What is a 10-Day Notice -- and What Happens Next?

In tuition reimbursement cases, there is a requirement that parents provide notice to the school district at least ten business days before unilaterally placing their child in a private school. That notice outlines the due process and placement complaints the parents are making. We commonly refer to these statutory notices as “10-day notices.”

With the start of the 2017-18 school year just around the corner, we are now busily preparing and sending out 10-day notices for the majority of our clients. For those of you who are new to this process, you are probably wondering: Now what happens?

In 2014, Mayor Bill de Blasio announced a package of administrative policy changes aimed at streamlining settlements and avoiding unnecessary litigation. Since then, when a case meets certain, narrow criteria, the DOE will “fast-track” it for settlement based on the 10-day notice alone. This can happen:

·         When the family won an impartial hearing the prior year (without the DOE appealing) and is seeking a placement at the same school; or

·         When there was a settlement the prior year for the same placement and circumstances; or

·         When a student is in their last year of schooling at a previously funded school.

If a case does not meet the above criteria, this does not mean the DOE will not decide to settle, it just means your case will not be “fast-tracked.”

For cases that don’t settle right away, after the school year begins your attorney will file an Impartial Hearing Request.

DOE responds to NYC Council Members on Tuition Reimbursement Delay Issue

We have reported to you extensively about our efforts to advocate for an end to the unacceptable delays in tuition reimbursement payments to our clients. When we last updated you, we reported that, at our request, City Council Education Committee Chair Daniel Dromm, along with Council Members Ben Kallos and Daniel Garodnick, sent a powerful letter to Mayor De Blasio, asking him to honor the commitments his administration made back in 2014 to special needs students and their families.

The Department of Education has now responded to the Council Members' letter, admitting that there have been problems and that there is room for further improvement. It's good to hear that the DOE is cognizant of this and we are hopeful that they will improve their process for 2017-18 based on this stated understanding. The full DOE response is embedded at the bottom of this article. (If you are reading this via our email list, you will need to visit our website to view the letter.)

In its letter, the DOE also made it clear that a significant factor contributing to delays is out of their direct control. Namely, they pointed to rules governing NYC Comptroller approval. Here is what they said:

As noted, as part of the settlement process in each case, DOE submits memoranda and supporting documentation to the New York City Comptroller in which it seeks settlement authority from the Comptroller. One of the challenges of the new process and its subsequent expansion had been a significant increase in the volume of requests to the Comptroller's office, in a concentrated period, resulting in lengthened review time. The Comptroller's office has since built administrative systems to speed up its review process. However, such systems have resulted in new, and more complex requirements that must be followed by the DOE.

We are very grateful to our elected officials for taking action on behalf of our client families. If you have a moment, particularly if you happen to be a constituent of Council Members Dromm (District 25, Queens), Kallos (District 5, Manhattan), or Garodnick (District 4, Manhattan), please take a moment to thank them for their efforts on behalf of New York's special education families.

We will continue to update you as we move forward with our advocacy efforts.

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DOE Considering Multi-Year Settlement Agreements

Earlier this week, the NYC DOE’s Office of General Counsel advised our office that some parents will have the option of entering into a three-year renewable settlement agreement with the NYC DOE. As many of you may recall, Mayor de Blasio’s 2014 Special Education Initiative that started the “Fast Track” settlement process also included the prospect of multi-year settlements.

But don’t get too excited yet. Thus far, the proposal from the DOE is not favorable to parents. In fact, the current proposed language significantly weakens a parent’s position in settlement. The DOE does not appear to be committing to paying out for years two and three at the time of the agreement, rather, they’re setting a cap on the amount they’ll reimburse for years two and three if the IEP remains the same and if the DOE has reason to settle the case.

In other words, the language of the proposed agreement forces parents to commit to a maximum dollar amount in reimbursement, but relieves the District of its responsibility to pay if certain conditions are not met. Additionally, because parents remain obligated to file Ten Day Notices each year, a multi-year settlement under the DOE’s current proposal requires that parents continue to be in an adversarial position with the DOE.

We will continue to communicate with the Office of General Counsel to determine whether equitable multi-year settlements are a possibility. 

Tuition Reimbursement Update 3: Keep Making Noise!

By Regina Skyer 

Last week we reported to you that almost 70 percent of parents who settled with the City on a tuition reimbursement case were still waiting for their money. As of today, that number is closer to 60%, but there is still a long way to go.

I wanted to share with you, with the kind permission of a client, an excellent example of the kind of personal letter we have been encouraging our affected clients to send to their Councilmembers. This mom’s letter is direct, honest, and to the point. I think it will be highly effective in communicating the severity of the situation to this elected official. 

Please read what she wrote, and if you haven’t sent in your own letter yet, there are instructions at the bottom of this page for how to find your Councilmember’s contact information. 

----

Councilman Reynoso,

My son and I live in Brooklyn and you are our City Councilman. I am writing to make sure that you are aware of a serious problem within the DeBlasio administration that is affecting my son and, no doubt, other school-aged children in your district. I hope you can help me and my son get the payment that the City promised to us. Please also ask your colleagues on the City Council to allow our attorney, Regina Skyer, to address the City Council about this issue. 

As you may know, students, like my son, who cannot get an appropriate education within the NYC public school system -– so called “special needs students” -- can pursue their legal right to have the City of New York pay for an appropriate education offered elsewhere. At times, it is necessary to go to court to enforce these rights. Other times, the City offers to settle the case.  The process is long, time consuming and extremely expensive for parents. Each year, we fight endlessly to get my son the appropriate education he is entitled to under the law.  For the 2015-2016 school year, my son’s father and I chose to accept the settlement offered by the City. The settlement amount did not nearly cover the total cost of his education and certainly did not cover the legal fees we spent pursuing our son’s legal rights. Nevertheless, we chose to settle the case in order to avoid the time consuming and even more expensive process of going to trial.  We are 100% confident that we would have prevailed at trial.

We signed a settlement order with the City on May 16, 2016. Despite our attorney’s constant phone calls and emails to City representatives, we have only received partial payment of that settlement. The City still owes us a substantial amount of money under our settlement agreement. This has created an extreme financial hardship for our family, not to mention that it is entirely outside the bounds of what is both legally and morally right. 

As I mentioned, we fight to enforce our son’s right to an appropriate public school education every year. That means that we are already pursuing his rights for the 2016-2017 school year. But this year we cannot consider settlement and feel that we must go immediately to trial. Why would we ever settle a case when we not only feel our case is strong and we would prevail at trial but it is also clear that settlement agreements are not being honored by the City? 

And, what is worse is we are not alone in this!  Our attorneys advise us that a large percentage of their cases are still awaiting payment and my friends who use other attorneys report that they are in the same situation.  I am sure that you have other constituents, in addition to my son and I, that are suffering due to the City’s failure to pay its debts to students.

Mayor DeBlasio adopted a policy to “fast-track” settlements for tuition reimbursements. This policy is not being enforced by the City. The Mayor has broken his promise to our kids.

Please help me and my son get the payment that was promised to us. Please also ask your colleagues on the City Council to allow our attorney, Regina Skyer, to address the City Council about this issue. 

With regards,

-------------------------

Send you own letter today! Find your Councilmember’s name and contact information using this online form: http://council.nyc.gov/html/members/members.shtml. You will see a district office address and legislative office address listed for your representative. If you decide to use snail mail, address your letter to the district office.

Please also cc the following legislators:

NYC Council Education Committee Chair Daniel Dromm
250 Broadway, Suite 1826
New York, NY 10007
ddromm@council.nyc.gov

NYC Council Speaker Melissa Mark-Viverito
250 Broadway, Suite 1856
New York, NY 10007
mviverito@council.nyc.gov 

The Squeaky Wheel Part 2: (Another) Update on 2016-17 Tuition Reimbursement Settlements

“I hate to be a kicker,
I always long for peace,
But the wheel that does the squeaking,
Is the one that gets the grease.”

— Josh Billings (1870)

By Regina Skyer 

Since October 17th, when we first sent our open letter to the City Council making our ‘Demand for Payment,’ we haven’t stopped squeaking.  As of November 15th, thirty-one percent of the outstanding stipulations have been executed and returned to us.  That leaves us squeaking about the remaining sixty-nine percent.

Similarly, reimbursement payments are once again flowing into our escrow account and are being sent on to clients forty-eight hours later.  As of today, almost thirty-five percent of the cases that were awaiting payment as of two weeks ago are now paid.  Again, we are relieved to see this movement—but the battle is far from over.

We have continued to provide regular updated information on both non-executed stipulations and non-paid cases to the appropriate department heads at the DOE. We have repeatedly demanded that they execute and pay out these cases immediately. In response, the Department of Education’s Office of General Counsel and the Finance Department inform us that they continue to work diligently on our cases.

What I strongly suggest is that if you are one of our clients whose 2015-2016 case has not been executed or paid, that you write to your City Councilmember, inform them of your situation, and request that your attorney, Regina Skyer be given an opportunity to address the City Council about this issue affecting many hundreds of New York families of special education students.  Remember, there is a city election next year, and no one up for re-election including the Mayor, wants negative publicity.

Find your Councilmember’s name and contact information using this online form: http://council.nyc.gov/html/members/members.shtml. You will see a district office address and legislative office address listed for your representative. If you decide to use snail mail, address your letter to the district office.

Please also send a copy of your personal letter to your Councilmember to the following legislators:

NYC Council Education Committee Chair Daniel Dromm
250 Broadway, Suite 1826
New York, NY 10007
ddromm@council.nyc.gov

NYC Council Speaker Melissa Mark-Viverito
250 Broadway, Suite 1856
New York, NY 10007
mviverito@council.nyc.gov