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!

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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.

Update on the DOE’s New “3-Year Agreements”

We wrote to our clients about the DOE's new 3-year settlement agreements in February after we became aware that the City might start offering them to some clients who sue for private school tuition reimbursement. At the time, we had just received our first of such offers on behalf of a client and we weren’t thrilled with the language of the offer.

Since then, more of you have heard from us letting you know that the DOE is offering you one of these “deals.” Understandably, clients have a lot of questions about the pros and cons, and each family’s situation is unique. For some, the risks and downsides outweigh the benefits. For others, the reverse is true and taking the deal makes a lot of sense.

Now that we’ve seen more of these offers come in, we want to revisit this issue again on the blog, clearly listing the pros and cons. Please note that this is based on the language of the offers we have seen thus far. The DOE could always change the terms in the future.

Pros:
•    Might speed up the tuition reimbursement process in years two and three of a 3-year agreement.
•    Might secure a settlement amount you are happy with for two additional years.

Cons:
•    If tuition increases, you are basically locked into the dollar amount you agreed to; we are only allowed to negotiate a small Consumer Price Index adjustment. Further, any negotiation of the dollar amount of your settlement completely negates the promise of a “speedier” process.
•    The agreement is void if the parent is not fully cooperating with the IEP process or if the IEP changes “significantly.”
•    The child can’t change schools without voiding the agreement.
•    The settlement must still be approved each year by the NYC Comptroller’s office—usually the slowest part of the reimbursement process.
•    Even with this agreement, the family must still go through nearly the same process: private evaluations/updates as needed, IEP meeting, ten-day notices prepared by an attorney, submission of payment and other records, and, as mentioned above, comptroller approval each year.
•    And finally: Nothing in the agreement guarantees that the DOE will settle your case in years two and three. 

That last bolded bullet point is a big one. The city could sign one of these three-year agreements with you and still decide to litigate and take your case to an impartial hearing; they aren’t promising to settle, they are promising to pay you a certain dollar amount if they decide to settle. 

In his 2014 Special Education Initiative, the Mayor promised, among other important things, to improve the speed of the tuition reimbursement process.  In politics, it’s important to be able to say you are doing something, and while we applaud any effort to make the process for reimbursement move more quickly, the greatest inefficiencies in the speed of reimbursements seem to reside in the approval process with the NYC Comptroller’s office, and the nature of this problem has yet to be fully explained or addressed. 

One final note: Some people have called to ask how they can get a 3-year agreement for their child’s case. Unfortunately, these settlement agreements can’t be requested by a parent; they are offered by the DOE on a case by case basis. It remains unclear at this early stage what criteria the DOE is using to decide who to offer them to and who not to.

    If we receive a renewable agreement offer from the DOE for your case, we will reach out to talk about the particulars of your situation. 

Tens of Thousands of Special Needs Kids Are (Still) Falling Through the Cracks

by Lara Damashek

While there has been important progress in NYC special education (such as the Mayor’s “fast-tracking” of settlements, which has been the topic of many blog posts here), it would be irresponsible not to remind ourselves that there are a great many children who still need the community of special education advocates to keep on fighting.    

Earlier this month, the NYC Department of Education released long-awaited numbers that show how badly the City continues to struggle to serve its roughly 212,000 students with IEPs. Alex Zimmerman reported on widespread lags in completing required assessments in a November 1st article published by the education watchdog blog Chalkbeat. In the article, he reports that “[a]bout 30 percent of students had to wait longer than the two months allowed under law to be assessed for education plans that outline the services the city is required to provide them[.]” 

According to the numbers the Department of Education released, 71 % of students got their IEPs within the legally required time frame, as compared to 69.5 % during the prior school year.  As many of you are well aware, the city is required by law to evaluate a child, hold an IEP meeting, make a recommendation, and implement that recommendation within 60 school days of a parent giving their consent. See the NYC special education timeline in more detail at http://www.nyc.gov/html/acs/education/pdf/timeline%20requirements.pdf

And this wasn’t even the worst news. Chalkbeat further reported that the same data showed that “[j]ust 59 percent of students received the full range of services required on their individualized education programs, or IEPs, compared with 60 percent the previous school year.”

Although the city has warned against the reliability of its statistics, the message we take away from articles like this remains the same – there are far too many kids in our city who suffer as a result of ongoing delays in the delivery of special education services.  

Speak Now! Let Mayor De Blasio know his Policy to “fast-track” Settlements for Tuition Reimbursement is not being Enforced

Dear Clients,

We are in the trenches fighting with you and for you on a daily basis.  Over the weekend I composed the below email message which was sent this morning to three members of the city council.

The email addresses of these three city council members are: 

DDromm@council.nyc.gov       Dgarodnick@council.nyc.gov    Mviverito@council.nyc.gov

Please write to them – and ask for their help and to allow me to address the education committee.  Even if you are part of the lucky group that has been paid in full for 2015-2016, many of your friends have not.  And, we want to prevent this same delay for all cases during the 2016-2017 year. The Mayor needs to hear from you.   We are all in this together.

I am hoping that if there is enough noise that the Mayor will get the message – his re-election is close and he needs to be seen as a man of the people and for the people.  Only the Mayor can put the kind of pressure on the DOE to do their jobs.

Very truly yours,

Regina

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Dear Mr. Dromm,

I am writing to you at the suggestion of Daniel Garodnick, who has always been a supporter of parents of children with special needs and whose friendship we value.  I am respectfully requesting an opportunity to address the Education Committee of the City Council as soon as possible.   

My firm represents parents of NYC special education students.   We advocate and litigate for an appropriate education for over 1500 students a year in the NYC area.  I refer you to our website www.skyerlaw.com.   

When a parent believes that the DOE has failed to offer their child a free appropriate public education, often referred to as FAPE, they have the statutory right to remove their child from the public school, unilaterally place the child in a special education private school and sue the City for tuition reimbursement for this placement.  The mechanism for seeking tuition reimbursement is an administrative proceeding which in NYC is known as a Due Process Impartial Hearing.  There are approximately 7000 tuition reimbursement cases against the City every year.  This is a cumbersome and costly process.   We are told, but I have never received formal verification that the average cost to the City for an Impartial Hearing is $50,000 per case.   

In June 2014 Mayor de Blasio in an attempt to reduce this burden of Due Process Impartial Hearings on both parents and the DOE, issued a policy initiative which sought to reduce the number of hearings and to assist parents in receiving their reimbursement in a timely manner.  (see http://www1.nyc.gov/office-of-the-mayor/news/306-14/mayor-de-blasio-speaker-silver-new-steps-help-families-students-disabilities#/0 ) 

As a result of this initiative the DOE is now settling approximately 96% of tuition reimbursement cases on the basis of a ten day notice, rather than the filing of a formal complaint, which would trigger the Due Process Impartial Hearing to begin. Although grateful for the high number of settled cases,  the DOE has failed to adhere to any of the other tenets in Mayor De Blasio’s initiative.  The situation for special education parents has in fact worsened. For the 2015-2016 school year the DOE has stopped complying with the terms of settlements which they have entered into months earlier.  These agreements call for reimbursement payments to parents 30 days after execution.  Parents have relied on these terms of stipulation and are now faces untenable financial burdens.   In my firm alone there are over 800 cases that have not been fully paid where the DOE has agreed to pay these parents months earlier.  Some cases have received partial payments, while others have received no payment.    

Given the course of conduct of the DOE this immediate prior school year, if we were to advise clients not to accept settlements and to proceed to impartial hearings the cost to the City would sky-rocket.  Not only does the city bear all of the administrative costs of the hearing, but when a parent is a prevailing party at a hearing the method of payment is governed by federal law and is paid within 30 days and parents are entitled to an award of reimbursement for their legal fees.   

It is imperative that the City Council be aware of what is happening to their constituents and the potential dangers if the DOE does not adhere to already entered into stipulations.  We ask that your members exert any influence your members may have on rectifying this matter.  

Thank you in advance for your consideration. 

Regina Skyer

Guidance Transfers

DOE Policy Change: “Guidance Transfers” are Now an Option

 by Ashley Barad

          Surely, anyone who has tried to seek options for transferring between New York City Schools knows that it is no easy feat. For more than a decade, the Department of Education has restricted transfers for students, granting them only in the case of serious safety risks, medical issues, or even extreme commutes. According to the DOE, limiting school transfers was meant to benefit students, since it would ensure a consistent academic environment for students from year to year.

           However, recent reports show that the barriers placed on school transfers have negative outcomes for students. Several students found themselves unable to switch out of violent schools if they could not prove themselves to be personal victims of violence, and others were forced to remain in specialized high schools whose limited course offerings no longer satisfied their changing interests.

          While there are certainly still restrictions in place, it will now be a little bit easier to switch your child’s school placements. Last Wednesday, the Panel for Educational Policy declared that parents can request a “guidance transfer” if their child “is not progressing or achieving academically or socially.” According to this policy, officials will be able to request and review evidence on a case-by-case basis, and district superintendents will approve transfers requested for academic accommodations.

Click Here to read the full article on Chalkbeat.