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New York Parent Advocates for Ability to Appeal Regents Score

November 19th, 2015

By Sandi Rosenbaum, Educational Advocate, Littman Krooks LLP

Although special education students in New York can pass their Regents exams with lower scores than students without disabilities, they do not have the same ability to appeal if they fall short. One New York parent, whose son was one point away from passing a Regents test, is advocating for change.

Littman KrooksGenerally, students in New York who do not have disabilities must achieve a score of 65 or higher on five Regents exams in order to receive a diploma. However, such students can appeal up to two Regents exam scores as low as 62, provided they earn a passing course grade and demonstrate strong attendance. While a successful appeal does not change the Regents exam grade on the transcript, it does allow the school district to grant a diploma to students who have fallen short on the exam, but otherwise demonstrated mastery of the high school curriculum.

Students with disabilities benefit from the so-called “safety net” and must generally score 55 or higher to pass the Regents exams. On some exams, even a score as low as 45 may suffice if it is offset by another exam score of 65 or better, but this compensatory option does not apply to the Regents exams in English and Math. While the safety net provides meaningful relief to students with disabilities, those who approach, but do not achieve, a score of 55 on the English or Math Regents exams have no ability to appeal for a diploma as do students without disabilities who come within a similar margin of passing.

A Brooklyn resident and mother of an 18-year-old son with a learning disability, took action when her son was poised to come within one point of earning his diploma. He passed four Regents exams, earning scores as high as 79, but was unable to score higher than a 54 in algebra, even after taking the exam three times. She said that, as a high school diploma was essential for her son to be considered for many jobs that he would be capable of performing, she was determined that he would not be denied a diploma over one point on one exam at his anticipated graduation in June 2016.

New York officials responded to her concerns and said that the Board of Regents would vote on a rule in December to allow special education students to appeal for the right to a diploma if they achieve a score of at least 52. Officials said the change would not be a lowering of standards, but an inclusion of special needs students without diminishing their ability to achieve.

Practical Pointer: Students with disabilities may remain in school and continue to receive services until age 21 or until they earn a Regents or local diploma, whichever comes first. Parents must keep in mind that students may earn a Regents or local diploma and a Career Development and Occupational Services Credential, which attests to important work readiness skills and requires work experience. For many students with disabilities, graduating with a Regents or local diploma at 18 does not represent the best option and may deprive the student of the opportunity to develop needed work-readiness skills, as a school district’s mandate to provide a free appropriate public education (FAPE) ends when the diploma is earned. Thus, the decision to appeal must be considered carefully against the benefits the student may receive from potential additional year(s) of schooling while he or she pursues the score of 55.

It remains to be seen whether the opportunity for appeal will apply to both of the English and Math Regents exams simultaneously, or only for one or the other.


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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:



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Understanding Guardianship in New York

April 30th, 2013

A guardian is one who is legally entitled to make decisions for another person, such as financial and medical decisions. Guardians are typically appointed for adults with special needs or seniors, when they are unable to care for themselves. In the state of New York, there are two separate processes: Article 17A guardianship is typically used for a developmentally disabled individual and Article 81 guardianship is typically used for a person needing assistance with personal care or financial matters, such as an older person with a progressive illness.

Article 17A Guardianship

When a child with special needs reaches the age of 18, parents will no longer have the right to make decisions for that person, unless an Article 17A guardianship proceeding has been completed. This type of guardianship grants broad authority similar to that held by parents for minor children. A good candidate for an Article 17A guardianship would be a developmentally disabled child approaching the age of 18 whose mental capability is similar to a much younger child.

This type of guardianship was created by Article 17-A of the Surrogate’s Court Procedure Act. It is granted by county Surrogate Courts. If the person needing a guardian is under the age of 18, then the court in the county where the guardian lives is used; otherwise the court in the county where the disabled person lives is used.

Obtaining this type of guardianship is relatively simple. Either two doctors or a doctor and a psychologist must certify that the disabled person needs a guardian. The guardian must also provide information about his or her prior residences. The disabled person and his or her spouse (if any), other parent (if only one parent is seeking guardianship), and any adult siblings are all served with guardianship papers, and a court hearing is held to determine whether guardianship will be granted.

Article 81 Guardianship

When an adult is no longer able to make important life decisions or tend to everyday needs, due to an accident or illness, an Article 81 guardianship may be appropriate. This type of guardianship grants specific, individualized powers to the guardian, according to the needs of the disabled person. This type of guardianship is often used in the case of an older person with Alzheimer’s disease or other dementia.

This type of guardianship was created by Article 81 of the Mental Hygiene Law. It is granted by county Supreme Courts, and is based on the concept of the least restrictive alternative, meaning that only specific types of authority are granted, tailored to the particular needs of the incapacitated person.

In deciding Article 81 guardianship, the court is required to consider alternatives that may better suit the needs of the individual, such as a nursing home, assisted living facility or visiting home health aides to meet the person’s daily needs, or a trustee or payee to handle financial matters. The court may appoint a guardian if it determines that the person cannot provide for personal needs or manage property and financial matters without a guardian and the person is incapacitated or agrees to the guardianship. In the case of a person suffering from the earlier stages of a progressive disease, a court can grant a guardian limited powers that can later be expanded through a modification order.

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The Dignity for All Students Act: A New Tool to Keep Student Safe

September 12th, 2012

by Marion M. Walsh, Esq.

Bullying can harm any student, but research shows that students with disabilities are particularly vulnerable to harassment and bullying.  Bullying can cause educational decline, anxiety, physical ailments and missed classes, among other problems. This year, a new tool and mandate exists to prevent and address student bullying and harassment.

Effective as of  July 1, 2012, the Dignity for all Students Act prohibits harassment and bullying based on race, weight, national origin, ethnic group, religion, religious practice, mental or physical disability, sexual orientation, gender identity, and sex, as well as bullying based on other characteristics.  The Act seeks to provide every public school student with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus or at a school function. To implement the law, each school must appoint a Dignity Act Coordinator.    The Dignity Act also requires instruction in civility, citizenship, and character education by expanding the concepts of tolerance, respect for others and dignity to include an awareness and sensitivity in the relations of people based on the above differences. The Dignity Act further requires Boards of Education to include language addressing The Dignity Act in their Codes of Conduct and to amend their policies. New York State has developed excellent tools to help schools implement the law and to help parents understand it.
The Dignity Act requires school districts to adopt proactive, not just reactive, responses to bullying. The mandate of a supportive education environment should change the way school personnel address bullying—not as just a disciplinary measure, but as a school environment issue.  Thus, in addressing bullying, according to New York State Guidance, a school district should, for example, consider: peer support groups; corrective instruction; supportive interventions;  behavioral assessment or evaluation; behavioral management plans; school counseling and parent conferences.  In addition, New York state recommends  school­-wide  environmental remediation such as:

  • supervisory systems  which  empower school staff  with  prevention and  intervention tools to address incidents of bullying and harassment; school and community  surveys  or other strategies  for determining the conditions contributing to the relevant behavior;
  • adoption of research-­based, systemic harassment prevention programs;
  • modification of schedules;
  • adjustment in hallway traffic and other student routes of travel;
  • targeted use of monitors;
  • staff professional development;
  • parent conferences;
  • involvement of parent­-teacher organizations; and
  • peer support groups

The Dignity Act represents an important further step in protecting student rights and the prevention of bullying.   Federal courts  have already recognized the right of students with disabilities to be free from peer harassment and bullying, when a school district is deliberately indifferent and the harassment causes loss of educational opportunity.  In K.M. v. Hyde Park Central School District, 381 F.Supp.2d 343 (S.D.N.Y 2005), the United States District Court for the Southern District  recognized that school districts could face liability for peer harassment based on a student’s disability, in the same way as for peer sexual harassment.   In the K.M. case,  a 13-year-old eighth grade student,  was the victim of repeated instances of being called “stupid,” “idiot,” “retard” and other “disability-related insults” and acts of “physical aggression” and intimidation (all by other students) while in school and on the school bus.  He was physically beaten and his school books were thrown into the garbage in the cafeteria between 5-8 times.   The court held that “a school district’s deliberate indifference to pervasive, severe disability-based harassment that effectively deprived a disabled student of access to the school’s resources and opportunities would be actionable under Section 504 and Title II.”  In addition, the parent in this case filed for a hearing for tuition  reimbursement, based on the denial of a free appropriate public education, and the IDEA claim settled out of court.
Parents must know that they have powerful legal tools at their disposal. However, ideally, before bullying or harassment reaches a crisis point, school districts and parents should work together to prevent bullying and, if it occurs, stop it early.  Parents should expect teachers to closely supervise students and to address any bullying promptly.  Parents also play a crucial role in preventing bullying.  Particularly for students with disabilities who may not be able to speak for themselves about bullying or understand it, parents must be proactive and protective.  If you notice signs of withdrawal and anxiety in your child, ask your child about what is happening in school.  Work with your child’s teacher(s) to get to the root of the problem.

Here are six steps to take to be proactive to learn how to address student bullying:

1. Review your school district’s Code of Conduct to ensure that it incorporates Dignity Act provisions. Also make sure the District has policies to incorporate Dignity Act provisions. Students must receive a plain language summary at the beginning of the school year and receive training at an assembly.

2.  Learn who the school’s Dignity Act Coordinator is. Ask about the above environmental remediations to prevent bullying and address it when it occurs.

3.  If your school district’s Code of Conduct does not address the requirements of the Dignity Act, you should alert the Superintendent and the Board of Education and expect action.

4.  If your child is the victim of bullying or you believe bullying has occurred, do not delay in reporting this to your school district, even if your child denies it or asks you not to.  If you fear your child will be retaliated against, you can ask for additional supervision.   First, report to the Dignity Act Coordinator.  Document your concerns and specific incidents in writing   If the school does not address your concerns, follow up.  Be relentless.

5.  Keep a log and journal and any physical evidence of bullying.

6.  Most importantly, support your child and make sure he or she receives any needed counseling or other support and that you address the problems immediately

For more information regarding bullying, or education, please visit or


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

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