Touring School Placement Offers

Image: An empty elementary school classroom with desks, a white board, and posters on the walls. 

You’ve had your IEP meeting, and now you are waiting patiently for your placement offer from the Department of Education.

If your child is receiving special education services for the first time, a school placement offer must come within 60 school days of when you provided consent to evaluate your child. If your child is already receiving special education services and you have had an annual IEP review meeting, it will simply arrive sometime before the first day of school.

But if the placement offer doesn’t arrive with enough time for a parent to arrange a visit to tour the proposed placement, or if no placement letter arrives at all, or if the placement site refuses to allow you to tour—share this with your attorney or advocate. Some Impartial Hearing Officers view a district’s refusal to allow a parent to observe a proposed placement as evidence that it is not appropriate.

But let’s assume that the placement offer arrives with plenty of time to schedule a visit and that the site is welcoming and happy to accommodate a tour. You grab a notebook and a pen and head out the door for the visit with an open mind—but what are you there to observe exactly?

First, let’s talk about what you see. The person conducting the tour may have a route in mind that will no doubt include the classroom, but you should also ask to see (as applicable):

·         All spaces your child will be educated in (for ST, OT, PT, and any other pull-out related services and specials like art, gym, music, etc.)

·         Nursing and counseling offices

·         The hallways during the transition between classes

·         The cafeteria during lunch time

·         The playground at recess

·         Arrival/Dismissal (or you can do this on your own standing outside the school)

What observations you make note of and what specific questions you ask will necessarily be tailored to the unique needs of your child and the type of program you are touring. We’ve put together a list of general questions to give you some ideas.

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·         Can my child’s IEP be implemented at this site? Does the school offer the class type/ratio listed on your child’s IEP? Can the school offer the related services your child is mandated for (number of sessions per week, correct length of sessions, group vs individual sessions, push-in vs pull-out)? Can the school serve all the health and physical management needs listed on your child’s IEP?

·         Is the staffing appropriate? Is the staff trained to accommodate your child’s communication, health, behavior, and safety needs? If there is more than one teacher, are both teachers there all day? What role do classroom paras play? Is there special education support during ‘specials,’ like music or art? Who will be with your child during lunch and recess, for bathroom trips, to and from the bus, and between classes?

·         Is the peer group appropriate? Enrollment obviously changes a little from year to year, but based on the current peer group: What are the behavior management needs in the classroom and how are they managed? What is the age range? Where is the class academically in terms of math and reading? How many students have IEPs? How many students total? What classifications do children in the class have? How many children are verbal? What behavioral or social expectations will your child have to meet to be successful in this class? Will your child have access to other kids who make sense as learning peers?

·         Is the physical classroom space appropriate? Is the classroom large enough to accommodate the students and children comfortably and safely? Is there light? Is there a sensory break space? Are there appropriate seating and work spaces for your child? Where is the bathroom in relation to the classroom? What kinds of toys, books, puzzles, and other materials are in the classroom and do they make sense for your child’s level of functioning? What physical modifications are made for children with adaptive, sensory, and physical differences? If 1:1 related services are provided in the classroom, where does that take place?

·         What other settings will my child be educated in? If related services are pull-out, are those rooms appropriate (noise, equipment, etc.)? Will your child be able to get adaptive physical education or regular PE outdoors or in a gymnasium, and how many other children will be using that space when your child is there? If your child moves between classrooms for different subjects, where are those rooms in the building and does someone accompany your child? Will your child be using elevators and stairwells? How many students are in the halls between classes?

·         What methodology and modifications are used in the classroom? Is there a specific methodology the teacher uses? How does the teacher modify curriculum or organize the classroom to support the students?

·         What common spaces will my child use and how? How big is the school? How many students are in the building in total? What is the age range of the students in the building? Where will your child eat snacks and meals, how will they get there, and who will supervise them? If there is a cafeteria, how many other students eat at the same time? Where is bus line-up and how is that managed? Where is recess, how is it supervised, and how many other students will have recess with your child?

·         Are there safety concerns? What is the school’s safety record (injuries, elopement, etc.)? How many exits does the building have and how are they secured? How are halls, stairwells, closets, elevators, windows, etc. supervised and secured? How are allergies managed?

·         Is the school accessible? Can your child physically navigate this environment as independently as they are capable of?

·         What are the inclusion opportunities?  For self-contained placements, what opportunities are there for your child to interact with mainstreamed peers? Will your child participate in all school functions, extra-curricular opportunities, and school trips?

·         How far from my home is the school and how long will it take my child to get here?

After you have toured, you will need to decide if you want to accept the district’s placement offer. If you decide to reject it, you should consult with your attorney or advocate about your next steps.

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.

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

What is Pendency?

[5/22/2020 – This article has been updated in light of recent caselaw on this topic.]

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 does not guarantee a specific school, classroom, or teacher, just the type of program.

• In some cases you can use your pendency entitlement for a different school or provider, but not always.

• 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, when you “withdraw,” or choose to end, your case, 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 final 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.

Parents don’t have the right to take this pendency entitlement and move it to a different school, even if that same school is similar to the original program, unless that first program is no longer available to the child. Moving pendency to a different school or provider requires demonstrating to a hearing officer that the new program is “substantially similar” to the original one.

Even when you have your pendency entitlement in place, this does not mean you’re done with your case. 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.

There is no requirement that a private school wait for funding from the school district, which can take time to be paid out. You can still be required to pay tuition on the school’s schedule. Your pendency entitlement would then be in the form of tuition reimbursement for the portion of the year that the lawsuit is open and pending.

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.