If you are the parent of a child diagnosed with diabetes, it is crucial to familiarize yourself with your child’s rights. Having a developmental disability is not a prerequisite for protection under the law. Individuals with recognized disabilities, including diabetes, have the same rights to access programs and facilities as their non-disabled counterparts. This right to equal opportunity extends to the classroom. Section 504 of the Rehabilitation Act of 1973 (“Section 504”), The Individuals with Disabilities Act (“IDEA”) and Title II of the Americans With Disabilities Act (“ADA”) all ensure that students with disabilities have an equal opportunity to participate and succeed in school. These laws also provide a legal remedy for those experiencing discrimination and who are not receiving a Free and Appropriate Public Education (“FAPE”).

Section 504 is a civil rights law that protects individuals from discrimination and entitles children diagnosed with disabilities that limit a major life activity, such as learning, to a FAPE designed to meet their individual educational needs as adequately as the needs of children without disabilities. However, “learning” is only one example of a major life activity which can be impacted by a disability. Even if your child has been diagnosed with Type 1 Diabetes but continues to excel academically, he or she may still be eligible for accommodations and qualify for protection under Section 504. School districts have responsibilities to address the needs of your child with diabetes and to make sure he or she can attend school safely.

Section 504, IDEA and the ADA all consider diabetes to be a disability; therefore, it is illegal for schools and day care centers to discriminate against children with diabetes. However, the IDEA is only applicable under certain circumstances, if there is an educational impact and the child needs special education services. First, a student may have a cognitive or emotional disability in addition to diabetes which qualifies him or her for special education services under the IDEA. Second, a student without a comorbid disability may nevertheless qualify for special education services under IDEA as having an “other health impairment.” For example, a child with diabetes may experience frequent episodes of hypoglycemia and/or hyperglycemia which significantly inhibit the ability to concentrate, access instruction or attend school. Third, complications from diabetes may result in excessive loss of instruction time, rendering a child eligible for special education services under IDEA.

Failure to qualify for special education services and an Individualized Education Program (“IEP”) under the IDEA does not mean a child with diabetes is not entitled to an individualized, written diabetes management plan which establishes the student’s medical needs and how the school will meet those needs. In addition, a student with diabetes should also seek to obtain a written plan developed pursuant to Section 504 (“504 Plan”) which establishes accommodations that a student with diabetes may need, such as permission to eat anywhere and anytime or carry a cell phone and use it in class, if needed. The 504 Plan can establish procedures and protocols to ensure that a student with diabetes can attend field trips and participate in athletics and extracurricular activities safely with appropriate assistance and supervision. Having a formalized 504 Plan will also ensure access to dispute resolution procedures should any issues arise. A school district remains responsible for providing a student with diabetes with a medically safe environment that offers the same educational opportunities enjoyed by peers even if the child is making meaningful progress academically. This includes providing the student with assistance with administering insulin and glucagon, checking blood glucose levels, and allowing the student to eat snacks during the school day. But a school district’s federal obligations to provide an equal opportunity to participate extend beyond the traditional school day and include non-academic and extracurricular activities as well. Thus, it is the responsibility of the school district to ensure that a child with diabetes has access to medical supplies and any necessary assistance not only at school but also on field trips, during extracurricular activities, and at after school clubs and sports.

If your child with diabetes attends a private or parochial school, these federal laws may not apply. Only schools that receive federal funding, or facilities considered open to the public, must reasonably accommodate the needs of children with diabetes. The standard applied to private non-religious schools, nurseries, day care centers, community based organizations, summer camps after school programs and special events is not the same as the standard to which public schools must adhere. Private schools that receive federal funds are only obligated to comply with minimal obligations such as the least restrictive environment mandate, comparable facilities requirement, and the requirement to provide an equal opportunity to participate in extracurricular activities. They must provide minor adjustments to accommodate students with disabilities. Thus, it is important to understand your child’s rights and to advocate effectively for them.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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Posted in New York Special Needs, Special Education Advocacy | Comments Off on Diabetes and 504 Plans
Tags: 504 plans, ADA, diabetes, FAPE, Individuals with Disabilities Education Improvement Act (“IDEA”)

By Marion M. Walsh, Esq.

This September, many parents have dropped their children off for the first time at college and are adjusting to a new type of parenting and advocacy.  For all parents, particularly parents of students with disabilities, the transition brings great pride, but also a significant amount of concern and worry. By taking careful steps, you can ensure that you remain an effective advocate in your new capacity.

The transition from youth to adulthood brings important legal changes that all parents must know how to navigate when continuing to advocate for your child.   When your child turns 18, absent a guardianship, he or she becomes an adult and important rights transfer.  Most states, including New York, set the age of majority at 18.  This transfer has significant legal consequences.  Absent a guardianship, which is generally not appropriate for a student attending college, an adult who is not incapacitated has the right to make educational, medical and most other decisions for himself.  So, for example, if your child decides not to seek accommodations for his or her disability, you must respect this right.

This does not mean you have no role in your child’s education, but your child is driving all decisions and you must know what to expect.   Once the student is 18 parents are no longer automatically part of the process or are even apprised of progress, unless the student chooses to include them.

As you move forward for the next year, you must keep in mind these important legal changes, particularly if your child has a disability.

Five Tips for Transitioning to the Advocate of a Young Adult

1. Assist Your Child in Advocating, but Do Not Act as the Primary Advocate.

Remember, you are no longer your child’s primary advocate.  The advocacy role must change to your child.  Thus, ensure that your student has all the information he or she needs to access needed accommodations or care. Make sure your student registers with the Office of Disabilities on campus.However, if your student chooses to not disclose a disability or seek accommodations, this represents his or her decision and you can no longer require him or her receive accommodations or services.  You should not call professors to ask for extra help for your child you cannot require your child to be hospitalized, even in a crisis, unless he or she is a danger to himself/herself or others.  Parents act as supporters but are no longer the primary decision makers for your child.

2. Understand Different Legal Obligations of College.

You must understand the different legal rights of individuals after leaving public school, as an important first step.   As most are aware, if your child has graduated or aged out of special education services,  Section 504 of the Rehabilitation Act and the Americans with Disabilities Act only protect students from discrimination, but do not require affirmative services.  If your child received special education services under the Individuals with Disabilities Education Act (IDEA),  these services only extend through the school year in which the child turns 21 or graduates  –  whichever comes sooner (although you do still retain parental rights to advocate for past services with your school district).

Significantly, after high school, colleges are no longer required to provide a FAPE.  The post secondary school is only required to provide appropriate academic adjustments as necessary to ensure that it does not discriminate on the basis of disability. The appropriate academic adjustments must be determined based on the student’s disability and individual needs.    Academic adjustments may include auxiliary aids and services, as well as modifications to academic requirements as necessary to ensure equal educational opportunity. In addition, the college does not have to make adjustments that would fundamentally alter the nature of a service, program, or activity, or that would result in an undue financial or administrative burden. A college does not have to provide personal attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature, such as tutoring and typing.

3. Ensure that Your Child Signs FERPA and HIPAA Authorizations. 

The Family Educational Rights and Privacy Act of 1974 (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protect privacy and require access to records.  These rights of access and privacy transfer to your student at 18 years of age.    FERPA rights transfer and a college will not send you records upon your request or speak to you unless your child has signed consent or another exception applies.   For example, if you can show the student is financially dependent with a tax return, the college has the obligation to share information with you.  Even with the consent, you will not automatically receive grades and records; you must request such records.  HIPAA rights transfer, and student consent will be required if the parties are seeking medical records from a physician or therapist.

Ensure that your child has signed FERPA and HIPAA waivers so you may obtain records and speak to school or hospital staff.  Make sure that you are familiar with the school’s policy.

4. Have Power of Attorney and Health Care Proxy Signed.

A Power of Attorney gives you the right to act on your child’s behalf in case your child becomes incapacitated.  This form represents an important tool to have when your child is in college and, in particular, if your child is living away from home.   In addition, it is best to have a Health Care Proxy and Advanced Directives signed as soon as possible, so that you can step in and make important medical or legal decisions, if your child becomes incapacitated at college.   Any adult must prepare for the unexpected.  You can talk to an experienced attorney about having your child sign a Power of Attorney, Health Care Proxy and Advanced Directives.

5. Remain an Involved Parent.

The transition to the parent of an adult does not mean that you cannot remain involved in your child’s life. Particularly if you are financially responsible, you have the right as a parent to set expectations and rules for how your child communicates and performs.  Parent weekends represent an important way to connect and you can join a parent networking group.  While it is unreasonable to expect direct communications with your child’s teachers, once you have the FERPA form signed, you may contact a dean about any concerns and ask for an appropriate amount of support or monitoring.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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Posted in New York Special Needs, Special Education Advocacy | Comments Off on Five Tips on Being a Successful Advocate for Your Child in College
Tags: age of majority, college, FAPE, FERPA, guardianship, HIPAA, section 504

By Marion Walsh, Esq.

The New York State Department of Education’s Office of State Review (“SRO”), which hears appeals of special education proceedings after an Impartial Hearing Officer (“IHO”) decision, has been out of compliance with federal mandates to issue timely decisions within 30 days, since April of 2012. This delay has impeded the right of many children with disabilities to a free appropriate public education. Some cases in our office, for example, have been pending with the SRO for two years, and we believe that the SRO must come into compliance with federal mandates immediately or at the very least, within one year.

NYSED Requests Compliance Agreement

On Wednesday, July 16, the United States Department of Education (“USDOE”) conducted a public hearing in Manhattan to hear comments from the public on a proposed Compliance Agreement to be entered into by the New York State Education Department (“NYSED”) and the USDOE. Specifically, NYSED has requested that the Department allow NYSED to enter into a Compliance Agreement to resolve its noncompliance within three years. NYSED has stated that it is not able to correct this noncompliance within one year due to the significant and unanticipated increase in the number of appeals of due process hearing decisions under the IDEA. In testimony on July 16th, NYSED also attributed the delay to the quality of Impartial Hearing Officers (“IHOs”) decisions.

NYSED’s Commissioner John B. King formally requested, in an April 9, 2014 letter, that the USDOE consider allowing NYSED to enter into the Compliance Agreement. Specifically, in the letter, NYSED acknowledged that the SRO was not in compliance with IDEA mandates and identified several reasons why the State is unable to come into compliance within one year, such as the number of NYSED identified current and proposed actions to bring NYSED into compliance with the 30-day timeline requirement within three years, such as hiring more staff members.

USDOE Sought Comment on Two Questions

At the public hearing, the USDOE panel asked the public to comment on two questions:

1. Can NYSED come into compliance within one year with the IDEA Part B requirement to issue within 30 days, unless a party requests and is granted a specific extension, a State-level independent decision in an appeal of a due process hearing officer’s decision (i.e., is compliance with this requirement not feasible until a future date beyond one year)

2. Will NYSED, within a period of no more than three years, be able to come into compliance with this IDEA Part B requirement (30 days for a State-level independent decision), and, if so, what provisions should be included in the Compliance Agreement to ensure that compliance is achieved as quickly as possible?

NYSED Must Come into Compliance within One Year

NYSED must come into compliance with the IDEA requirement to issue a decision within 30 days, within one year. All stakeholders who practice in the areas—school districts, parents, attorneys and IHOs– understand the importance of IDEA timelines. In enacting IDEA, Congress recognized that timeliness is central to the IDEA and a failure to meet its procedural deadlines can be tantamount to a denial of FAPE. The SRO should not be excused for non-compliance. The SRO’s delay causes a lack of predictability, trust and accountability of the process for all stakeholders. But most importantly, the delay causes unconscionable and irreparable harm to vulnerable children who have a limited time to receive a free appropriate public education. Due to the delay, many students lose their chance for appropriate placements. As one parent at the public hearing noted, “Justice delayed is justice denied.”

The SRO, which for 2013, has rendered approximately 238 decisions, has the ability to come into compliance with simple structural and practice changes. These changes could include:

• a schedule that sets clear, mandated expectations for the number of days available to review the record, the number of days to draft a decision and the number of days to issue it;
• a directive that dismissals do not require decisions and;
• a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs, as the fact-finders.

If USDOE Allows Compliance Agreement, Must be Strong and Vigilant Federal Oversight

If the USDOE approves a three year time window to allow the SRO come into compliance, it must exercise relentless oversight over NYSED and monitor practice changes. Among other things, the USDOE should include in its compliance agreement, provisions which:

• Ensure that the NYSED implements structural changes and policies to set clear expectations for the number of days taken to review the record, write a decision and issue a decision;
• Direct the SRO to examine its review practices and issue a directive that dismissals do not require decisions and a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs;
  
• Investigate claims of bias in favor of local educational agencies (“LEA’s”) and ensure that SRO decisions are impartial and sufficiently deferential to IHO fact-finding, as SRO practices and bias toward LEAs could be contributing to a greater number of appeals;
• Address student rights lost by the delay and direct NYSED to allow IHOs increased discretion to revise pendency standards so that if any SRO decision takes more than 30 days, the prior IHO decision may become final;
  
• Monitor and examine decisions and practice to ensure reasonable progress, with goals and benchmarks;
• Create an advisory panel of New York stakeholders including LEA representatives, parents, attorneys, advocates, eligible students and other stakeholders, to have input and assist with monitoring.

In short, the SRO delays are inexcusable and have impeded the rights of many children to a free appropriate public education. The USDOE must take immediate and appropriate steps to ensure that the SRO comes into compliance with IDEA mandates with all deliberate speed, and, if it considers a compliance agreement, it must ensure that it protects the rights of New York’s most vulnerable children.

There is still time to give input. The USDOE is accepting comments. Written testimony or public comments may be submitted until July 26, 2014 by email to:  OSEPnysedhearinginfo@ed.gov by mail (postmark by July 26, 2014) to Jocelyn Logan-Friend, United States Department of Education, Office of Special Education Programs, Potomac Plaza, Room 4132, 550 12th Street, S.W., Washington, D.C. 20202.  The USDOE notes that commenters will not receive acknowledgement of receipt of written testimony and your testimony will be part of the public record that may be obtained through the Freedom of Information Act as appropriate.

Posted in Special Education Advocacy | Comments Off on USDOE Hears Testimony on SRO Delays and Proposed Compliance Agreement
Tags: "SRO", FAPE, IHO, nysed, usdoe

The New York State Board of Regents is considering amendments to Part 200 Regulations which will effect how special education impartial hearings are conducted in  New York.  When parents of students with disabilities disagree with the placement or services for their child, they have the right to initiate a due process complaint for a  hearing, in front of a trained Impartial Hearing Officer (“IHO”).  As advocates for students with disabilities, we have concerns that that the Proposed Regulations make settlements more difficult and make the process of a hearing more cumbersome, particularly for pro se litigants.

The Proposed Regulations mandate pre-hearing conferences even in cases in which the parties inform the IHO that they are engaged in settlement discussions.   Even more significantly, this imposition of a pre-hearing conference has the potential to thwart the allocation of the burden of proof in New York State.   New York Education Law clearly places the burden of proving a free appropriate public education (“FAPE”) on the school district.  Parents initiating a complaint have the responsibility to frame the issues and the proposed problems.   However,  if the law now mandates a prehearing conference that requires the IHO to review the issues framed in the complaint and empowers him or her to modify the issues before the school district has meet its prima facie burden, this will interfere with the parents’ responsibilities in framing the issues and the school district’s in responding to it.  For example, in an impartial hearing request, suppose a parent claims that a school district denied her child a FAPE by failing to provide ABA services.  In the hearing, the school district would have the burden of proving that it offered a FAPE and that the child was receiving educational benefit from the existing program.  But it is possible that an IHO could “simplify” the issues and essentially override the burden of proof and frame the issues to simply to determine if the child needed ABA services to progress.  Legally this would be reversible error, but many parents cannot afford a costly appeal.

Thus, we recommend that parents and students advocate against the adoption of the Proposed Regulations. The Regents will make a final decision on SED’s latest attempt at their meeting on November 5 and 6.  It is important to get to the Regents prior to that meeting in any way possible but at least send/email your comments directly to them.  Individuals can go to http://www.regents.nysed.gov/members/ for contact information.  Here is a statement to consider sending to the Board of Regents:

I oppose the adoption of the proposed amendments to the Proposed Regulations on governing impartial hearings at this time, on prehearing conferences. I believe that they should be withdrawn for comprehensive review in light of the law’s principals which favor settlement and support pro se litigants.  I am particularly concerned that the proposed amendments could allow an Impartial Hearing Officer to frame the issues in a hearing in such a way as to thwart the proper allocation of the burden of proof in impartial hearings in New York.  Thus, I am respectfully requesting that the Board of Regents not adopt the proposed regulations on prehearing conferences at this time. Thank you for your consideration.

Posted in IEP, Special Education Advocacy | Comments Off on New Proposed Regulations Thwart Allocation of Burden of Proof in Impartial Hearings in New York
Tags: FAPE, free appropriate public education, IHO, impartial hearing officer, new york state board of regents, part 200 regulations, pre-hearing conferences, prima facie, students with disabilities

By Marion M. Walsh, Esq.

A little over thirty years ago, on June 8, 1982, the United States Supreme Court set forth the seminal standard for a free appropriate public education in  Board of Education v.  Rowley for students with disabilities.   In this case, the Supreme Court ruled that a school district provided a free appropriate public education (“FAPE”) to a child by providing an Individualized Education Program (“IEP”) “reasonably calculated” to produce educational benefit.  In the Second Circuit, which covers New York, Connecticut and Vermont, the courts have refined Rowley to require “meaningful educational benefit,” still a vague term, and look to evidence of passing grades and regular advancement from grade to grade as evidence of FAPE.  While courts will examine objective data, such as progress in standardized test scores,  Rowley does not deem this essential.

Few courts have questioned Rowley’s basic premise or updated the standard to comply with the mandates of the Individuals with Disabilities Education Improvement Act  (“IDEIA”) or the No Child Left Behind Act, both of which require scientifically-based research strategies in instruction and explicit evidence of progress in the general education curriculum for students with disabilities.   Rowley made sense in 1982, based on the statute it was interpreting, the Educational for All Handicapped Children Act of 1975, in an era when children with disabilities were systematically denied access to education and generally excluded from standardized assessments.  In the decision, Justice Rehnquest did not examine specific student achievement or test scores.  Clearly, in the thirty years since the Rowley decision, the educational landscape and the expectations on the methodology that school districts utilize has drastically changed.   NCLB requires data driven decisions and requires school districts to demonstrate progress for all subgroups of students, including students with disabilities, measured by a precise formula for “adequate yearly progress.”   Moreover, school districts must keep this data and chart individual student progress.

Courts have applied the Rowley standard universally to all cases, although the Rowley case involved the specific issue of whether a student with deafness, with above-average intelligence, who was doing well in a classroom required the additional service of a sign language interpreter.  The Court found that because the student was progressing, the school was not required to maximize her potential by having a sign language interpreter.   In many cases, the vague standard clearly harms students.   Most IDEIA cases indeed do not deal with parent claims that a school district must maximize potential, but rather with programs that have failed students, but which courts deem appropriate because the school district set forth an IEP that was “good enough.”  Parents know that passing grades are necessarily subjective, but grade inflation can be very difficult to prove.

In addition, Rowley discouraged courts from carefully reviewing and questioning educational methodology and substituting their judgment. For example, in Grim v. Rhinebeck Central School District, in 2003,  the United States District Court for the Southern District of New York ruled that the challenged IEPs were substantively inadequate because, among other reasons, they did not provide sufficient services to address the student’s decline in test scores from the preceding year. The Second Circuit, reversed this decision, based on Rowley, because the Impartial Hearing Officers and State Review Officer had held that the IEPs were appropriate.  The Second Circuit held that adopting expert opinion on dyslexia was inappropriate for a court reviewing administrative determinations under the IDEA.

Thus, based on the applicable legal standard set by the courts for FAPE, parents must be proactive at the CSE level to understand the IDEIA and ensure their child is making meaningful progress.   In conformance with the IDEIA, parents should expect and school districts should deliver:

• Scientifically-based instructional and positive behavioral support strategies;
• Training and professional development for staff targeted for a student’s disability;
• Supporting the use of assistive technology devices and services to maximize accessibility for students;
• Precise measurement and objective evidence of student progress and outcomes;
• Goals and objectives that are individualized, measurable and based on knowledge of a student’s abilities and scientifically-based, rather than vague and cookie- cutter;
• An examination of whether passing grades reflect students’ ability, as measured by careful attention to standardized test scores and student work product;
• Transition services designed to help students lead productive and independent adult lives, to the maximum extent possible.

When parents expect this level of progress and document, in a careful record, if it is not occurring under the IDEIA, the Rowley standard will eventually evolve. Due to the substantial deference standard used by the Second Circuit, Impartial Hearing Officers and the State Review Officer, rather than the federal courts, will be on the forefront of this evolution.

Indeed, the Rowley “reasonably calculated” standard does not serve school districts well either, particularly with the new annual professional performance review (“APPR”) model that New York State has required for teachers and principals, including special education teachers.  The adoption of a lackadaisical “C” standard actually encourages a lack of vigilance and attention to the details, training and monitoring needed to identify and serve students with disabilities, under the IDEIA.  Given the extensive resources that school  boards devote to providing special education services and to the instructional staff employed, high expectations and precise measurement of progress, will better serve students and ensure that school districts are effectively using their vast resources to identify student needs and to educate students.

Posted in Special Education Advocacy | Comments Off on Time for a Change to the Rowley Standard
Tags: board of education v. rowley, FAPE, free appropriate public education, IDEIA, IEP, Individualized Education Program, rosley standard

By Marion M. Walsh, Esq.

The beginning of college or other post-secondary school represents an exciting and emotional time for any parent, filled with great pride but also great concern.  For students with disabilities, the emotions are amplified, as many parents wonder if their children are sufficiently prepared and ready to succeed in college.

With careful attention to this transition, parents can act as partners with their children without usurping and controlling the process.   Parents should understand their legal rights and the rights of their children to help the process go smoothly.

Know Your Parental Rights to Receive Information
As a general rule, pursuant to the Family Education Rights and Privacy Act (“FERPA”), the right to access educational records transfers from parents to “eligible students” at age 18.  Many parents and even some colleges believe that this means that parents have no right to receive information or educational or records without student consent.  Many colleges, as a general practice, will not give parents information or educational records about their children.  However, if you claim your child as a dependent on your tax return, as most parents do for college students, FERPA allows your student’s college to release student records and information to you, whether or not your child consents. 34 CFR  §99(a)(8).

So if your student’s college resists providing information, let them know your child if financially dependent and, if necessary, you can provide your tax returns.

Encourage Your Child to Self-Advocate
Parents must help their children advocate for themselves. Ideally, students should have developed this skill in high school as part of transition services on their IEP, but many do not develop this skill by high school graduation. 

If your child has not developed the skill of self-advocacy, there is still time.  Your student must know his or her strengths and areas of need and understand his or her legal rights. You can ask your student’s advisor to work with your child to help him or her self-advocate and explain the importance.

How much should you advocate for your college student? Every student is different. For students with disabilities initially adjusting to college, some parental advocacy is appropriate to get students settled. But ultimately, your goal should be to ensure your child understands his or her legal rights and can advocate.

Understand Your College Student’s Rights
Although colleges and universities do not have to comply with the Individuals with Disabilities Education Act and develop IEPs or provide a free and appropriate public education, just about every institution must comply with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.   This means that they must offer equal opportunity and access to opportunities for students with disabilities, and offer programs and services on the same basis as to non-disabled students. Specifically, Section 504 of the Rehabilitation Act provides, in relevant part that, individuals with disabilities shall not “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” Students with disabilities are entitled to reasonable accommodations and services, but your child will have to initiate the request for accommodations or services and provide documentation.

Your student’s college should have a Disabilities Service Office and publish important information on student rights. The Office for Civil Rights has put together guidance written specifically for college students with disabilities and has also published important information on auxiliary aids and services.

Parents of High School Seniors

In a future entry, we will provide guidance for parents of students with disabilities in high school, preparing for college, to ensure your child is receiving appropriate transition services.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Understand Legal Rights to Assist Students with Disabilities Entering College
Tags: college, FAPE, transition, transition services

If you are the parent of a child with special needs and are sending your child to private school because your public school district denied your child a free and appropriate public education (“FAPE”), you have the right to seek tuition reimbursement or even prospective payment from your public school district, pursuant to the Individuals with Disabilities Education Improvement Act. This constitutes an important right for students who have been denied a FAPE.  But the process is not simple.  To prevail in a tuition reimbursement claim: 1) The District must fail in its burden to prove that it offered or provided the student a FAPE; 2) The parents must prove that the private school is appropriate to meet the student’s special education needs; and 3) Equitable considerations must support the parents’ claim.

As to this latter requirement, parents must, among other things, provide school districts written notice, 10 business days before removing the child from the public school, that they are rejecting the public placement and seeking tuition reimbursement. This means, that at the latest, parents must send this letter 10 business days before the start of the school year.  If parents fail to provide this notice, the right to reimbursement may be reduced or denied.

The 10 day deadline is fast approaching.  Because most public schools in the New York area start on September 5, 2012, parents should be sure to get their letter in by Tuesday, August 21, 2012.  If your school district starts on Tuesday, your letter must be in by Monday, August 20.   If you are considering a tuition reimbursement claim and need help deciphering the process, do not hesitate to call our office for an initial consultation.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Don’t Forget the Ten Day Notice Rule if Considering Tuition Reimbursement Claim
Tags: FAPE, IDEA, individuals with disabilities education improvement act, Tuition Reimbursement claim

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

https://www.specialneedsnewyork.com/special-education-advocacy/.

Posted in IEP, New York Special Needs, Special Education Advocacy | Comments Off on How Does this Recent Court Case Shed Light on My Child’s Ability to obtain a Free Education at a Specialized Institution
Tags: Board of Ed. of the Garrison Union Free School District v. Greek Archdiocese Institute of St. Basil, education, Education Law §3202, FAPE, new york state, PUBLIC SCHOOLS, special education