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Celebrate the IDEIA: A Global Perspective

September 28th, 2012

By Marion M. Walsh, Esq.

As we begin a new school year, we must all remember that the Individuals with Disabilities Education Improvement Act (“IDEIA”) is a revolutionary civil-rights statute, unparalleled in any other country or at any point in history. In re-enacting the IDEIA in 2004, Congress found that:

Disability is a natural part of the human  experience and in no way diminishes the right of individuals to  participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.

A glimpse of other countries offers a different picture.  This past year, my daughter traveled in Kolkata, India to volunteer for Daya Dan, an orphanage for  children with disabilities run by the Missionaries of Charity.  My daughter tutored a boy who was approximately 11, who was just leaning his letters and to read, but had no formal diagnosis, no formal teaching, except the volunteers and the nuns.  She tried multi-sensory techniques, sang songs about the letters of the alphabet and helped him with writing and art projects.  He grasped a lot but became easily frustrated.  Yet he was one of the lucky ones, since he had attention, care, shelter and food. But an IEP?  Special education and related services provided all school year?  Not a chance.    By some estimates, only 2% of children with disabilities in the world attend school, with the remaining 98% excluded.

As Americans, while we are rightfully critical of much of our educational system, we should be proud of our progress.  The IDEIA findings note that, before the date of enactment of the Education for All Handicapped Children Act of 1975, school districts were not meeting the educational needs of millions of children with disabilities because, among other reasons, the children were excluded entirely from the public  school system and from being educated with their peers or  undiagnosed disabilities.  The law has been successful in helping to ensure that children with disabilities and the families of such children have access to a free appropriate public education and in improving educational results for children with disabilities.

Of course, we have a long way to go.  Because the IDEIA represents a model for the world, we have to make sure it is working.  Appreciation of the law does not mean that we should not continue to advocate for its continued improvement or settle for less than strict compliance and meaningful progress.  Clearly, the implementation of the IDEIA has many challenges, but let us not forget how fortunate we are to live in a country that protects the educational rights of every student and sets an affirmative duty on every school district in the country to identify students with disabilities and provide a free appropriate public education to each student identified.  In fall 2010, I heard former New York State Education Commissioner David Steiner speak, who described the IDEIA as a model and envy of the world and noted that no other country went to such lengths to protect the substantive and procedural rights of its most vulnerable students.  He stated that in his view, every child should have an IEP.  This is a vision worthy of contemplation.  However, given the political environment, as exemplified by the New York State tax cap and the burdens on schools in doing so, it seems unlikely that such legislative measure would pass.  Still, the IDEIA creates a model of differentiating instruction and serving all student needs. It also important to remember that the IDEIA protects every child and every parent, because, disabilities can develop or become identified at any point during a child’s educational career and every child needs a safety net.

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Governor Amends New York Education Law to No Longer Require Additional Parent Member for CSE

August 22nd, 2012

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.

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Don’t Forget the Ten Day Notice Rule if Considering Tuition Reimbursement Claim

August 17th, 2012

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.

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