The Office of Special Education, which is part of the Department of Education, found that New York State “needs assistance” and failed to adjudicate hearings in a timely fashion. Only 84.25 percent were adjudicated per the requirements in a timely manner. The proposed amendments would address six procedural concerns to improve the impartial hearings:

1. Appointment and certification of impartial hearing officers (IHO)

IHOs would have their certification rescinded if they do not accept an appointment within a two-year time period unless good cause can be shown. IHOs would be prohibited to take an appointment if they were in a pending, due process complaint with the same school district, are an attorney or an attorney for the same school district, or provide special education advocacy.

2. Consolidate multiple due process requests for the same student

The amendment would create procedures to consolidate multiple hearing requests.

3. Prehearing conferences would be conducted on all due process requests starting July 1, 2012

This prehearing order would help to address procedural matters and define the factual issues that will be adjudicated at the hearing. This will help to expedite the hearing and render more efficient decisions.

4. Requests for withdrawals of due process hearings

This amendment would create procedures to withdraw a due process complaint and require notice to the IHO if done after the hearing begins.

5. Timeline extensions for an impartial hearing decision

IHOs could not extend decisions due to their own schedule conflicts, nor could they grant an extension after the date the record is closed. The amendment does allow one 30-day extension and requires the IHO to provide the facts for granting the extension.

6. Decision timelines

Decisions are to be made within 45 days. Efficient hearing decisions will help to uphold a child’s educational needs and well-being. This will also help cut down on costs to districts.

People who want to learn more about the amendments and how it could affect their child’s education should contact a New York special education advocate. The P-12 Education Committee is accepting public comments on these amendments through early spring. Littman Krooks’ special education attorneys help individuals obtain the education and special services they need and deserve. To learn more about our special education advocacy services  visit http://www.littmankrooks.com.

Liu said special education vendors were not recruited fast enough and utilized more. Expensive independent consultants instead were paid for in some circumstances, the audit noted. Discrepancies also existed in different burroughs of New York. Only 20 percent of special ed preschoolers in the Bronx’s Soundview section and 26 percent in East New York, Brooklyn received required services. This is in stark contrast to 91 percent of Brooklyn Crown Heights preschoolers and 86 percent of Ridgewood and Middle Village, Queens preschoolers receiving services.

What can be done to ensure your child gets the appropriate special education services:

• Meet with a special education lawyer to create an Individualized Education Plan
• Locate and secure enrollment in the right educational environment
• Obtain and maintain other educational and therapeutic services
• Stay updated on local, state, and federal laws for special education rights

Parents are concerned about their children with special needs that have been referred for support services but have not received the educational and other services they deserve. Families with a child with special needs deserve an advocate on their side to protect the rights of their child. To learn more about New York special education advocacy or New York special needs planning, visit http://www.littmankrooks.com or http://www.specialneedsnewyork.com

The Regents committee asserts that the previous diploma was misleading as the students with disabilities did not complete the same state exams as other highschoolers. One of four different documents could be given to graduates who complete some high school courses but do not achieve all the academic requirements. State officials say that these changes will recognize individual capacities better.

Student advocates are not in favor of the new “Skills and Achievement Commencement Credentials”. They are worried that this change will lower the progress being made to raise student achievement. This could also potentially affect how students with disabilities are being assessed during job applications and interviews, college placement, and other opportunities.

Concerned individuals should meet with a special education advocate to understand how these changes could affect your child. They can review that your child’s special education needs are being met and that services are enabling them to be as independent as possible.

To learn more about New York special needs planning or New York special education advocacy, visit http://www.littmankrooks.com or http://www.specialneedsnewyork.com.

Our guest blogger this week is Sarah Wieselthier, a third-year law student at the Maurice A. Deane School of Law at Hofstra University and a candidate to earn her J.D. in May 2012.  Sarah serves as an Articles Editor for the Hofstra Law Review and is interested in pursuing a career in education law.  Sarah can be reached at swieselthier@gmail.com.

While charter schools are celebrated for their ability to improve student outcomes through innovative curricula and instructional approaches, many have been accused of missing the mark when it comes to educating students with disabilities.  Despite being free from the regulation and oversight thought to plague traditional public schools, charter schools are still required to comply with the Individuals with Disabilities Education Improvement Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”), and the Americans with Disabilities Act (“ADA”).  However, charter schools throughout the country have been accused of violating these federal laws that protect students with special needs.  Parents of students with disabilities have asserted that certain charter schools have succumbed to the discriminatory practices of: denying enrollment to students with disabilities, counseling students with disabilities to leave their school, failing to identify and evaluate students with potential special needs, failing to implement IEP’s and provide the necessary special education and related services, and failing to discipline students with disabilities in compliance with federal law.

In most cases, the charter school has not sought to violate the laws protecting students with disabilities, but rather it does not have the resources to provide these students with appropriate special education and related services.  Charter schools face significant challenges in balancing their mission to achieve academic success through creative and flexible teaching methods against complying with rigid federal disability laws.  No matter the underlying reason, the rights afforded to students with special needs by the IDEA, Section 504, and the ADA are being violated; these students are not receiving an “appropriate” education as required by law.

No court has weighed in on what it means for a charter school to achieve the appropriate balance of complying with its mission and obeying the IDEA, Section 504, and the ADA.  The few lawsuits alleging discrimination by charter schools have ended in settlements and without a decision on the merits.  In Scaggs v. New York State Department of Education, No. 06-CV-0799 (JFB)(VV), 2007 U.S. Dist. LEXIS 35860 (E.D.N.Y. May 16, 2007), students with disabilities alleged equal protection, IDEA, Section 504, and ADA violations against charter schools in New York.  A settlement was reached in which each plaintiff individually received sums ranging from $1,000-$18,000.

A settlement was also reached in United States v. Nobel Learning Communities, Inc., 676 F. Supp. 2d 379 (E.D. Pa. 2009).  In Nobel Learning Communities, students with disabilities attending schools operated by Nobel Learning Communities (“NLC”) charter school network alleged discriminatory practices in violation of the ADA and its implementing regulations.  Specifically, it was argued that NLC engaged in the discriminatory practice of failing to enroll or dis enrolling students with disabilities from its schools.  The federal district court dismissed the allegations of discrimination at NLC’s day care, elementary, and secondary schools because there were no facts creating a reasonable inference of a discriminatory policy.  However, the cause of action against NLC’s preschools survived a motion to dismiss.  The remaining allegations were that NLC’s preschools violated the ADA and its implementing regulations by instituting a policy to exclude, remove, or otherwise discriminate against children with disabilities from NLC programs and acted on the policy by excluding, removing, or otherwise discriminating against children with disabilities.  In January 2011, the Department of Justice entered into a settlement agreement with NLC, where NLC agreed, among other things, to adopt and implement a formal non-discrimination policy, make reasonable modifications to programs and services when necessary to afford its programs and services to students with disabilities, appoint an ADA compliance officer, and pay $215,000 to the children referred to in the lawsuit.  A summary of the settlement terms can be found on the Department of Justice’s website at http://www.justice.gov/opa/pr/2011/January/11-crt-051.html.

There is currently an ongoing class action lawsuit in the Eastern District of Louisiana alleging violations of the IDEA and the ADA by both charter schools and traditional public schools in New Orleans, Louisiana.  The case is P.B. v. Pastorek, No. 2:10-cv-04049 (E.D. La. Oct. 26, 2010).  Eight of the ten named students in the class alleged discrimination and noncompliance by public charter schools.  The alleged violations include failure to identify and evaluate students with suspected disabilities, failure to provide necessary special education and accommodations, failure to implement IEPs, and failure to discipline students in compliance with the law.  The complaint survived a motion to dismiss in April 2011.  News and developments regarding the litigation can be found on the Southern Poverty Law Center’s website at http://www.splcenter.org/get-informed/case-docket/new-orleans-special-education.  If a decision is reached on the merits of this case, it would be the first time a federal court establishes a charter school’s obligations when educating students with disabilities and reconciles the tension between charter school philosophy and the federal special education and civil rights laws.

Special education will continue to be one of the key challenges facing charter schools in the future.  The rigid and rigorous standards of the IDEA, Section 504, and the ADA are in congruent with the flexible and innovative structure of charter schools, making compliance a challenge.  A decision on the merits in P.B. v. Pastorek would provide guidance to both charter schools and students with disabilities and their parents about what is required of a charter school when educating students with disabilities, clarifying how a charter school can stay true to its mission and be in compliance with the laws.

-          Consider the qualifications of the individual (i.e., teaching assistant or teacher aide) that would be necessary to meet the needs of the student (http://www.highered.nysed.gov/tcert/career/tavsta.html )

-          Establish a plan to monitor the student’s progress towards the goals to be addressed by the assignment of the one-to-one aide and the student’s continuing need for the one-to-one aide;

-          Consider a plan for progressively reducing the support provided to the student and his or her dependence on an aide over time;

-          Plan for substitutes to serve as the student’s one-to-one aide to cover staff absences in order to ensure the student receives the recommended IEP services of the one-to-one aide; and

-          Ensure that the one-to-one aide has access to a copy of the student’s IEP, has been informed of his or her responsibilities for IEP implementation for the student and has received the professional development and supervision necessary to carry out these responsibilities.

Attached are three sample forms that, when used together, will assist and guide CPSEs and CSEs in their consideration of a student’s need for a one-to-one aide:

-          One-to-One Aide Planning: Considerations and Recommendations

-          Checklist to Determine the Student’s Needs as They May Relate to the Need for a One-to-One Aide

-          Considerations for Need for a One-to-One Aide: Available Natural and Other Supports for the Student’s Schedule

Questions regarding this memorandum may be directed to the Special Education Policy Unit at (518)473-2878 or your Special Education Quality Assurance Regional Associate at one of the following Regional Offices:

Central Region                        (315) 476-5081
Eastern Region                       (518) 486-6366
Hudson Valley Region           (518) 473-1185
Long Island Region                 (631) 884-8530
New York City                         (718) 722-4544
Western Region                      (585) 344-2002
Non-district Unit                      (518) 473-1185

A goal for all students with disabilities is to promote and maximize independence. CPSEs/CSEs are accountable for developing and implementing individualized education programs (IEPs) that endorse such independence. When deciding that a student needs a one-to-one aide, it should always be considered a time-limited recommendation and specific conditions/goals must be established to fade the use of the one-to-one aide.

One-to-one aides may not be used as a substitute for certified, qualified teachers for an individual student or as a substitute for an appropriately developed and implemented behavioral intervention plan or as the primary staff member responsible for implementation of a behavioral intervention plan. While a teaching assistant may assist in related instructional work, primary instruction MUST be provided to the student by a certified teacher(s). A teacher aide may assist in the implementation of a behavioral intervention plan, but may not provide instructional services to a student (http://www.highered.nysed.gov/tcert/career/tavsta.html).

To read more about the considerations for determining if a student needs a one-to-one aide, visit our blog and click here.  To read more about the Roles and Responsibilities of the One-to-One Aide, click here.

The new FERPA rules do allow information to be used more widely without breaking any federal privacy laws. The updated regulations clarify how student information may be disclosed, and that the data must be properly protected and only accessed when absolutely necessary. Schools must make parents aware through public notice and give them the right to opt out of directory information. Upholding student privacy helps to avoid identity theft, discrimination, and other criminal acts while balancing the need to improve the educational system.

FERPA does apply to special education students and those receiving services through the Individuals with Disabilities Education Act (IDEA). IDEA regulations work in tandem with FERPA to uphold additional protections and confidentiality concerns for children with special needs and their families. Likewise, public notice must be given regarding personal information, its storage, disclosure to outside parties, and destruction of records. The Office of Special Education Programs and the Family Policy Compliance Office, along the Education Department, work together to interpret regulations to resolve any conflicts. The privacy rights of students are protected via FERPA and IDEA to ensure that IDEA requirements are met.

Littman Krooks LLP assists families to understand the laws that govern special education and access educational resources they need for their child with special needs. Our New York City, White Plains and Fishkill special education attorneys counsel clients on improving their child’s future and empowering them to succeed. To learn more about New York special education advocacy, visit http://www.littmankrooks.com/special-education-advocacy/.

Also included are early education programs and parenting education. Interested families can contact the New York State Department of Health, Family and Community Health division for more information. New York’s programs are in coordination with federal efforts to improve services for families and children.

An experienced special needs attorney can also assist a family with a child with special needs. From educational resources to government benefits and health care needs, a New York special needs attorney can help improve a child and family’s wellbeing. They can inform a family of all their options and plan a path for a better future.

Littman Krooks LLP assists families with state and federal benefits and comprehensive estate planning. Our New York City, White Plains and Fishkill special needs lawyers counsel clients on improving their child’s future and empowering them to succeed. To learn more, visit http://www.littmankrooks.com/special-needs-planning/.

• Public benefits programs (SSI, SSDI, Medicare, Medicaid);
• Taxes and special needs trusts;
• Payment of recreation, transportation and medical costs;
• Housing subsidies;
• Duties of a trustee.

The book was revised, updated and expanded in 2010 to cover all 50 states.

Why did you write Special Needs Trusts: A Guide for Trustees?

Barbara: We are a group of lawyers who were meeting regularly to discuss issues in our practices. As the parent of a young adult with developmental disabilities and over 30 years of experience writing and managing special needs trusts, I knew that a trust was an important piece of planning for the future because it can assure a good quality of life beyond government benefits. My colleagues were also serving families that included a person with a disability. Special needs trusts were often on our agenda. Some clients didn’t understand what to do with the trusts they had been given to manage for their disabled family members. Others were afraid to spend any money for fear of getting into trouble with the government. One client just put the money in the bank under her own name. We decided to write an instruction letter of 8-10 pages for trustees, but there was so much we thought trustees should know. The project became The Special Needs Trust Administration Manual in 2004. Then, in 2010, it was updated to cover and apply to all 50 states.

Do people need a lawyer for a special needs trust?

Barbara: You need a lawyer to write the trust. It helps to have a lawyer at every stage of the process. Folks need to remember that someone—a relative, friend or client—is depending on them to run the trust properly and look after their interests. Often people with disabilities have very little—just an SSI check and Medicaid insurance. They are completely dependent on these benefits and can’t afford to lose them. For public benefit reasons, it’s essential to have an attorney in the state where you are running the trust; there can be subtle differences in the way these programs are managed in each state and even in different regions within the state. It’s best to have a local person who knows the ins-and-outs for your geographic area.

For more information about Managing a Special Needs Trust: a Guide for Trustees, visit www.disabilitiesbooks.com.

Littman Krooks LLP counsels individuals and families to plan for their health care wishes and financial matters as part of a comprehensive estate plan. Our New York City, White Plains and Fishkill estate planning attorneys and elder law attorneys are accomplished in asset preservation, trusts, and government benefits.