, and the benefits of having access to typical peers for stronger social outcomes. Finally, she presented some data on how having a part-time job in high school or college leads to better employment outcomes for students transitioning into adulthood. Dr. Lord closed by giving an impassioned appeal that we listen to self-advocates and recognize their lived expertise in leading the discussion around how to best support autistic children and adults.

Other presenters included Dr. Stephen Shore, the renowned autistic speaker and author, and a professor and researcher focusing on autism education at Adelphi University. Dr. Shore spoke about the power of identifying a child's strengths and strong interests to help set the stage for lifelong success, as well as the importance of encouraging autistic children to understand their diagnosis and become their own self-advocates. 

Also of note was Dr. Brenda Myles, president of AAPC Publishing and the author of The Hidden Curriculum: Practical Solutions for Understanding Unstated Rules in Social Situations, gave practical advice about how to specifically teach kids to understand the unspoken rules of slang, metaphors, and body language, as well as the “hidden curriculums” of the many cultures and other identities we belong to. She gave me much to puzzle over on the subject of how to teach the hidden curriculum of men's room urinal etiquette.

We also heard from Peter Vermeulen of the Flemish Autism Society, who described his cutting edge research in what he has termed “context blindness,” by which he means that we can understand why autistic people have difficulties with communication, social interaction, and unpredictable changes because of their challenges with understanding and identifying contextual clues. Dr. Vermeulen’s recent article in the Irish magazine Frontline goes into some more detail about this fascinating alternative model for understanding how the autistic brain processes information, and he has also authored a book called Context Blindness.

It’s no secret that the ASD Nest program is the most efficacious special education program that New York City has to offer, and this conference helped to highlight why that is. The collaboration between scholarship, policy, and programming is a powerful combination.

For the 2017-18 school year, the ASD Nest program boasts 270 classrooms, including 24 elementary schools, 11 middle schools, and 8 high schools—all told more than 1,200 students with autism are served by this program. At #NestCon they announced that they will be expanding their middle and high school offerings for the 2018-19 school year, which is great news for kids in the elementary school classrooms who hope to move on within this program, as well as for families of other kids with autism who are currently in more restrictive settings but who may be ready to consider a less restrictive, inclusion setting, like Nest, in the future.

You can learn more about the ASD Nest program on the Department of Education’s ASD Programs Family Resource Guide page, and on the NYU Steinhardt website.

Kevin and Avonte’s Law Passes Senate

Every day we hear from our autism parent clients that wandering and elopement behaviors keep them up at night. And while there are many incredible schools with unparalleled behavioral expertise in New York City, if a child has these behaviors, and especially if they are also nonverbal, low-verbal, or may shut down when overwhelmed, not even the most secure school with the best behaviorists can fix such complex issues overnight.

Parents have every right to be stressed out. According to the National Autism Foundation between 2011 and 2016, nearly one-third of missing-person cases of those with autism resulted in death or required medical attention. One solution that more and more families are using is to use GPS-enabled tracking devices. This technology provides some families with a little more peace of mind, but these devices usually require their own cellular plans that must be paid monthly, and that cost can be out of reach for many.

On December 21st, just before the holidays, the U.S. Senate approved S.2070, Kevin and Avonte’s Law of 2017. The bill is sponsored by New York Senator Charles Schumer (D), and was first introduced in 2014. It was named in part after Avonte Ocquendo, a nonverbal 14-year-old boy with autism who eloped from his public school in Queens in the fall of 2013 and tragically drowned in the East River. Its other namesake was 9-year-old Kevin Curtis Wills, another boy with autism, who drowned in 2008 after wandering away from his Iowa home.

Kevin and Avonte’s Law would provide grants to community organizations and law enforcement agencies to provide education and non-invasive, voluntary tracking technology to families who care for someone with autism, dementia, or other special needs who are prone to bolting, elopement, or wandering. In order to become law, the House must approve the identical bill, H.R.4221, sponsored by New Jersey Rep. Christopher Smith (R), and the president must sign it into law.

Kevin and Avonte’s Law enjoys broad, bipartisan support, and there is every reason to hope that it may become law this year. Autism Speaks has an advocacy page for this issue with a form you can complete to send a message to your representatives asking them to support Kevin & Avonte’s Law.

Parents of Children Born in 2013: Next Steps in the Turning Five Marathon

Many of you are already leading the pack in the marathon that is the Turning Five process. Maybe you attended a turning five talk (or two) or battled the crowds at the special needs school fair. Perhaps you have completed or scheduled a neuropsychological assessment and toured a dozen or more schools. To take the tired marathon analogy further, you’ve hopefully learned to pace yourself.

But as 2017 races to close, it’s a good idea to get a handle on what’s still ahead.

First, if you are applying to special education private schools or a special program (ASD Nest, etc.) get those applications in as soon as you can. Many of the private schools and special programs have hard application deadlines of December 31st, and the ones with “rolling admissions” won’t have spots forever. If you are waiting for progress reports or a neuropsychological evaluation before you submit your child’s application—don’t. Even if your application is “incomplete” without some required document, unless the admission staff specifically tell you not to submit incomplete applications it’s usually better to send in what you have and indicate that a final report from Doctor Slowpoke or a quarterly progress report from Classroom Teacher Swamped is forthcoming.

Second, pay attention to the NYC Department of Education’s kindergarten process and make sure you are on top of cooperating fully.

In October, the NYC Department of Education’s Special Education Office sent out an important letter to parents of preschool children with IEPs who will be “turning 5” during the 2018 calendar year, and who are expected to enter kindergarten in September 2018. That letter explained that you should soon be receiving another letter from the Committee for Preschool Special Education (CPSE) notifying you that your child has been referred to the school-age program (CSE). It also explains that you are expected to participate in two parallel processes: 1. Applying to kindergarten by January 12, 2018; and 2. The kindergarten IEP process.

Even if you feel that your child’s needs could never be met in your local public school or that your child is not ready for kindergarten, you are still asked to apply for kindergarten through the regular Kindergarten Admissions application portal. While not mandatory, many of us who practice special education law believe that it demonstrates your willingness to be open-minded and cooperate with the process. Remember: kindergarten registration closes on January 12, 2018.

For the parallel kindergarten IEP process, you can expect a few things to occur. 1. You are encouraged by the DOE to attend a kindergarten orientation meeting for children with disabilities. Many of these meetings have already occurred, but there are a few more events scheduled for December. You do not need to RSVP for these events and the DOE does not (as far as we know) take attendance, although you can usually sign in at the school’s security desk. 2. You may be invited to an orientation meeting at your community school by your child’s CSE Review Team. These are the people who you will be working with you to create your child’s IEP. Try to attend this meeting if you are invited to one—but don’t be the squeaky wheel; just listen and learn what you can. 3. You will be contacted by the CSE Review Team to sign papers to give your consent to evaluations/observations of your child and to schedule a social history interview. Be diligent about cooperating with these requirements and use certified mail whenever you send any document to the DOE.

When all this is done… it’s time to wait. In the late winter/early spring you will begin to hear back from schools and programs you may have applied to, and the DOE should contact you to schedule your Turning Five IEP meeting. More on all that in a later blog post!

For (much) more information about the Turning Five/Kindergarten transition process, please see Regina Skyer's 2015 book, How to Survive Turning Five: The Handbook for NYC Parents of Special Education Children. Advocates for Children has also recently released the 2018 update for their kindergarten transition publication: Turning 5: A Guide to the Transition from Preschool Special Education to Kindergarten. The NYC Department of Education also publishes an annual guide: Kindergarten: An Orientation Guide for Families of Students with Disabilities Entering Kindergarten in Fall, 2018.