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When You Suspect Your Child May Have a Disability…

January 19th, 2016

By Felicia Lebewohl Rosen, Esq., Ed.M. (Edited by Marion M. Walsh, Esq., Littman Krooks LLP)

Take a deep breath … It can be emotionally difficult to accept and deal with the fact that your child has a disability. If you want your child with a disability to receive appropriate services to make his or her life (and yours) easier and more productive, you should acknowledge the possibility and consider seeking services.   First, you need a good diagnosis, to which interventions can be geared. This diagnosis can occur at any point during a child’s development, most commonly during infancy or early childhood. However, some parents only realize that their child has a disability in adolescence, when work and social demands become more difficult. If your doctor or psychologist makes a diagnosis, keep in mind that you need to share this information with your school district or preschool and determine whether your child is eligible for services.

The Law Protects Students with Disabilities and Requires Evaluations and Services

The Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), protects children with disabilities ages birth to 21 or until a student graduates with a regular high school diploma. The IDEA requires each state and school district to identify and evaluate all children who need special education and/or related services. Related services include physical, occupational and speech and language therapy and more depending on need.

Early Intervention (EI) is a system of services, free of charge to parents, that help children with disabilities or at risk for a disability, ages birth – 3 years old, and their families. For a child to receive EI services pediatricians, other service providers and parents may refer a child for EI. The Center for Disease Control and Prevention recommends that children be screened for developmental delays and disabilities during regular well-child doctor visits at 9, 18 and 24 or 30 months and additional screening may be warranted if a child is at high risk.

Once your child is school age and you suspect a disability or receive a diagnosis, parents may contact their school district and request that their child be evaluated for eligibility for special education and related services. School districts are responsible to provide educational and related services, free of charge to parents, for children with disabilities ages 3 – 21 or until a student receives a high school diploma. The law requires that school districts receive informed consent from parents before the child is evaluated by the school district to determine if the child has a disability under the IDEA. The individual evaluation must include a variety of assessment tools and strategies. A school district must conduct the evaluation within 60 days from the date that the parent consents to testing. At a minimum, an evaluation must include: a psychological evaluation, a classroom evaluation, a social history, a physical examination and other appropriate assessments or evaluations.

An evaluation is intended to address the following three questions:

  1.  Does the child have a disability that requires special education and related services?
  2. What are the child’s specific needs? and
  3. What special education and related services are appropriate for addressing those needs?

If parents disagree with the school district’s evaluations, they have a right to an Independent Educational Evaluation (IEE) and request that the school system pay for the IEE. A diagnosis from a doctor or psychologist of a disability does not guarantee that a child will be eligible for special education or related services. The law requires that the disability impacts the child academically.

Littman Krooks Special NeedsIn New York, a Committee on Special Education (CSE) for students in grades K-12, and a Committee on Preschool Special Education (CPSE) for students ages 3-5, are multi-disciplinary teams that include, at the very minimum, the parent, a general and special educator, a school psychologist or another professional who is qualified to interpret evaluations, and a district representative. The CSE and CPSE will convene to review the evaluations and determine if the child is a “student with a disability”, as defined by the IDEA. If the parents do not agree with the evaluation decision, they may ask for an impartial hearing to challenge the decision. Some neurological conditions, such as Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder/Attention Deficit Disorder (ADHD/ADD) and a Learning Disabilities (LD) are often difficult to diagnose because there is no medical test, like a blood test or an MRI, to diagnose these disorders. Further, many other conditions have symptoms that are similar to those of ADHD/ADD and there is a great deal of comorbidity with other conditions. For example, anxiety can mask as ADHD.

At the CPSE and CSE meetings, if a child is deemed eligible, the team will draft an Individualized Education Program (IEP). The IEP is a legal document which discusses the child’s strengths and areas of need. It specifies the special education and related services that the child will receive free of charge to the parents. If the parents disagree with the IEP or the placement recommended by the CSE, the parent may request a Due Process Hearing. In some cases, filing a complaint with the New York State Education Department may be appropriate. Parents may proceed pro se (without a lawyer) or be represented by counsel.

Personal Advice on Keeping it all in Perspective

If your child has a disability, try not to waste your emotional energy on self-blame. Disorders such as autism, ADHD, and emotional and learning disabilities can be disorders in certain regions in the brain. They are not caused by bad parenting, chaotic home environments, ineffective teachers, too much sugar in the child’s diet or the child himself. Your child is still the same child you had before the diagnosis. Love, play, engage, have fun, enjoy, hug and laugh with your child. If your child is an adolescent, give your child support along with the space he or she needs to grow at their own pace.

Take care of yourself or you will not be able to take care of your child. We are all familiar with the stewardess’ message on airplanes to put your oxygen mask on before you place one on your child. So take care of yourself so you can better take care of your child. Put on your oxygen mask by joining support groups, finding solace in supportive family and friends or religion, joining support groups, exercising and eating well and remembering to enjoy and laugh. It can be a long journey.

For more detailed information about disability laws, see www.nysed.gov/specialed.


Felicia Rosen is a legal intern with Littman Krooks LLP and is an attorney. She graduated from New England School of Law and Columbia University Teachers College. 


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

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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.


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

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New York State Honors Businesses That Employ People with Disabilities

October 20th, 2015

October is National Disability Employment Awareness Month, a time to celebrate the ways that people with disabilities strengthen the workforce, the nation, and the communities in which they live, and to commit to a society in which all people can build bright futures for themselves and their families.

In New York State, the Office for People with Developmental Disabilities (OPWDD) will honor selected businesses in the state that have shown that employing people with developmental disabilities is great for business, and that these workers are valued.

On Thursday, October 22 at the New York State Museum in Albany, OPWDD will host an event called Works for Me, which will highlight the inspiring stories of workers with developmental disabilities who add to the success and productivity of businesses across the state. For more information, visit opwdd.ny.gov.


Common Core Assessments: Pros & Cons of Opting Out

April 7th, 2014

By Marion Walsh, Esq., Littman Krooks LLP

Last week, New York State students participated in the English Language Arts assessments.  Math assessments will occur Wednesday, April 30 – Friday, May 2.   This is the second year that students in New York will take assessments based on Common Core Learning Standards (CCLS).  Westchester County Executive Rob Astorino has stated publically that he planned to have his children opt-out of these assessments.

Before making the same decision for your child, you should understand the purpose of the tests and any consequences of opting out for your child.

CCLS is Required in New York as Part of Assessment Scheme

The CCLS assessments represent only one part of required No Child Left Behind Act (NCLB) testing.  NCLB requires states to administer tests in English Language Arts (ELA) and Mathematics in grades 3-8 and at least once in grades 10-12. It also requires states to administer testing in Science at least once during grades 3-5, 6-9 and 10-12.  In New York, the State Education Department Office of State Assessment coordinates, develops, and implements the assessment program.  New York implemented CCLS as part of NCLB assessments last year. The tests primarily at issue in the opt-out movement include testing in ELA and Mathematics for grades 3-8, as it is only these assessments that incorporate CCLS at this time.

There are consequences for your school district if the district does not meet testing participation rates. NCLB requires a 95% rate for all students and subgroups or the district could lost Title I funding.

Understand Your Rights

Most school districts will respect your right to have your child decline to take the assessments.   As a matter of terminology, legally, New York State does not have a statutory opt-out provision and there exists no right to opt-out.  New York State law does not require parental consent before school districts administer building level assessments to the general population.

Consider the impact of Opting Out

Before you decide to have your child opt-out, consider the impact of that decision on your child. On the one hand, the decision may empower your child and send an important statement.

Keep in mind that the Common Core now constitutes the general curriculum in New York and, in order to advance from grade to grade and achieve a high school diploma, your child will have to progress in this curriculum.   If your child is struggling on Common Core assessments, you will need data to present to his/her teacher to get needed support or services.  School districts also need to know how students are doing in order to improve these tests, improve the curriculum and improve student performance. The school and the parents need all the evidence they can get on what is working and not working, particularly for children who are struggling in school.   If your child has a disability or you believe that your child may have a disability, it can be even more important to get this data.   The Common Core assessments have lofty aspirations and many problems but educators cannot improve the assessments without data.

Make certain that the decision to opt-out will not negatively impact your child. Understand that your child has been working toward these assessments for the year.  Telling your child not to take them may devalue their work in school.

Your child will be taking many different types of assessments for many years, such as the SAT and ACT and, possibly, tests for admission to professional schools (MCAT, LSAT).  You may prefer to have your child to learn coping skills on difficult tasks rather than opting out.   In addition, opting out of the assessments could also impact your child’s placement and services for the following year.

Before having your child opt-out, consider the following steps:

  1. Talk to your child’s teacher and the school principal about the reasons you do not want your child to take the assessments and ask about more support.
  2. Understand the consequences for your child and the school district.
  3. Make certain that opting out will not make your child more anxious by feeling singled out.

As an Alternative, Consider Advocacy:

New York State has indicated that it wishes to receive guidance and input on improving common core assessments and wants to hear from parents. The State Board of Regents has already adjusted the implementation of the CCLS in New York and will continue to do so.

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Are You the Brother or Sister (Sibling) of an Individual with a Developmental Disability

December 18th, 2012

  • Are you an adult (over 18)?
  • Are you the brother or sister (sibling) of an individual with a developmental disability? *
  • Does your sibling live in New York State (including New York City)?

If you answered “yes” to these questions, then we want to hear from you! Please complete our New York State Siblings Needs Survey. We are trying to better understand the needs of siblings in New York State. The findings from this survey will help us plan the next steps to support adult siblings of persons with developmental disabilities.  We will also give you a list of sibling web resources at the end of the survey. The survey will take about 10-15 minutes.

To complete the survey, click on this link:



Second Circuit Rules that School Districts Cannot Use Retrospective Testimony to Rehabilitate Defective IEPs

September 21st, 2012

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 BurlingtonCarter 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.

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