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 my non-public school have to follow the shortened spring break schedule announced on March 31st by the DOE?

While NYC public schools will now only be taking April 9-10 for the spring break vacation, independent schools are not obligated to follow the school district’s vacation schedule. Having a different vacation schedule should not impact funding for an independent private school program. These schools must, as always, simply demonstrate that they are providing an appropriate educational benefit to their students. NYS approved non-public schools, however, must abide by state rules and will need to adjust their calendars.

I was offered a “3-year deal” on my tuition reimbursement case by the DOE. Should I consider it because of this health emergency?

The majority of our tuition reimbursement cases that are settling have included offers of a three-year "renewable" stipulation. When these so-called “three-year deals” were first rolled out in 2017, we wrote in an update to clients that we did not find the language favorable. Since then, what we have learned has confirmed our general position; clients with these stipulations are no more likely to see their cases settle in subsequent years, and their cases have actually moved more slowly.

That being said, clients should speak to their attorney case managers about their individual circumstances to make the best decision for their families.

My child receives SETSS, SEIT and/or related services (speech, OT, PT) from an independent provider—but they have not received those services since the schools closed. Some providers are saying that they are not yet authorized to provide services, while others are doing so. What is allowed?

Any failure of the DOE to offer these services on an “equitable and comparable basis” to what has been offered to public school students would be inequitable and, as we see it, a violation of law. If you are our client and your child is experiencing this issue, please reach out to your attorney case manager immediately.

There have been confusing and conflicting messages from the DOE as well as from some of the agencies that provide these services. NYC public school students began receiving their related services via distance learning on Monday, March 23rd. 

Authorizations and instructions for independent (non-DOE) SETSS and SEIT providers as to how they can provide services and be paid for them were sent out Wednesday, March 25th. Comparable instructions for independent related service providers were provided on Tuesday, March 31st. All these providers should be able to work with their clients and be paid.

Our first goal is to get everyone’s services restarted as quickly as possible, but your attorney case manager can also discuss pursuing compensatory relief for your child.

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 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?

We are adding language to our retainers for the 2020-21 school year that allow for most of your retainer fee to be refunded if you change your mind. We are doing this to ensure that our many clients who are uncertain about their next steps do not lose the benefit of proper counsel during this difficult time.

The DOE scheduled testing for my child. Is this really happening and how?

CSEs shifted to remote practice on March 20, 2020, and according to the DOE’s “Information on Remote Learning” page: “Assessments may be conducted remotely.”

Please check in with the person who scheduled your child’s testing at the CSE to confirm that your testing is still scheduled to go ahead remotely. Forward details about that communication to your attorney.

If you cannot reach the person who scheduled your testing, visit 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 and email specialeducation@schools.nyc.gov. Reach out to your attorney if you are unable to contact anyone regarding your child’s scheduled testing.

I need to get a full neuropsychological evaluation 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 different and every neuropsychologist practice we work with may approach these challenges differently. In many cases, it may be possible to do a comprehensive patient history, an interview of parents and teachers, and some testing and/or remote observations. Follow-up in-person office visits can and should be scheduled for later this spring or summer, if possible, to add to or complete these preliminary reports.

Will the DOE counter-sign my stipulation agreement electronically?

We are still waiting to receive DOE policy on this. In preparation for possible electronic signature, some DOE attorneys are soliciting scanned signature pages. Obviously, given the projected length of this health emergency, it is important that the DOE temporarily performs this function remotely. We continue to advocate in this regard.

My child receives SETSS, SEIT and/or related services (speech, OT, PT) from an independent provider—but they have not received those services since the schools closed. Some providers are saying that they are not yet authorized to provide services, while others are doing so. What is allowed? 

Any failure of the DOE to offer these services on an “equitable and comparable basis” to what has been offered to public school students would be inequitable and, as we see it, a violation of law. If you are our client and your child is experiencing this issue, please reach out to your attorney case manager immediately.

There have been confusing and conflicting messages from the DOE as well as from some of the agencies that provide these services. NYC public school students began receiving their related services via distance learning on Monday, March 23rd. 

Authorizations and instructions for independent (non-DOE) SETSS and SEIT providers as to how they can provide services and be paid for them were sent out Wednesday March 25th. We understand that comparable instructions for independent related service providers will be distributed soon. We will keep you posted.

Our first goal is to get everyone’s services restarted as quickly as possible, but your attorney case manager can also discuss pursuing compensatory relief for your child.

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?

The DOE website currently says: “School buildings are scheduled to reopen to students following Spring Recess on Monday, April 20, 2020.” We all hope this is possible, however, it is clear that this situation is very fluid and that it is prudent to plan for this timeline to extend.

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.

Is New York State poised to radically defund local school districts?

Governor Cuomo is proposing devastating cuts to education funding in the final State budget this week. These are extraordinarily difficult times, but we agree with our colleagues at Advocates for Children (and other educational advocacy groups throughout New York State) that these extreme cuts would magnify the already outsized impact of the school closures on students with disabilities and other marginalized students. 

We encourage all of our clients to reach out to their state elected officials about this important issue. Advocates for Children has a form letter you can use and edit to make your own.

Download and Complete a NYS Health Care Proxy Form

On March 4th, Skyer Law proudly announced that Valerie Zaloom Buccino, an attorney with over 26 years of experience in Wills, Special Needs Trusts, Guardianships and Estate Planning, joined our firm.

It’s hard to believe it was only a few weeks ago, but since then our world has shifted and we are all facing new worries and concerns. We are receiving a large number of inquiries about Valerie and her services, not only from our clients, but also from grandparents of our children and families outside our client community. In response, we are planning a free teleconference in early April to answer some of your most pressing estate planning questions specific to this health emergency; the date and how to register will be announced in a future email and on our blog.

In the meantime, Valerie wants to make sure that our clients know about one important thing that we can all do right now—completely free and without the need for a legal consultation: Download and complete a NYS Health Care Proxy form.

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Helpful Information About Health Care Proxy Forms

by Valerie Zaloom Buccino

A Health Care Proxy is used to appoint someone you trust to act as your agent in making health care decisions for you should you ever be unable to make decisions for yourself. If you become incapacitated, hospitals and doctors must follow your agent’s directions as if they were your own. It can also be used to document your wishes with regard to organ and tissue donation. A New York Health Care Proxy will be honored in most other U.S. states. 

You may designate any competent adult to be your agent and alternate agent. But before you designate any person, make sure you discuss this choice with them and that they understand and are comfortable carrying out your wishes. 

The form also gives you the option of appointing an alternate agent in case your first agent is unavailable or unable to act. Given the current situation, in which many household members may become ill, I strongly recommend designating an alternative agent. It is wise for one of the two agents to not be currently living in your home. Make sure that each person you name gets a signed copy of the document (emailing a scan is fine for now). If you change your mind about any of the details, simply notify your agents and/or complete a new health care proxy form.

You do not need a lawyer to fill out a NY Health Care Proxy Form, and it does not need to be notarized. However, New York State law requires that it be witnessed by two people who are not among the agents you name.

It is my belief that due to this extraordinary health emergency, witnessing a Health Care Proxy via video conference will be acceptable. This should be done in a manner similar to the instructions provided in the Governor’s Executive Order concerning notarization of documents. However, if you are able to arrange for two people who are not the people you named as agents to safely witness your signature, then do it in person. If the logistics of witnessing are unsafe or impossible at the moment—complete the form and sign it anyway. (It is quite possible that in the coming days and weeks, the Governor’s Office will use his emergency powers to clarify how to properly execute these documents while abiding by social distancing requirements. We are tracking this closely. However, making your wishes known shouldn’t wait. When this health emergency ends, you can re-execute the document in the usual way. 

People Over Age 18 with Developmental Disabilities & Health Care Proxies

If you have an adult child with developmental disabilities and you do not have a guardianship order in place that provides for medical decision-making, then your child (and any other adult children you have) should also complete their own health care proxy form, if possible. 

New York State law says that adults must be “competent” in order to execute a Health Proxy Form, meaning that they must be able to understand what they are signing. This doesn’t mean they need to understand every legal term or implication—most people don’t. It means that they must be able to understand that they are giving permission for someone they trust to make decisions for them concerning their health, if they cannot.

However, if your adult child is unable to understand the form well enough to sign it, the NY Family Health Care Decisions Act still provides for a rank-order list of who can make medical decisions: the incapacitated person’s guardian; spouse or domestic partner; adult child; parent; sibling; or close friend. The reason we prefer not to rely on this is that even if you, the parent or guardian, are “first” on this list, the authority of someone acting without a health care proxy is more limited.  If you are in this situation, a lawyer like me should discuss guardianship with you at another time.  

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 Valerie Zaloom Buccino has 26 years of experience in estate planning, special needs trusts, and guardianship legal services. Her particular expertise is working with families with special needs children. To schedule a consultation, please call 212-532-9736 or email Ben Foley at info@skyerlaw.com Consultations are free for current/active clients. 

A Message from Regina Skyer

As we embark on this new experience of distance learning, I wanted to personally write to you. My thoughts and prayers are with everyone. If you are ill, I am praying for your speedy and complete recovery; and I am praying for good health for the rest of us, and the strength and wisdom to get through this.    

Last week, my staff and I worked directly with the private special education schools in the NYC area. We answered questions, made sure that each school’s distance learning plans were well thought out, individually designed, and ready to be implemented. We don’t yet know how the Department of Education will react to these programs, but in my opinion “our schools” are very prepared and have designed outstanding programs that will be viewed as models of what distance learning should look like. Of course, nothing is perfect and there will be hiccups and glitches along the way, but each school is more than ready, willing, and able to assist parents and students through this.

I believe there are certain proactive or “best” practices that parents and caregivers can implement that will not only assist their children in the weeks ahead, but will help our lawyers and paralegals in their ability to get tuition reimbursement at the best possible rate. 

Here are some concrete suggestions:

1) Start a Journal:  Every day that your child receives distance learning (aka “remote learning”), make an entry. For example: “March 23, 2020: Sophie attended a Zoom class this morning and was able to interact directly with her teacher and her classmates. They worked on ELA (English Language Arts) and math.” This journal entry is also your own record of attendance. You can certainly develop a shorthand.

2) Take Photographs: Periodically take a snapshot on your phone as your child is engaging in distance learning. Also photograph any independent projects they are working on.

3) Portfolio: Put every piece of your child’s work in a box – date it and file it away - one box for each child if applicable. You can also put in their drawings, poems, essays, letters, emails and anything else you might use to demonstrate “work.”

4) Independent Learning/Projects: If your child undertakes any independent learning or projects, keep your teachers/school advised of this. If this is done under the supervision of the school and with their guidance, this can sometimes be additional justification for reimbursement.

5) Save Correspondence: Keep copies and records of all correspondences with teachers, related service providers and other school staff.

In the weeks ahead, there will be a lot to adjust to and I know you will all be very busy. But as you find your way, please be on the lookout for correspondence from the CSE. If you are called for a CSE review meeting, follow our directions and agree to remote conferences if they are requested. Provide your email and cell phone numbers.

There are many questions and concerns about children who will not be able to engage in distance learning due to their specific challenges. We will address this in a future FAQ. We are seeking specific guidance from the DOE concerning this problem.

We will also be updating our clients on an individual basis on the status of their settlements, focusing on outstanding monies from the prior school years and negotiating the current 2019-2020 year. We are sensitive to the financial pressure that everyone is experiencing and anticipating. Be assured that our entire staff of lawyers and paralegals are working all day long with this as our primary goal.   

We are able to electronically deposit your settlement monies as they come in. We will call you to discuss how you prefer to receive money.

I am sending you all my continued prayers. If ever there was a time to be our “brothers’ and sisters’ keepers” it is now…

 -Regina

UPDATE to FAQ for Skyer Law Clients

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

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

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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.

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.

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I have received a stipulation agreement from the DOE to settle my case. I have signed it, but I don’t know how to get it back to you safely. What do I do?

Scan and email it to us and put the physical copy in the mail as soon as you are safely able to do so.

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I need to scan documents to my attorney but I don’t have a scanner at home. Can I take a photo? 

If you don’t have a scanner at home right now, the next best thing is to use a scanning app on your phone. There are a lot of very good ones out there, but many of us use Adobe Scan (Apple App Store/Google Play) and Microsoft Office Lens (Apple App Store /Google Play).

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My child’s disabilities are severe. I need respite. What are my options?

This is a critical issue for many of our clients and we want to share resources with you as we become aware of them.

First, for those of you who have access to respite services through the New York State Office of People with Developmental Disabilities (OPWDD) and/or HCBS Medicaid Waiver, call your care coordination agency or (for self-directed Waiver participants your Fiscal Intermediary) and make sure you have access to all respite options that are currently available through those funded sources. We have heard that at least one Fiscal Intermediary has advised its clients that Direct Service Providers (DSPs) are considered essential workers. Visit NYS OPWDD’s website for updates.

We are also very pleased to share that an excellent Westchester special education private school that we work with, Shrub Oak International, will begin offering respite care on April 1st in strict accordance with NYS Department of Health guidelines. This is a residential 1:1 respite program, not an educational program for tuition reimbursement. Below is text from an email announcement late Friday.  For more information, contact Lauren Koffler at (914) 885-1995 or lkoffler@shruboak.org.

Shrub Oak International School understands that caring for your child during this uncertain time can be difficult and we would like to help. Beginning April 1, we will open our doors to you and your family for respite care. As classes are not currently running, this would be for our residential program. Your child would enjoy 1:1 support and engage in activities such as art, yoga/meditation, hikes and more. The rate is inclusive of room and board, meals, activities and supports.

Please reach out if you are interested in obtaining more information on this program and student qualifications. As is our policy, Shrub Oak will continue to take all recommended measures in accordance with New York State Department of Health guidance to screen all students and their parents entering this program.

Weekly Tuition: $6,500
Two week minimum required

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Are residential therapeutic programs still admitting students?

Two educational professionals we work with, Brad Hoffman and Faya Hoffman of My Learning Springboard, have been in regular contact with therapeutic programs from across the country. They tell us: 

Many therapeutic programs are still open and admitting new students while taking extreme precautions to protect their existing student bodies. They are working with their state government agencies to take the appropriate precautions and to follow local health department regulations, which continue to evolve. Generally speaking, these programs are limiting or restricting visits on campus for parents as well as restricting non-essential visitors. For prospective families, they have largely moved to virtual tours.

A few therapeutic wilderness programs have ceased admissions at this time for new students.

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How do I contact the CSE if I need to—are their offices open?

According to a March 20th, update to the DOE website: 

“…[T]he CSEs are shifting to a remote practice. Remote practice in the CSEs will provide an opportunity for students and families to remain connected and engaged with their evaluation and IEP process while participating from locations outside of the physical CSE offices from March 20, 2020 through April 17, 2020 as of now, due to COVID-19.”

Visit 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.

Does the federal stimulus bill suspend or permanently alter my child’s rights under the Individuals with Disabilities Act (IDEA)?

There is no language in the federal stimulus bill that will change any provision of IDEA. Your child’s rights will remain the same when and if this bill, as currently drafted, is passed.

However, the bill includes a provision asking U.S. Secretary of Education Betsy DeVos to send a report to Congress in 30 days recommending whether states and school districts should be allowed to waive any requirements of the IDEA.

While we don’t know what Secretary DeVos may recommend, this is not a time to weaken laws that protect society’s most vulnerable citizens. To the contrary, this is precisely the time to do everything in our power to make sure that our children are not left behind.

Please email your Congressional representatives expressing your concerns.  Advocates for Children has helpfully set up an online form that makes this a 60-second task using already-drafted language that you can use or edit as you please.

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IS MY IEP MEETING CANCELLED?

3-17-2020: Your IEP meetings (including turning five meetings) have not been cancelled, unless someone from the CSE contacts you to say so. Please get their name and email so that you can email them back to confirm your conversation with them.

If a CSE representative gives you a choice to postpone or to participate in the meeting remotely, you should agree to do the meeting by phone—circumstances permitting. Failure to cooperate with the CSE may jeopardize a future settlement or impartial hearing.  

If you receive a notice asking to do a CSE meeting remotely, we generally advise that you consent to this. Send an email indicating your agreement and provide your phone number. If there are extenuating circumstances that you are concerned about, speak to your attorney.

If you planned to have providers, clinicians, or an attorney attend an upcoming IEP meeting, make sure everyone confirms their availability to participate. Provide any call-in information from the CSE team to those people and/or provide the CSE with their contact information.

Update 3-19-2020: We have been told that some CSE regional offices are closing their buildings temporarily so that staff can work remotely and safely. Some IEP meetings will be postponed as a result. This may also extend to IEP meetings for our Turning 5 or public school parents, which are normally held by the locally zoned community school’s School-Based Support CSE team.

If you have an IEP meeting scheduled, check in with the person who scheduled it. Forward details about that communication to your attorney as we described above.

Reach out to your attorney if you are unable to reach anyone regarding a scheduled IEP meeting.

Update 3-21-2020 – The CSEs are shifting to remote practice as of March 20, 2020 through April 17, 2020. Visit 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.

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THE DOE SCHEDULED TESTING FOR MY CHILD AT ONE OF ITS CSE OFFICES. I AM AFRAID TO BRING THEM IN FOR TESTING BECAUSE OF HEALTH CONCERNS. WHAT CAN I DO?

3-17-2020: If you are in this situation, reach out to your attorney about your circumstances and we will help you draft a letter. But generally speaking, your family’s health must come first. 

It is very important to properly document why your child cannot come in for testing and to provide consent for any remote testing the DOE may offer instead.

Update 3-19-2020: We have been told that some CSE regional offices are closing their buildings temporarily so that staff can work remotely and safely. Some scheduled testing may be postponed as a result, but we have not received formal guidance. Please check in with the person who scheduled your child’s testing at the CSE. Forward details about that communication to your attorney.

Reach out to your attorney if you are unable to contact anyone regarding your child’s scheduled testing.

Update 3-21-2020 – The CSEs are shifting to remote practice as of March 20, 2020 through April 17, 2020. Visit 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.

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MY CHILD DOES NOT HAVE AN IEP AND I HAD PLANNED TO REQUEST A CSE REVIEW. IS THAT STILL POSSIBLE?

3-17-2020: Yes, we believe so. Make the same request for your child to be evaluated and for the CSE to hold an IEP meeting as you would have done prior to this health emergency.

If you came into our office for a consultation this year we likely provided you with draft language for your referral letter. Please add the following language before you send your letter or follow up to add this language:

 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 and my email address.  Please notify me of all meetings by email.

Update 3-19-2020: We have been told that some CSE regional offices are closing their buildings temporarily so that staff can work remotely and safely. Some IEP meetings will be postponed as a result. This may also extend to IEP meetings for our Turning 5 or public school parents, which are normally held by the locally zoned community school’s School-Based Support CSE team.

If you have an IEP meeting scheduled, check in with the person who scheduled it. Forward details about that communication to your attorney as we described above.

Reach out to your attorney if you are unable to reach anyone regarding a scheduled IEP meeting.

Update 3-21-2020 – The CSEs are shifting to remote practice as of March 20, 2020 through April 17, 2020. Visit 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.

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