education | Littman Krooks, LLP
(914) 684-2100
Home  |  Our Firm  |  Attorneys  |  Staff  |  Blog  |  Contact  |  Employment  |  Directions

Special Education Waiver Update: 2015-2016

May 13th, 2015

By Stacy Sadove, Esq.

Advocates and parents eagerly awaited the passage of the 2015-2016 New York State Budget. In particular, the budget proposed many changes with regard to education– through the Education, Labor & Family Assistance Bill. The modified budget passed shortly before 3am on April 1, 2015.

A proposed special education waiver remained of particular concern to parents and was the topic of much debate during the passage of the 2015-2016 budget. The proposal would have allowed school districts, approved private schools, or boards of cooperative educational services (BOCES) to seek waivers from important protections contained in N.Y. Educ. Law §§ 4403 and 4403 and New York Regulations, but which are not included in the Individuals with Disabilities Education Act. The waiver would have allowed for the above educational agencies to submit waivers from special education requirements for a specific school year and provided for 60 days for the parents of students being affected to submit comments (S.2006/A.3006, Part A). The new budget did not include this proposal. Thus school districts cannot seek a waiver from protections in New York Law, which are not provided in the IDEA.Littman Krooks Special Education Advocacy

Moreover, the budget addressed the establishment of regional tuition rates for special education itinerant services (SEITS) based on average actual costs, over a four-year period (S.2006/A.3005, Part A). This proposal was adopted. SEIT services allow special education teachers to assist preschool students with disabilities in preschool general education classrooms. These important services allow for social and academic inclusion as well as education in the least restrictive environment. The new budget will establish a set rate for SEIT providers per region. Rates will be determined in the next year. The question remains whether the rates will take into account high quality services so that services may be provided by qualified preschool teachers.

Furthermore, in controversial new measures, the new budget sets new standards for evaluating teacher performance. Teachers must complete 100 hours of continuing education and recertify every five years or could lose their licenses. Also, the budget will implement a redesigned teacher evaluation system whereby teachers are rated in two categories, student performance and teacher observations. With regard to student performance, schools employ a standardized state measure, or may choose to use a state-designed supplemental assessment. With regard to teacher observation, teachers will be observed by principal observations and independent observations. Moreover, with regard to teacher tenure, new rules will provide that tenure is based on performance and is not simply a function of time. The budget extends the probationary period to a minimum of four years with no automatic right to tenure at any point. A teacher will have to receive ratings of effective or highly effective in at least three of four years to be eligible to receive tenure. If a teacher does not meet this threshold, he or she can be terminated or the district may extend the probationary period. As further incentive for performance, school districts may award a bonus of up to $20,000 to teachers who are top performers, and promotion opportunities will be tied to the evaluation system. For ineffective or poorly rated teacher, a new expedited removal procedure will be put in place

Finally, a portion of the budget also passing addressed failing schools in New York State. The proposal with regard to failing schools, sought to authorize the Commissioner of Education to a categorize a school district as failing (one that has scored in the lowest 2.5 percent of school districts statewide, when compared to other districts based on student achievement and performance on state assessments, graduation rates and drop-out rates) and appoint a receiver to create and enact a plan to improve student achievement (S.2010/A.3010, Part A). The proposal did not ultimately pass as originally proposed, and the final budget modified it, so that that schools identified under the state’s accountability system to be in the lowest five percent of public schools for at least three consecutive school years will be categorized as “failing” and have two years to institute an intervention model/comprehensive ed. plan. Those that have been identified to be among the lowest achieving public schools in the state for 10 consecutive school years will be deemed as “persistently failing” and have one year to institute such a plan.

As the new budget is implemented in the next year, we will see what changes ultimately affect special education services and placement of students in failing schools. On the education front, the current budget raised state aid to schools by $1.4 billion to $23.5 billion dollars. With careful attention and implementation, these changes should positively affect students in New York State schools to provide them with additional services and better access to a free and appropriate education. For more information regarding the new budget please see the following link:



Learn more about our special needs planning and special education advocacy services at or

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.








Understand the Emphasis on State-Standardized Testing and What Parents Can Do

April 16th, 2015

Littman Krooks special needsBy Nicole Garcia, MS.Ed., Educational Advocate

In New York, this week, students in grades 3-8 will take their English Language Arts and Math. As the testing season begins, the routine of school changes. The introduction of the Common Core State Standards (CCSS) has created even angst and frustration.   Governor Cuomo’s new accountability measures for teachers have created even more pressure for teachers and principals. Many parents believe that there exists too much emphasis on state testing. To help you navigate issues surrounding state testing for your child, we have provided some background.

The No Child Left Behind Act

In January 2002, President George W. Bush signed into law the No Child Left Behind Act of 2001 (NCLB), which represented a re-authorization of the Elementary and Secondary Education Act of 1965 (“ESEA”). NCLB required all states to develop assessments tests in basic skills to receive federal funds. School districts must administer assessments to all students (on selected grade levels) or risk losing federal funding. NCLB expanded the federal role in public education and increased accountability for teachers and schools. Students must be tested in science at least one grade in elementary, middle and high school. Depending on which state, testing occurs from February through April. NCLB is overdue for re-authorization (since 2007) and Secretary Duncan has proposed a blueprint, but Congress has not reauthorized the law yet.

New York Adopted Common Core State Standards as NCLB Assessments

Every state, including New York, has put in place testing and standards in core subjects to comply with NCLB requirements.  For ELA and math, New York, like most other states, adopted the CCSS in 2010 and first implemented the CCSS exams—as the NCLB assessments– in the Spring of 2013.   The CCSS aspire to create a “common core of standards that are internationally benchmarked, aligned with work and post-secondary education expectations, and inclusive of the higher order skills that students need…”   Essentially, the tests are aligned to prepare students for the skills measured by the ACT and SAT and prepare them for a globally competitive marketplace. Yet, in New York, students had to take the CCSS with little preparation and most teachers did not receive training, the first year that the tests were given. Only 33% of students in New York State achieved proficiency.

Supporters of the CCCS assessments believe the test provides a measure of accountability for what goes on in the classroom, as well as greater rigor. The more rigorous standards help students meet basic proficiency levels and to achieve skills to become “college and career ready.” Supporters also believe teachers will perform to ensure that children will be prepared and score well on the state test.

But many parents and educators have been highly critical of the exams.   They have observed that scores do not convey additional portions of the curriculum and do not include measurement of progress in enrichment programs. Critics contend that the tests do not measure whether a student is learning critical thinking skills or how engaged students are in the learning process.  Teachers have little time for other subjects. Recent accountability measures for teachers have exacerbated this pressure. Also, many parents are concerned that teachers “teach to the test” and must necessarily eliminate enriching opportunities and creative lessons from the curriculum.  More information about the CCSS can be found on the New York State Education Department website.

Most School Accountability Measures Have Been Waived in New York

In the past, schools and school districts that did not show students making adequate yearly progress (“AYP”) toward achieving proficiency could be subject to federal sanctions (e.g., offering school choice, loss of federal funds, possible complete restructuring of the school, or closing the school). In 2012, President Obama waived most of these sanctions for approximately 32 states, including New York. Yet each state still holds schools accountable for results. Test scores provide an indication of how students are performing and are reported by State Department of Education to compare groups of students from year to year.

New York State Alternative Assessment

Children with the most severe cognitive disabilities, as set forth in their Individualized Education Programs (IEPS), may take alternate assessments. In New York, students with alternate assessments on their IEP take the New York State Alternate Assessment (NYSAA). Students with severe cognitive disabilities may demonstrate their performance toward achieving the New York State P-12 CCSS in English language arts and mathematics on the NYSAA.

The Committee on Special Education (CSE) for each student will determine eligibility for participation in the NYSAA. Only a very small percentage of students should take alternative assessments. More information about NYSAA is available on the state education website at:

What Can Parents Do?

  1. Know when and what testing will be offered. Don’t ignore the obvious step of understanding when and what testing your child will be taking. Testing begins this week in New York in Grades 3-8. School calendars should indicate when the tests are administered. In grades 3-8, each child will take the English Language Arts (ELA) and Mathematics assessments. Children will also take Science and Social Studies assessments, in fourth and fifth grades and may again take it in eighth grade. Speak with your teacher in the beginning of the year to find out.
  1. Reassure your child to prevent stress.   Parents should keep their children calm and prevent any stress and anxiety.   The CCCS assessments should not be a primary or major factor in any promotion decisions, so parents should reassure their children.
  1. In the fall, ask for an information session on the test and the results from the prior year. Because New York State does not release the results of assessments to school districts and parents until the following school year, many parents may forget to follow up. When you receive the assessment results, ask the school principal to hold an information session about the test and the results. Parents may misunderstand the purpose of these assessments and how to read the results. An educator would be able to clarify in “parent terms” what the results mean. Once parents are given clarity about the assessments, they may have a better understanding of their child’s strengths and areas of need.
  1. Become educated on the assessments and support available. Parents should reach out to their child’s teacher to find out if he or she will be offering extra support for testing. This may include more homework or staying after school. The parent can correspond by email and sending a letter to school, or leaving a message for the teacher with the office. Parents can find out if their child is entitled to Academic Intervention Services (AIS). AIS is designed to help students achieve the learning standards in ELA and mathematics and supplements the general curriculum. AIS can be given throughout the day or after school. New York State has provided Guidance  on cut scores to school districts on when they must offer AIS services, since most students in New York State are not yet proficient on the CCCS. Parents should also become educated on the goals of the assessments and support the skills measured by the CCSS. Guidance for parents and families on the CCCS is available.
  1. Consider whether your child should opt out of testing. Today, more parents are considering this option.  School districts discourage opting out, as schools must show a certain level of participation on the exams or could risk state funding and educators are concerned about the lack of assessment data.   Parents should work with their local PTA/PTSA to find out information on removing their child from state testing. Review carefully the pros and cons of opting out. Many advocacy groups have set forth information on opting out.


Learn more about our special needs planning and special education advocacy services at or

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here.



Response to Intervention Program Helps Students Keep Up in the Classroom

July 10th, 2013

An educational program known as Response to Intervention, which screens students to determine whether they need additional instruction, is gaining momentum in school districts throughout the country. The state of New York began requiring school districts to use the program last year. This is how the program works.

In New York, the Response to Intervention (RtI) program is designed to measure students’ progress and provide them with assistance, particularly in the areas of math and reading. The program is used to address achievement gaps for all students, including students with disabilities.

In the RtI process, students receive additional instruction tailored to their individual needs through a system with multiple tiers of intensity. Students’ progress is monitored to determine whether additional intervention is needed to help them learn.

The process begins with screening, which is a brief assessment that is conducted for all students, to determine whether they possess appropriate skills for their grade level. This part of the process takes place between one and three times per year. Based on the results of this screening, the school may decide that additional instruction is needed for a particular student, in which case the student’s parents are notified.

In the general education classroom, teachers use research-based teaching methods that are varied according to individual students’ learning styles. For students who have been identified as needing additional support, the teacher will provide targeted instruction in the specific areas where the individual student needs help. There are three tiers of support within most RtI models, and this additional targeted focus within the general education classroom is the first tier.

The second tier of additional instruction may be provided in a separate classroom where students can be taught in small groups and have additional opportunities to practice the skills they are learning. This instruction is sometimes provided by a math or reading specialist. In the third intervention tier, students may receive more frequent and longer small group instruction, which may employ teaching materials specifically tailored to the skills the student is experiencing difficulty with.

The level of intervention that a student needs is determined by a team made up of the student’s teachers, parents, and school staff such as a math or reading specialist or a school psychologist. Student progress is monitored as frequently as once per week, and parents are provided with frequent updates.

If a student does not respond as expected to additional instruction, further evaluation is needed. When the school believes that a child may have a disability, it will seek the student’s parent’s consent to conduct an evaluation to determine whether special education services are needed. A parent may also request special education services if he or she believes the student has a disability.

New York education officials have said that many schools already had a similar process in place, but a systematic approach can help more students. The program is also meant to provide appropriate instruction for individual students. In the past, teachers may have confused a learning gap with a disability, when what is actually needed is more intensive, targeted instruction.

For more information about legal services for individuals with special needs, visit


How Does this Recent Court Case Shed Light on My Child’s Ability to obtain a Free Education at a Specialized Institution

April 2nd, 2012

An important New York Court of Appeals case recently determined that a school district cannot be forced to pay for an education if the child is a non-resident of the school district. In Board of Ed. of the Garrison Union Free School District v. Greek Archdiocese Institute of St. Basil, the St. Basil Academy had tried to enroll 26 students tuition free. The academy is a residential institution where children reside because of various issues involving the inability of children to remain in their homes.  Although the children reside at the residential facility, the school does not have legal guardianship of its residents.

Thus, the appeals court ruled that simply because the children lived there did not qualify them as being residents of the district. State education laws, including Education Law §3202, show that residency is established by where the parents or legal guardians live.  The court case established that local school districts are not responsible for absorbing the cost of the tuition for the children living in these types of institutions.

Furthermore, “…a license to operate a child care institution does not change the residence of the children living there.” That said, the court did explain that school districts are required to pay for education for students who are placed in orphanages by a state or family court judge. St. Basil’s residents are mainly referred to the educational institution by Greek Orthodox priests, the court noted.

A child’s last permanent residence, not a temporary foster placement residence, is what sets their school district eligibility. This recent case follows previous case law in New York whereby public schools are free to resident students and non-residents must pay tuition.

For assistance with questions regarding your child’s special education needs visit our website at

New York City Office
1325 Avenue of The Americas,
15th Floor
New York, NY 10019
(212) 490-2020 Phone
(212) 490-2990 Fax
Westchester Office
800 Westchester Ave
Rye Brook, NY 10573
(914) 684-2100 Phone
(914) 684-9865 Fax
Attorney Advertising | New York Estate Planning | New York Elder Law | Website by SEO | Law Firm™, an Adviatech Company
This article does not constitute legal advice and should not be relied upon. If you need legal advice concerning this or any other topic please contact our offices to schedule a consultation with one of our attorneys at 914-684-2100 or 212-490-2020.