de Blasio

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.

•    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.

•    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. 

Follow Up Re: Mayor's Policy

Many of you have been emailing and calling asking for an update on the Mayor’s June 24th Policy Memorandum on Special Education Settlements.  Well, here’s the news hot off the press: on August 14th the DOE’s Office of General Counsel held a meeting with lawyers and advocates practicing in this area.  The important “take aways” from this meeting are as follows:


1.       The DOE will absolutely continue to litigate cases where they believe a student has been offered a free appropriate public education (“FAPE”). This is the same as it has always been.


2.      The biggest change will be that when we file our Notices of Unilateral Placement (this year they are being filed on August 20th) the DOE will consider settlement only under the following conditions:


a.       The parent prevailed in a prior year at an impartial hearing, and the DOE did not appeal this decision and it concerned the same placement;

b.      There was a settlement the prior year for the same placement and circumstances;

c.       When a student is entering a “terminal grade in a school” that the DOE has previously funded (good for all you 8th graders at Gaynor, and seniors at MMFS, WP, RLS, EH, Windward, etc.)


3.      The changes in the payment process when the DOE does recommend settlement should be the most dramatic change.  When the DOE agrees to settle a case they will finalize the settlement/negotiation process within 90 days of making a determination to settle a case and begin to pay out on these cases 30 days after this.  This will help most parents who find themselves in a difficult cash flow position.


4.      For students first entering the DOE/CSE system, and for those turning five students leaving CPSE and entering CSE, nothing has changed.  The new policy will not effect your case this year.  Accordingly, we will file Notices for you on August 20th and between September and November we will file hearing requests.  For this group of students settlement offers will only be made after the filing of an impartial hearing request.


5.  Any notice that was filed earlier than August 20th, meaning for our 12 month students, this policy will not apply.  Hearing requests must be filed and our offices will do these between September 4th through 11th. The good news is that once the hearing request is filed 12 month students will be considered under the expedited settlement process.


               Your team at Skyer Law has been meeting continuously about this new policy.  Our decision is to write extremely detailed notices, giving the DOE enough information to push them towards a settlement.  This year’s notices are akin to any hearing request filed in years past.  We are filing these notices on August 20th and we’ll update you again as soon as there’s more information.


               Enjoy these last hazy, crazy days of summer –   Regina and Company