For many families, one of the most challenging aspects of the pandemic has been ensuring that their children continue to receive the education they need. This has especially been the case for parents of children with disabilities. Initially, many service providers closed due to the stay-at-home orders. Since these facilities have started to reopen, staff, parents and children continually need to adjust to the new learning environment.

Across the country, states and individual school districts have taken wildly different approaches to education during the pandemic. For many families, remote-learning has become the new norm. Shifting from in-person education to remote-learning can present difficulties for parents of children with disabilities. Below are a few tips parents can use to help them navigate the new educational landscape.

• Adjust Expectations – For students with an IEP, the IEP remains effective regardless of whether they are enrolled in virtual learning. However, certain services provided for in the IEP may no longer be available. Additionally, some students may be dealing with a greater achievement gap given the sudden shift to online learning toward the end of last year’s academic year. Parents should not hesitate to address these changes, and can set up an IEP meeting to discuss their child’s goals and progress with educators.
• Focus on Friends – Over the past few months, ensuring that a child gets the appropriate amount of social interaction has been a challenge. While it may have initially been tempting to wait until it is safe to go out and socialize freely, there is no real estimate of when that will be. Thus, parents should be sure to set aside time for their children to socialize. Of course, while being mindful of the health risks of close contact.
• Be Available – Children must adjust to the new learning environment, even more so than parents. Thus, parents will benefit from setting aside time early on in the school year to ensure that their children understand how remote-learning works and what is expected of them.
• Maintain a Schedule – Children, especially those with disabilities, need consistency. If a student knows that they will be logging on to school every day at 10 a.m., they will eventually become used to the routine, making it easier on the parents and child. When setting up a schedule, it is important to be realistic. For example, a child cannot sit in front of a computer for eight hours at a time and remain productive. Instead, consider allowing children to take frequent short breaks and let them determine how they spend their break time (just as they would at recess).
• Stay Positive – It may help to remember that parents, students and educators are all in this together. This is a challenging time for most families who are relying on distance-learning. And while remote-learning for a child with a disability may raise additional hurdles, they can be overcome with patience and support.
• Know Your Rights – Schools must still provide all the necessary services during the pandemic. Earlier this year, school districts struggled with how to provide the necessary support for students with special needs while ensuring a safe environment. That said, over the past few months, significant changes have been made. However, if a school is not meeting its requirements under the Individuals with Disabilities in Education Act, families should reach out to a special education advocate to go over their options.

Is Your Child’s School Not Providing the Necessary Support?

If you believe that your child’s school is not providing your child with the education that they need, deserve and are entitled to, contact one of the knowledgeable special education advocates at Littman Krooks, LLP. While the COVID-19 pandemic has impacted the way in which many services are provided, schools are still required to comply with a student’s needs as laid out in their IEP.

The dedicated team of special education attorneys at Littman Krooks, LLP, have a comprehensive understanding of the educational requirements as they pertain to students with special needs. Our lawyers use their advanced knowledge to ensure that every student gets the education they need and deserve. At Littman Krooks, we have been helping New York families for over 30 years. Our knowledgeable New York special education attorneys can be reached 914-684-2100. You can also contact us at https://www.littmankrooks.com/.

Posted in Autism, IEP, New York Special Needs, Special Education Advocacy | Comments Off on Tips for Parents on How to Adapt to a Special Education Remote-Learning Environment
Tags: IEP, remote-learning environment

The U.S. Supreme Court is deciding whether to grant review in a case about the degree of educational benefit that a special education student should receive under an Individualized Education Program (IEP) to satisfy the requirements of the (IDEA). “Clearly, the Supreme Court should hear this important case, as the requirement that a student receive an educational benefit goes to the heart of the IDEA,” says Marion Walsh.  Millions of children around the country certain are entitled to more than “some” educational benefit in public schools and the law should, at a minimum, require meaningful educational benefit.

On May 31, 2016, the U.S. Supreme Court asked the Solicitor General to file a brief expressing the views of the United States on this question.

The plaintiffs in the case Endrew F. v. Douglas County School District RE-1 note  that currently the “courts of appeal are in disarray” on the matter of what constitutes a “free, appropriate public education,” as required for students with disabilities by IDEA.

The U.S. Court of Appeals for the 10th Circuit ruled that Endrew F., a Colorado student with autism, received a free, appropriate public education from the Douglas County school district because he received “some educational benefit,” and the court thus rejected reimbursement to the parents for the cost of private school. Reasoning that the IDEA is only “designed to provide a floor” of educational quality,  the hearing officer determined that the school district had provided Drew with a FAPE.  The parents had removed their son from public school after a dispute over the education he received under his IEP in the fifth grade.

In its decision, the appeals court acknowledged that other U.S. courts of appeal have adopted the higher standard of requiring an IEP to deliver a “meaningful educational benefit.” “The U.S. Court of Appeals for the Second Circuit requires this standards and it should be applied uniformly across the country. The standard is still too low,” says Walsh. In requesting review by the Supreme Court, attorneys for Endrew F. argue that the Court should make use of the case to resolve the dispute over this salient issue.

As it has done with many IDEA cases that seem to present an important question, the Supreme Court asked the U.S. Solicitor General to weigh in. The Solicitor General is under no deadline to file the requested brief, and observers say it is unlikely that a response will be filed before the court adjourns for the summer.

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

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here or sign up for our monthly newsletter.

Posted in Special Education Advocacy | Comments Off on Special Education Case Seeks Supreme Court Review
Tags: Endrew F. v. Douglas County School District, IDEA, IEP, individuals with disabilities education act

New York City special education students and their parents should be aware of a potential disclosure of student records for the purpose of a class action lawsuit.

The potential disclosure may affect students who had an Individualized Education Program (IEP) prepared between 2003 and 2016 by the New York City Department of Education (DOE), and either attended a state-approved non-public school or were diagnosed or classified as autistic.

The student records are covered by a confidentiality agreement and would only be disclosed to the parties to the lawsuit, their attorneys, experts and the court.

The plaintiffs in the lawsuit, M.G. v. NYC DOE, are children with disabilities (and their parents) who attended State-approved non-public schools or were diagnosed or classified as autistic and claim that certain DOE policies violated the Individuals with Disabilities Education Act by preventing them from receiving special education services.

Parents who object to the disclosure of their children’s records may file an objection form by August 7, 2016 requesting that protected personal information be removed from those students’ records before they are released. Objecting to disclosure will not affect any rights that students and parents may have under the lawsuit or in relation to the DOE.

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

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here or sign up for our monthly newsletter.

Posted in Autism, IEP, New York Special Needs, Special Education Advocacy | Comments Off on Potential Disclosure of Records Impacts Students with Special Needs
Tags: autism, IEP, M.G. v. NYC DOE, NYC DOE, special education students

To learn more about both the effects of bullying and mental health and what you can do, you are invited to a seminar on May 10, 2016:  Understanding the Legal Obligations of a School District Regarding Bullying and Student Mental Health

By Marion M. Walsh, Esq.

Every parent and school professional must be aware of the mental health crisis confronting our youth and take steps to understand and advocate. Parents and schools must act together to protect children become educated on risk factors and symptoms.

If your child has a mental health issue, it is important to understand how to seek community supports and to understand the legal obligations of your school district.  Too many parents view mental health issues as a “private issue” or believe that things will improve. It is almost impossible for parents to handle mental health issues alone.

Signs of Mental Health Problems in Children:

Parents must be aware of signs of mental illness. Early identification is key to help children.  The Mayo Clinic and other professionals list the following signs of mental illness in children, but the list is not exhaustive:

• Mood changes: Look for feelings of sadness or withdrawal that last at least two weeks or severe mood swings that cause problems in relationships at home or school. Some students simply withdraw. School avoidance or physical symptoms without physical causes can also be a sign of mental distress.
• Intense feelings: Be aware of feelings of overwhelming fear for no reason — sometimes with a racing heart or fast breathing — or worries or fears intense enough to interfere with daily activities.
• Behavior changes: Look for drastic changes in behavior or personality, as well as dangerous or out-of-control behavior. Fighting frequently or expressing a desire to hurt others also are warning signs.
• Difficulty concentrating: Look for signs of trouble focusing or sitting still, both of which might lead to poor performance in school.
• Unexplained weight loss: A sudden loss of appetite, frequent vomiting or use of laxatives might indicate an eating disorder.
• Physical harm: Sometimes a mental health condition leads to suicidal thoughts or actual attempts at self-harm or suicide.
• Substance abuse: Some children use drugs or alcohol to try to cope with their feelings.

School District Legal Obligations to Help:

If a child is showing signs of mental illness, it is important for parents to understand school district legal obligations and also how to get community support.   Not every child with mental health issues has a disability but if a condition affects educational performance, the school district has an obligation to refer a student for special education and related services.

• Pursuant to the Individuals with Disabilities Education Improvement Act (IDEA), 20 USC §1400, seq. and parallel state law, school districts have a responsibility to identify and provide appropriate services to students with disabilities, including those who have an emotional disturbance or disability, including another health impairment, such as ADHD.
• As the Supreme Court noted in Honig v. Doe in 1988, “Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975).”  

If your child has mental health needs impacting education, you should refer your child for special education services and, if the child has a disability, he or she should qualify for an IEP and receive special education supports, such as counseling, flexibility with assignments, or a therapeutic environment. Some children with mental health needs may need building level help or need accommodations under Section 504 of the Rehabilitation Act.  

Steps to Take:

On a broader scale,  work with your school district and community to develop a task force to create systems and policies to proactively address student mental health needs and make sure interventions are in place.  Talk to your child’s school district administrators about making mental health and social emotional health a priority in your school district and ask about what programs are in place to ensure children are served.   Much training is available and many organizations have resources to help.

As just three examples of what you can do:

1. Become Certified in Youth Mental Health First Aid
2. Consider taking the Sandy Hook Promise, which encourages safer schools and more mental health treatment.
3.  Attend a screening of No Letting Go, on mental health and youth and one family’s story, aimed at helping to end the stigma:

Read more on how to educate, advocate and support mental health awareness month by clicking here.

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

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here or sign up for our monthly newsletter.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Signs of Mental Health Problems In Children
Tags: adhd, anxiety, depression, IEP, may is mental health awareness month, mental health awareness, ptsd

The New York State Education Department has published guidelines on testing accommodations for students with disabilities.

In order for students with disabilities to participate equitably in state and local assessments, changes in testing procedures are necessary. However, in September 2015, the Common Core Task Force formed by Gov. Cuomo received reports from special education teachers and parents stating that many special education students were not receiving the testing accommodations specified in their individualized education programs (IEPs). The Task Force therefore recommended that formal guidance be issued to districts to ensure that students get the testing modifications they need.

The Department of Education guidelines state that the Section 504 Multidisciplinary Team or the Committee on Special Education must identify and document the testing conditions needed by each student, in the student’s IEP or 504 plan. The guidelines provide that all students with disabilities, including students taking the New York State Alternate Assessment, should have testing modifications recommended as appropriate.

In order to recommend the appropriate changes to the testing procedures, the guidelines state that committee members, including students and parents, should be aware of the purpose of the test being administered, the rationale for the necessity of testing accommodations, and what kinds of modifications are available and how they are administered.

The Education Department guidelines make clear that each teacher and provider must be informed of the need for testing changes and their responsibilities in implementing the recommendations in the student’s 504 plan or IEP. They further state that if a school fails to provide needed modifications, a student’s test score may be invalidated.

Parents can learn more about testing accommodations at the Education Department’s Office of Special Education.

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

Was this article of interest to you? If so, please LIKE our Facebook Page by clicking here or sign up for our monthly newsletter.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Updated Testing Accomodations For Students With Disabilities
Tags: 504 plan, IEP, testing accommodations for students with disabilities and special needs

Children with special needs often struggle with executive functions. For parents whose children face these challenges, it is important to understand what executive functions are, the common warning signs of problems with them, and how learning specialists can help children who face this difficulty.

Executive functions are cognitive processes that control other cognitive processes, connecting past experience with present action. Executive functions are crucial to children’s daily activities like dressing themselves or doing chores, and difficulty with executive functions will especially impact a child’s schoolwork. We all use executive functions for such actions as making plans, keeping track of time, making corrections while thinking, reading or writing, and engaging in group discussions. Executive functioning is what permits us to keep track of more than one thing at a time, holding on to information until it is appropriate or useful for it to be applied.

Children who struggle with executive functions will often seem to be disorganized. Thy may have trouble planning projects and have little understanding of how long they may take. These children may have trouble memorizing information, and when telling a story may have trouble keeping events in sequential order. In addition, a child may have problems with working memory, for instance being unable to remember a phone number while dialing it. There is no one test to identify problems with executive functioning. Educators, psychologists and others may use a variety of methods to identify such problems, including careful observation, tests and trial teaching.

If a difficulty with executive functions has been identified, there are many learning tools that educators and parents can share with children to help them with organizational skills.

Four Learning Tools Available:

• Checklists: One tool that helps with executive functions is using a checklist. If a child has trouble conceiving of or keeping track of the steps necessary to accomplish a complex task, then a checklist can be a tremendous help. Instead of struggling to understand what step should be done next, a child can simply move through the list. Checklists can be useful at school or with the tasks of daily living, such as getting ready for school in the morning. It can be especially helpful to set time limits for each task on a checklist, as children with executive dysfunction will often not be able to judge how much time each step should take.

• Calendars and Plans: Because struggling with executive functions make planning difficult, it is all the more essential for children to be introduced to the importance of writing down a plan. Frequent use of a calendar and writing down homework assignments are habits that should be encouraged, and that will take time and energy.

• Encouragement: Children who find organization challenging often do not understand why being organized is important and may become frustrated with planning. However, encouragement and repetition can help children develop these skills, and establishing a reward system can help them see the benefits.

• Routines: Developing a routine is also important for children with executive function problems. Doing homework at the same time every day is an especially useful routine, especially with older children who may prefer to do homework when they feel like it. This leads to procrastination and problems with the work. A child who has trouble planning and getting organized may not see that putting off a task will have bad results, and encouraging a routine is one way to help.

Difficulty with executive functions is a common problem for children with special needs, but if the challenge is identified and addressed, then there is a lot that parents and teachers can do to help. If you believe your child’s executive functioning difficulty is becoming debilitating, be sure to discuss this with his or her teacher or section 504 or IEP team and document concerns in writing.

For more information about our legal services for families with special needs, visit www.specialneedsnewyork.com.

Posted in New York Special Needs | Comments Off on How to Help Children Who Have Difficulty with Executive Functions
Tags: asd, autism spectrum disorder, disabilities, exectutive functioning, IEP, special needs

Children with autism spectrum disorders often receive support in school through special education, school psychologists and other services, and parents are usually closely involved in helping to develop their child’s treatment plan and following up to make sure that treatment is as effective as possible.

Once a child with autism turns 18, the situation changes. Although an adult with autism may benefit from continued treatment, and parents may be funding that treatment, parents will not necessarily have the same access to their adult child’s treatment providers, and thus cannot play the same role. In addition, it can be an important step for a young adult with autism to begin playing more of a role in directing his or her own treatment. However, this can often be a struggle.

For students on an individualized education program (IEP) in high school, there is a legal requirement that a plan be developed to help the student transition into adulthood. Research has shown that the more students can be encouraged to develop self-determination, the more they will be able to participate in their own IEP and transition plan. This transition into self-direction of his or her own treatment will serve the student well as a young adult.

One difficulty that is often encountered with young adults receiving treatment for autism is lack of coordination among multiple service providers. When the young adult was a child, his or her parents or school counselors may have worked to ensure that different types of treatment fit into a cohesive treatment plan. As an adult, it is important for a person with autism to understand, as much as possible, the goals of treatment and be able to judge whether or not various treatment options are meeting those goals. Needless to say, each young adult with autism has different capabilities, but the if parents work with their child toward self-determination during the teenage years, then the person will be more able to participate in his or her own treatment as an adult.

For more information about our legal services for people with special needs, visit www.specialneedsnewyork.com.

Posted in New York Special Needs | Comments Off on How Adults with Autism Can Manage Their Own Treatment Plan
Tags: adults with autism, IEP, self advocacy, special education, transition

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 Walsh, Esq.

The United States Court of Appeals for the Second Circuit, in R.E. on behalf of J.E. v. New York City Department of Education, has set an important precedent for parents in tuition reimbursement cases, under the Individuals with Disabilities Education Improvement Act (“IDEIA”).  The Second Circuit ruled that in evaluating an Individualized Education Program (“IEP”) for a student with a disability, courts and administrative officers must examine an IEP prospectively as of the time of its creation. The decision clarified that courts and administrative officers must not consider retrospective testimony, from a school district on how it would have implemented the program to modify or correct deficiencies in the IEP.

Before this decision, the permissibility of retrospective testimony on IEPs represented an open question in the Second Circuit. Although the decision had mixed results for the parents and students involved, on the whole, the decision represents an important legal victory for parents.

This decision actually involved the appeals of three parents on behalf of their children with autism, in tuition reimbursement cases.   As background, under the IDEIA, parents may reject an IEP that they believe is inappropriate, place their child in an appropriate private school and then seek tuition reimbursement from the school district, under the well-known Burlington–Carter standard.  The Second Circuit decided the appeals in tandem due to common questions of law.   In each case, the respective Impartial Hearing Officers initially granted the parents reimbursement and the New York State Review Officer (“SRO”) reversed all three cases. In each case, the SRO relied on testimony from the school district about the educational program that the student would have received if he or she had attended public school.  The parents all challenged the reliance on this “retrospective” testimony.  From the parents’ perspective, in order to make an informed decision about the IEP, they had to have sufficient information at the time of its creation.

In contrast, in the three cases, under the New York City Department of Education’s view, the court noted that a school district could create an IEP that was materially defective, cause the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington Carter hearing with evidence that would essentially fix or amend the IEP and add testimony on what services would have been applied.  The court found that by requiring school districts to create appropriate IEPs at the outset, the IDEIA prevents a school district from fixing a deficient IEP after the fact.

The Second Circuit declined to adopt the strict “four corners” rule which would prohibit any testimony beyond the face of the IEP.  For example, the court noted that a school district could introduce evidence explaining how a 6:1:1 teacher ratio would operate but could not introduce evidence that modified the staffing ratio. Specifically, the court stated:

Although we decline to adapt a four corners rule, we hold that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.

The Second Circuit did note that during the Resolution process, after parents request a due process hearing, school districts do have the opportunity to amend or correct deficiencies in the IEP.  The court stated that a school district that inadvertently or in good faith omitted a required service could cure that deficiency during the resolution period once it receives a due process complaint.

Second Circuit Application of Rule to Students Involved

In deciding the three (3) cases, and applying the retrospective testimony rule, the Second Circuit reached the following results in the three cases:

In R.K., the court found that the Department had failed to provide a FAPE, as there was consensus that the student needed an ABA program and speech and language and occupational therapy.  The court found that the IEP offered no dedicated aide and no guarantee of ABA therapy.  The Second Circuit found that the SRO should not have relied on extensive testimony from the teacher who would have taught the student on the planned provision of ABA services. Because the court also found the private placement appropriate, it affirmed the judgment of the district court awarding full tuition reimbursement.

However, in R.E., the court found that the Department of Education had offered a free appropriate public education (“FAPE”) to the student because the IEP was substantively appropriate, despite its omission of a functional behavioral assessment and parent training. In that case, due to the student’s needs, the Second Circuit did not find that these violations deprived the student of a FAPE and reversed the district court award for tuition reimbursement. Similarly, in E.Z.-L, the court concluded that the Department of Education’s proposed placement was substantively appropriate. Although the Department’s testimony on parent training was inappropriate, the court held that the omission of parent training on the IEP did not alone establish the denial of FAPE, as parent training was available at the proposed placement. Thus the Court affirmed the district court ruling that the student was not denied a FAPE.

What the Decision Means for Parents

Parents in tuition reimbursement cases always face an uphill battle.  But the decision provides needed clarity on the appropriate use of retrospective testimony.   Parents of children with disabilities facing a decision on whether to remove their child from public school are entitled to rely on an IEP as written and not be blindsided at a hearing by testimony on corrections or additional services that a child would have received.   In addition, the decision should prompt parents to demand more specificity on IEPs as to what services, programs and methodology will be provided.

Of course, the Second Circuit decision leaves many open questions.  Future litigation will have to determine where courts draw the line between testimony that explains an IEP and testimony that rehabilitates a deficient IEP.  In addition, the Second Circuit’s emphasis on the importance of the resolution period to allow school districts to amend deficient IEPs is perplexing and could be prejudicial to parents, as by this period, parents would already have already unilaterally placed their child.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Second Circuit Rules that School Districts Cannot Use Retrospective Testimony to Rehabilitate Defective IEPs
Tags: burlington-carter, IDEIA, IEP, impartial hearing officers, nys, second circuit, Second Circuit Rules that School Districts Cannot Use Retrospective Testimony to Rehabilitate Defective IEPs

by Marion Walsh, Esq.

On August 1, 2012, Governor Cuomo signed a Bill which amends New York Education Law 4402 to no longer require an additional parent member for Committee on Special Education (“CSE”) meetings. Before this amendment, New York law required for every CSE meeting (although not for subcommittee meetings), the participation of an additional parent member of a child with a disability residing in the school district or a neighboring school district.

The amended law provides, as with the current law on requesting a physician, that an additional parent member only must be in attendance at any CSE meeting if requested in writing by the parent (or personal in parental relation) to the student, at least 72 hours prior to each meeting.  The school district must provide the parents with written notice of their right to have an additional parent member attend any meeting of the CSE. The notice must include a statement, created by the New York State Education Department explaining the role of having the additional parent attend the meeting.

The amendment goes into effect immediately, but there will be some transition time, until the former law phases out and until the New York State Education Department amends the Part 200 Regulations and issues guidance for school districts.

Effect of New Law on Parent Rights

The Individuals with Disabilities Education Improvement Act does not require parent members as part of an IEP team.  The amended law does not impair the rights of parents, as parents still have the right to request a parent member. More frequently than not, parents waive or decline parent member participation.    However, parents need to be aware of their right to request an additional parent member and pay careful attention to the 72 hour time period.   Parents also need to understand that parent members can serve an important function.

Parents should carefully consider whether they will need a parent member.  Parent members can be helpful to lend perspective and objectivity and, if they are from the District, can offer knowledge and help about District programs.  If you’re attending an initial eligibility meeting for your child, you will be unfamiliar with the process and the associated emotions and would likely benefit from an additional parent member.   If the CSE is considering a more restrictive placement, the parent member may also help you weigh the benefits.  Also, for particularly contentious or emotional meetings, parent members can lend perspective.   Remember, the parent member does not serve as a substitute for a good advocate and is simply participating in the meeting as an additional CSE member.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Governor Amends New York Education Law to No Longer Require Additional Parent Member for CSE
Tags: advocacy, advocates, CSE, disability, IDEA, IEP, individuals with disabilities education improvement act, new york education law 4402, new york state education department, special needs