For kids, late August means morning playdates in the sprinklers, ice cream cones for afternoon snack, and later bedtimes. For parents, this time of year signals back to school preparation. And for those parents whose children have special education needs, that prep extends well beyond a trip to the office supply store. Instead, many of you have been forced to find a private school placement and independent services for your children, and you spend the dog days of summer awaiting news on whether the DOE will settle your subsequent tuition reimbursement claim.
Here at Skyer Law, we are working diligently to help you obtain the highest tuition reimbursement amount possible for this upcoming school year. On Monday, August 22nd, we will be filing close to 1,000 notices with the Department of Education, in accordance with the statutory deadline. Each notice informs the DOE of a student’s placement in private school, and instructs that reimbursement for the program’s 2016-2017 tuition will be sought unless the department provides a remedy in the form of an appropriate public school placement, and Individualized Education Plan by the start of the school year.
Although our ultimate goal is to avoid costly and stressful litigation, we draft each notice as though the case will proceed to hearing. By doing this, we are preparing the foundation for negotiating the maximum tuition reimbursement settlement amount possible for each client. In the notice, we detail the substantive and procedural errors in the CSE process, and IEP document; identify specifically how the recommended program does not provide an educational benefit to your child; and outline why the offered school placement is inappropriate.
In theory, the DOE has ten business days to officially address the presented issues, though parents who have been through this process in previous school years, can attest to that not being the practice. However; according to the mayor’s policy, the DOE has been directed to inform our firm of their decision to settle a case, or move forward with litigation, within 15 days of receipt of the notice. The moment we receive the DOE’s written response, your case manager, or the paralegal assigned to your case, will reach out to you with next steps. Please note: If your child has a 12-month IEP, your notice was filed in June.
Still A Tale of Two Cities
Despite Mayor de Blasio’s 2014 policy to fast track tuition reimbursement cases, delays persist. As Skyer Law senior partner, Jesse Cutler, pointed out in a recent interview with the online education news organization, Chalkbeat, “There are cases that have definitely not met the timeline the mayor set forth.”
In our representation of more than 1,000 clients a year, comprising students with a wide spread of special education needs, we see firsthand the financial, and emotional, strain that this drawn-out process places on families.
We advocate aggressively on each client’s behalf, and will continue to voice our concerns to both the mayor and the comptroller. We encourage you to do the same, and invite you to read the entire Chalkbeat article.
Transgender Student Guidelines
Applying Special Ed Law to Transgender Student Discrimination
While it is incredibly important to stress that transgender status is in no way a disability, there is certainly an overlapping need to advocate on behalf of both transgender students and those with special education needs in order to ensure a safe academic environment.
In fact, according to a survey conducted by the national Human Rights Campaign organization, 78% of transgender students report harassment in school, 31% report physical assault, and 12% report sexual violence. Moreover, 32% of transgender students report having experienced harassment from a teacher.
Here, within Skyer Law, we have also seen a steady uptick in complaints of bullying of transgender students. In these instances, we employ the same zealous client advocacy – for those with special education needs, or those dealing with gender identity issues – whose academic development has been impacted by this type of negative and inappropriate school environment.
The NYC Department of Education does provide Transgender Student Guidelines which include directives that students participate in gender-segregated activities with their self-identified peers, and utilize the rest room and locker room facility that aligns with their gender identity. In addition, the policy advises that students are called by the name and pronoun corresponding to their gender identity, and requires that schools take steps to ensure that a student’s transgender status remains confidential if so requested. Of course, as with all DOE policies, these directives are only effective if properly implemented by the school administration and adhered to by each member of school staff.
The national Gay, Lesbian & Straight Education Network (GLSEN) has created a “Model District Policy on Transgender and Gender Nonconforming Students,” which outlines best practices for districts to employ when adopting school regulations. We continue to advocate that the DOE utilize GLSEN’s policy, with is designed around the principle that all students have a right to be treated in a manner consistent with their gender identity, to make their own guidelines more robust and implemented universally.
Again, it is important to remember that a student’s gender identity, expression, or sexual orientation does not equate to a special education need. However, if your child is dealing with any of these circumstances, they too have a right to a safe school environment, and many of the special education legal principles that Skyer Law attorneys have successfully employed for over 20 years can be applied when advocating on their behalf.
SCOTUS and Special Education
Court Asked to Define Educational Benefit Standard
As the Supreme Court wraps up its current term, it is determining whether to hear a special education case in its upcoming term, which will begin October. The case in question, Endrew F. v. Douglas County School District, is of particular relevance to our families, as it deals with defining what constitutes a free appropriate public education (FAPE) under the Individuals with Disability Education Act (IDEA).
In the 1982 seminal special education case, Board of Education v. Rowley, the Supreme Court held that in order for a school district to meet its obligation to provide FAPE under the IDEA, the student’s program must be reasonably calculated to confer an educational benefit. The Court intentionally left the legal standard for “educational benefit” undefined, and since then, 11 of the federal court of appeals circuits have issued divided rulings regarding that standard.
Four of the federal districts, including New York’s 2nd Circuit, and Colorado’s 10th Circuit, which has jurisdiction over the Endrew F. case, apply an extremely low standard, ruling that the program need only confer a “just-above-trivial” benefit. Another four circuits also apply the “just-above-trivial” benefit, but do not expressly reject a higher standard. As opposed to this very low bar, two circuits require a school district to offer an educational program that can provide a “substantial educational benefit,” while one circuit applies different standards internally.
The attorneys representing the student in the Endrew F. v. Douglas County School District, are asking the Supreme Court to define the legal standard to determine if a program has conferred an educational benefit. The Court has invited the U.S. Solicitor General to file a brief on behalf of the United States to help determine if it should hear the case.
The attorneys at Skyer Law make it a practice of staying abreast of both New York state, as well as federal, trends pertaining to special education law. We strongly want the Supreme Court to hear this case, as we are certain its doing so will benefit our clients. We will continuously monitor the progress of this pending case, and keep you updated on the progress.
Skyer Law Senior Partner and Mayor de Blasio Discuss Reimbursement Delays
As part of our continued commitment to advocate aggressively on behalf of our clients, this week senior partner, Jesse Cutler, spoke with Mayor Bill de Blasio regarding the ongoing delay parents are facing in the DOE settlement process, as a number of agreements await Comptroller review and approval.
Jesse, who is respected within the administration as a leading expert in the special education legal field, informed the mayor of the back log that is occurring within the comptroller’s office. He further stressed that these delays are contrary to the mayor’s own 2014 policy initiative to streamline the settlement process.
Upon learning about the issue, Mayor de Blasio reaffirmed his commitment to expedite tuition reimbursements for families of students whose special education needs have not been met by the City.
Our staff continues to regularly follow-up on behalf of each client whose settlement agreement is awaiting review and approval in the comptroller’s office. We also urge that parents continue to reach out to the comptroller’s office directly at (212) 669-3916 to insist upon a status of your child’s case.