UPDATE to FAQ for Skyer Law Clients

Skyer Law’s FAQ on the COVID-19 Health Emergency continues to be regularly updated.

Below are new or updated items only. To read the full FAQ, please visit our website.

When will schools reopen?

On July 8, 2020 the Mayor announced the broad strokes of his administration’s proposal for NYC public schools this September. NYC DOE has created a new page on their website that you can bookmark for more information (“Return to School 2020”).

The City’s stated intention for public schools is to provide what they are calling “blended learning,” a mix of in-person and remote learning that will vary by school building site with “most students” attending school “2-3 days per week.” Public statements by the Chancellor and emails to parents from IncludeNYC indicate an intention to provide full-time, in-person instruction to District 75 students as much as possible.

On July 13th, New York State released the outline of its guidelines for reopening schools in the form of a PowerPoint. Formal guidance is expected July 15th. 

Governor Cuomo says he will not be making a decision about whether or not to reopen schools until the first week in August.

We continue to operate under the assumption that most of the private schools our clients attend will physically re-open in some form come September, 2020. Many have already announced their intention to do so.

How does the timing of schools reopening affect when I must provide notice to the DOE if I decide to unilaterally place my child in an independent school for 2020-21?

When schools physically reopen has no impact on the legal timeline for giving notice to your school district. Your attorney must send a ten-day notice to the district on your behalf if you decide to enroll your child in a non-public school or program and seek reimbursement. For 12-month students the 2020-21 school year began on July 2nd; for 10-month students it will begin in September.

If the DOE offers more in-person instruction than my private school can will that harm my case?

As schools prepare for the fall term, many programs are looking at providing a mix of in-person and remote learning at the start of the school year. For parents who may be seeking tuition reimbursement for independent programs, many have asked whether their case could be put at risk if that private school does not offer as much live or in-person instruction as the program offered by the school district. 

To be sure, the merits of every case are very individualized, so you should discuss these issues with your attorney. But the crux of a tuition reimbursement case remains the sufficiency of the IEP developed for your child. A child offered an inadequate classroom and services – albeit offered live and in-person – may well need to enroll in a specialized private school that is individualized to that child’s needs, even if that program is operating remotely due to the pandemic. The private school must establish that the education it is providing is sufficient to address the child’s needs.

What is happening with my 2019-20 case that isn’t resolved yet?

The majority of our active cases from the prior school year have been referred to settlement and are in active negotiations. If your case has not settled, your attorney will be contacting you to discuss the possibility of a hearing.

UPDATE to FAQ for Skyer Law Clients

Skyer Law’s FAQ on the COVID-19 Health Emergency continues to be regularly updated.

Below are new or updated items only. To read the full FAQ, please visit our website.

Does temporarily staying somewhere outside New York City impact my NYC residency for school enrollment purposes?

We know that many families have temporarily left New York City during the coronavirus pandemic, whether to shelter in a vacation home, rent another home, or to stay with family outside the city. Some of our clients have asked us whether this could impact their New York City residency for school enrollment purposes.

This is an individualized question best taken up with your attorney. But, generally speaking, you must maintain your permanent home in New York City if you intend to bring a legal action for special education services here, such as challenging your child’s IEP and seeking tuition reimbursement.  If you are staying outside New York City right now, you must intend to return here once the stay-at-home order has been lifted (your usual summer vacation plans are fine, of course), and you should maintain your tax filing, banking, voting records, car registration, etc., at your home address in New York City, and not establish permanent ties in a different place. And, of course, you cannot request services as a resident of any other school district. 

Am I required to take my child for an annual well visit to their pediatrician in order to update their school health form? Does my child still need to receive scheduled vaccinations? 

Your school health forms expire after one year from the date on the form. In New York State, your child’s school must have forms on-file that are current in order for that child to enroll in and attend school. This has not changed. These health forms require an in-person visit and cannot be completed via a telehealth appointment in most circumstances. Age-appropriate vaccinations also continue to be required for enrollment in New York State schools.

Due to the severity and complexity of my child’s disability, they cannot learn through remote instruction. Can I choose in-person instruction for my child if we have a willing provider or if we are working with an agency that is open for in-person treatment? 

Recently, the DOE has begun to evaluate requests for in-person services for students with “exceptional needs” on a case-by-case basis. We understand this to be a very narrow exception right now and clinical justification is required. However, we have had several positive responses for families with children who meet these narrow requirements. If you are in this situation, contact your attorney case manager for guidance.

When are schools going to re-open, and how will that affect when I must provide notice to the DOE if I decide to unilaterally place my child in an independent school for 2020-21?

Governor Cuomo mandated that remote learning continue throughout New York State for the remainder of the 2019-20 school year in an Executive Order. On May 21, the Governor also announced that New York schools must operate all school programs this summer through distance learning. 

We continue to operate under the assumption that school buildings will physically re-open in September, 2020. The Governor has made clear that this decision will not be made until later this summer.  

The date that schools (public or private) physically re-open their doors does not affect the legal requirement for our clients to provide a 10-day statutory notice if you will be enrolling your child in a non-public school or program; For 12-month students the 2020-21 school year begins in early July, and for 10-month students it begins in September. All of our attorneys are busy drafting these notices now and they will be filed by the appropriate date.  

I received a 2020-21 school placement for my child from the DOE. How do I fairly assess and consider this offer when I can’t tour it?

Parents must make a determination as to whether the program and placement offered to their child will be appropriate based on the information available to them at the time that decision is made. Going to the school (when it is open) is usually the best way to learn about the placement site, but any research you do is helpful.  

In recent weeks, many of our clients have received placement packages via email from the DOE that include this language in the email: You may visit the school, with the attached documents, when NYC public schools reopen.

Within a placement package (which may arrive via email or mail) there is a document titled “SCHOOL LOCATION LETTER.” This document contains the name, address, and telephone number of the specific school placement for your child.  

Generally, we advise that any parent’s first step is to reach out to the school. If your DOE placement is a 12-month program, you might inquire about reviewing a copy of the individual remote learning plan for your child, since we now know that summer 2020 services will be conducted through distance learning only.  As your attorney case manager for guidance here.

Have a list of prepared questions ready when you call. This Skyer Law blog post from a few years ago about touring placements has some ideas of what you might ask, but in general you want to know if your child’s needs be met at this school and if the program on your child’s IEP can be implemented at this placement site. Your child’s current health care providers, therapists, and teachers, (and, if you are our client, your attorney case manager), can help you develop a list of questions that are most appropriate for your child’s situation.  

Other tools you can use to do your own research online include the information published for each school on the DOE website and third-party review-based websites like InsideSchools and GreatSchools. Social media forums (mainly private Facebook parenting groups) for parents of children with special education needs may also be good venues for talking to families whose children attend those schools already. If you are worried about how far away a placement is, you might try using the directions feature in Google Maps to get a sense of how long (on the low end) a bus ride could take. If you are safely able to take a walk around the physical perimeter of the school, that may also provide you with useful information. But you can also use Google Maps to get a street view of the school building. Here is a tutorial on how to do that.  

Do what you can—and document your efforts diligently!

New Court Decision May Impact Some Future Pendency Orders

A new ruling regarding special education was handed down on Wednesday by the Second Circuit Court of Appeals, which governs the application of federal law in New York. This ruling pertains to one of the major provisions that parents rely on in litigation, the right to pendency. (You can read a longer explanation of pendency here.)   

Most parents will not be impacted by this development, but we wanted to take a moment to explain what happened. 

QUICKLY, WHAT IS PENDENCY? 

In short, pendency, or “stay put,” is a parent’s right to keep the last program that their child was given by the school district or that was ordered by a judge. When a lawsuit is filed, pendency can be triggered and last until that claim is fully resolved, whether by a settlement, a final ruling in a hearing or an appeal, or simply by withdrawing the case.  

For children in private schools or who receive services outside of school, this entitlement often takes the form of tuition payments or payments to service providers. These pendency payments do not have to be paid back to the school district even if the parents eventually lose or withdraw their case. For parents in this position, pendency is a great benefit for reducing financial risk and for funding the status quo during litigation.

SO WHAT CHANGED?

The case decided this week (Ventura de Paulino; Navarro Carrillo v. New York City Dep’t of Educ.) involved the question of what happens when a child leaves the private school where they have the right to pendency and instead enrolls in a “substantially similar” school — can the parents still make the district pay while their case is ongoing? The answer as of this week is: No—but with some big exceptions.

The rule has long been that “pendency is not brick and mortar” – that is, that you have the right to a kind of program or service, not a specific school, classroom, or teacher. Parents have used this flexibility to apply their pendency mandate to the school or provider that made the most sense for a child. However, this ruling now holds that parents do not have the same right (as a school district does) to move a child between schools on pendency, even if the kind of program has remained the same, and especially if it is more expensive. 

If this applies to you, your attorney case manager will be in touch to discuss any possible impact and how to address it. We will continue to monitor this case and any appeals that may come from it. 

In the meantime, here are answers to some general questions you may have:

DOES THIS MEAN I WILL LOSE MY CASE IF I SWITCH SCHOOLS?

No. This decision only impacts the interim funding you have while a case is pending. It has no bearing on the strength of your case for settlement or at hearing.

WHO DOES THIS NOT APPLY TO?

This ruling only applies to parents who invoke pendency funding, which many parents do not. Additionally, if your child is remaining in the same school or program as was provided under the IHO order or IEP recommendation you rely on for pendency, this decision should not impact you.  

WHAT HAPPENS IF THE FIRST SCHOOL OR PROVIDER ISN’T AVAILABLE ANYMORE? 

Perhaps the child has aged out and may not attend anymore, or the school will not enroll the child for some other reason, or perhaps the school has closed or a provider has moved away. A judge can’t force a private school or provider to educate a child and neither can the school district. The law says that pendency must still exist in some form. So where is it?

In its decision, the court took pains to emphasize they were not deciding this question, but noted that other courts have addressed it. 

This is the situation where parents may be allowed to choose a “substantially similar” school or provider where their pendency program can be implemented, but only if the school district has not identified a suitably similar pendency program or provider on its own.

In these situations, whether or not a pendency order will be issued to immediately fund a new school or provider with a substantially similar program will be up to the impartial hearing officer assigned to your case who considers all of these facts.

UPDATE to FAQ for Skyer Law Clients

Skyer Law’s FAQ on the COVID-19 Health Emergency continues to be regularly updated.

Below are new or updated items only. To read the full FAQ, please visit our website.

I need a full neuropsychological evaluation or update done for my child this spring. What do I do now?

First, reach out and speak to the neuropsychologist you are working with. Every situation is unique and every neuropsychologist practice we work with is approaching these challenges differently and on a case-by-case basis.

Some neuropsychologists we work with have told us that they requested and received guidance from New York State informing them that they are considered essential health care workers. As such, some of them are able to continue some of their work in-person with social distancing and other safety protocols in place. If you are looking for a neuropsychologist who is able to offer in-person services, ask your case manager attorney for a list of names.

If in-person assessments are not an option, it may be possible to do a comprehensive patient history, an interview of parents and teachers, and some testing and/or remote observations depending on the type of observations or assessments the neuropsychologist believes are necessary and the ability of the child to participate remotely. Follow-up office visits can and should be scheduled for later this spring or summer, if possible, to add to or complete any preliminary reports.

My child cannot learn through remote instruction due to the severity of their disability and my child’s SEIT provider is willing to come to my home. Can we choose to do this?

On March 25th the DOE issued guidance that said, “In-person SEIT is suspended from Wednesday, March 18, until further notice.” But later in the same document, the DOE says, “If you believe a child you are serving has exceptional needs and would be put at risk by a long-term suspension of in-person services, please email specialeducation@schools.nyc.gov.”

If you believe you are in this situation, contact your attorney case manager for guidance.

My open 2019-20 case did not settle and I was never assigned a hearing officer. When will I get a hearing?

The failure to provide timely access to statutorily required due process under the Individuals with Disabilities Education Act (IDEA) is a gross violation of the civil rights of disabled children.

In November, we alerted you to the crisis at the Impartial Hearing Office when, for the first time, no impartial hearing officers (IHOs) were being assigned to any cases filed in New York City due to a shortage in available IHOs. In late January, hearing officers began to be assigned to new cases, but even then, assignment remained inconsistent. The New York State Education Department (NYSED) ordered New York City to develop a waiting list for due process cases waiting for an IHO—and there are still many families languishing in this purgatory.

In February, we posted a lengthy update on our blog about our advocacy efforts around this issue. Subsequently, NYSED and the DOE indicated that they were hiring and training a new class of 30 IHOs. But since then, we have not seen any new IHOs join the rotation. On May 11th, we wrote to NYSED to inquire about the status of those on this waiting list and the anticipated start date of the new class of IHOs. 

If you are in this situation, keep in regular contact with your attorney case manager to discuss all options available to you. We will update this FAQ item as we learn more. 

I received a 2020-21 school placement for my child from the DOE. How do I fairly assess and consider this placement offer since I can’t tour it?

Placement packages, if they arrive, usually arrive in the weeks (or months) following an annual IEP meeting by email, mail, or both. The document titled, “SCHOOL LOCATION LETTER” contains the name, address, and telephone number of the school. Below that, there is always a name and phone number for a CSE staff person who the DOE asks you to call to confirm that your child will be attending that school.

Your first step is to call the CSE staff person indicated and ask to be put in touch with someone at the school so you can learn more.

It is quite possible that you may be unable to reach anyone despite your best efforts. Another option is to try to find the contact information for the school’s Parent Coordinator (sometimes on a school’s website). 

Have a list of questions ready when you call. This Skyer Law blog post from a few years ago about what questions to ask on a school placement tour could be useful for developing that list.

Other tools you can use to do your own research online include the information published for each school on the DOE website and third-party review-based websites like InsideSchools and GreatSchools. Social media forums (mainly private Facebook parenting groups) for parents of children with special education needs may also be good venues for talking to families whose children attend those schools. And using the directions feature in Google Maps can give you a sense (on the lower end) of how long a commute your child would have on a school bus.

If you are safely able to take a walk around the physical perimeter of the school, that may also provide you with useful information. You can also use Google Maps to get a street view of the school building (here is a tutorial on how to do that).

Do what you can—and document your efforts diligently. Take notes (date, time, the number you called, who you spoke to, what was said, etc.) on phone calls, save email correspondence, write up your understanding of what you learn from talking to other parents, take photos if you are able to walk around the building.

When are schools going to re-open, and how will that affect when I must provide notice to the DOE if I decide to unilaterally place my child in an independent school for 2020-21?

Governor Cuomo has mandated that remote learning continue throughout New York State for the remainder of the school year.

We are all operating under the assumption that most school buildings will re-open by September, 2020—and we are waiting to hear whether 12-month programs can re-open sooner. However, it is clear that this situation is very fluid.

Whenever our schools re-open to students, this does not affect the legal timeline for providing notice to the DOE for a unilateral placement in a non-public school. We must still provide ten days of notice before the new school year begins: for 12-month students, the 2020-21 school year begins in early July; for 10-month students, it begins in September. 

Are my child’s rights under the Individuals with Disabilities Act (IDEA) at-risk?

On April 27th, U.S. Secretary Betsy DeVos submitted a report to Congress with her recommendations on waivers to the IDEA. We are greatly relieved that Secretary DeVos did not choose to recommend substantial waivers, saying, “While the Department has provided extensive flexibility to help schools transition, there is no reason for Congress to waive any provision designed to keep students learning."

Thank you to everyone who wrote to their Congressional representatives. Disability advocates and parents of special needs children were heard loud and clear.

Are DOE iPad loans available to students who attend non-public schools and need a device for learning?

The DOE has announced 300,000 more iPads are being made available for remote learning. This week, students at NYS Approved Non-Public Schools were added to the list of eligible recipients along with children with IEPs and IESPs who attend independent private schools. If your child does not have access to a remote learning device and attends a non-public school, you can now apply for one. 

What is the DOE’s position on using the Zoom platform for remote learning?

On May 6th, the DOE updated their guidance to allow schools to resume using Zoom if they choose.

How can I notarize a document that I need to provide to my attorney?

Governor Cuomo’s Executive Order No. 202.7 provides notaries a way to use live audio/video conferencing technology and electronic transmission of documents through fax or scanning to email to legally notarize a document. EO 202.7 was reauthorized by the Governor on May 5th through June 4th.

We are here to help our clients notarize documents as needed for their cases. No one should be venturing out of their homes for this purpose. Please contact your attorney to set this up.

UPDATE to FAQ for Skyer Law Clients

Skyer Law’s FAQ on the COVID-19 Health Emergency continues to be regularly updated.

Below are new or updated items only. To read the full FAQ, please visit our website.

Are my child’s rights under the Individuals with Disabilities Act (IDEA) at-risk?

As of the writing of this update, there have been no changes to special education laws. In fact, the US DOE has issued guidance reaffirming every disabled student’s right to a Free Appropriate Public Education (FAPE) during this period of remote learning. You can read that guidance here.

However, the Coronavirus Aid, Relief, and Economic Security (CARES) Act includes a provision compelling U.S. Secretary of Education Betsy DeVos to submit a report to Congress within 30 days recommending any waivers to federal special education laws the agency believes are necessary to provide “limited flexibility” for states and local school with respect to the COVID-19 health emergency.

The CARES Act became law on March 27, 2020—so we should expect the Secretary’s recommendations for waivers to the Individuals with Disabilities Education Act (IDEA) to be submitted to Congress before April 26th. 

While we don’t yet know what Secretary DeVos will recommend, we are concerned. Earlier versions of the CARES Act provided greater leeway to states to waive IDEA requirements, but due to public outcry, spearheaded by parents and advocates, thankfully that language was never codified. We are watching this carefully.

We think it is crucial for parents (and grandparents and other concerned people) to email their Congressional representatives and demand that they take a stand to protect disabled students’ civil rights under the IDEA. When Secretary DeVos’ recommendations are added to House committee calendars, your representatives should know that the fiercest advocates in America—the families of students with disabilities—are watching them. An easy way to do this is in a few minutes is through Democracy.io. Simply enter your address to send an email to your Senators and Member of Congress. You can copy/paste the text below if you wish and edit it to make it your own:

I am a parent of a student with a disability. I understand that under CARES, Secretary DeVos will be returning to Congress in the coming weeks with the agency's recommendations for waivers to the IDEA. I am terrified that Congress may dismantle the most basic civil rights of my child, such as: access to due process, the right to a program designed to ensure that students with disabilities make "meaningful" educational progress (FAPE), access to my child’s mandated related services (Speech, Occupational Therapy, Physical Therapy, etc.), and more.  Any erosion of the civil rights of students with disabilities is unacceptable. I am asking you to vote against any legislation that will reduce or limit my child’s entitlement to a free appropriate public education.

My child does not have an IEP or IESP and I had planned to request a CSE review. Is that still possible?

Yes. The DOE says on its website that parents can make a referral to the CSE by emailing the principal of their locally zoned school, by calling 311, or by emailing specialeducation@schools.nyc.gov.

Although prior to the COVID crisis we would have clients send referral letters by certified mail we are now directing clients to email the appropriate CSE administrator (See the DOE website’s page for “Committees on Special Education” to find a list of CSE administrators and their direct emails for every CSE office). In your referral letter you should now include your email addresses and cell phone number. We suggest that you use the following language in your email referral: In light of the ongoing health emergency, I consent to any evaluation or meeting that the DOE wishes to do remotely. Here is my cell phone number (INSERT) and my email address (INSERT). Please notify me of all meetings by email.

On April 6th, 2020 New York State issued guidance to relax school district compliance timelines for CSE referrals during this health emergency. The law normally requires that a school district conduct all evaluations, hold a review meeting, create an IEP, and issue a placement notice within 60 school days from the date the parents’ provided consent to the process (or around three months). This new guidance allows the DOE not to count the days when schools are closed pursuant to the Governor’s Executive Orders around the COVID-19 health emergency.  

My child was receiving CPSE services (SEIT and related services) before the stay-at-home order and they have not been able to receive these services remotely. Will they be able to make-up these sessions?

The New York State Education Department has issued guidance to preschool providers indicating that the requirement that make-up sessions take place within 30 days will not include days that schools are closed pursuant to the COVID-19 health emergency. This may effectively provide for a one-month extension of a child’s CPSE program when schools resume—but we are awaiting more specific guidance from the DOE about how this will be implemented.

I have a scheduled impartial hearing. Is this really happening and how?

The NY State Education Department (NYSED) has issued guidance allowing impartial hearing officers (IHOs) to conduct their hearings by telephone (and more recently, videoconference). We have been doing these for the last three weeks and they are going very well. 

NYSED is now allowing IHOs to extend cases up to 60 days, instead of the usual 30 days, while schools are closed. NYSED says that this change is to allow for greater flexibility with regard to witness availability.

If you have an upcoming impartial hearing, check in with your attorney for information on how your assigned IHO will conduct the hearing. You and your attorney will confirm witness availability.

I have received my retainer agreement from Skyer Law, but I’m not sure what I’m doing next year. What if I change my mind about pursuing a due process claim?

Our retainers for the 2020-21 school year for returning clients allow for retainer fees to be refunded if you change your mind and send your child to a public school and notify us in a timely manner. We understand how uncertain these times are and want to ensure that our clients have the benefit of good counsel as they make these important decisions.

My child’s independent private school is using Zoom even though the DOE has banned it. Is this okay?

On April 4th, the DOE abruptly announced that NYC public schools must transition from Zoom and Google Hangouts and now use Microsoft Teams. The reason for this change was concern over privacy rights. Private schools are not obligated to provide instruction in the same manner as the school district and can continue with whatever platform they have chosen.