If I decide to provide my child with home instruction for the 2020-2021 school year, and not re-enroll in a public or independent private school and choose not to seek DOE public school placement or tuition reimbursement for this year, what are my rights and entitlements if I come back to NYC the following 2021-2022 school year?
It is your absolute constitutional right to home school your child. However, there are several steps you should take if you decide to do this:
(1) Notify your school district that you will not be accepting the IEP and the program recommendation from NYC for the 2020-2021 school year because of your intention to remain out of the city and home school your child. Your attorney will draft that simple email for you and provide you with an appropriate email address where it should be sent. There may be an obligation in the stipulation of settlement that you have entered into to do this. For some of you, you might want to seek Special Education Teacher Support Services (SETSS) during this period. If so, this request has to be in that letter. Again, speak to your attorney and let us help you draft this email.
(2) To assure that you are not educationally neglecting your child, be sure to follow the regulations for registering as “home schooling” https://www.schools.nyc.gov/enrollment/enrollment-help/home-schooling. You can file this with NYC or if you have moved to another district you may file it with that school district. Unless you are giving up your permanent residence in NYC with no plans of returning, file this with NYC.
(3) Have a serious and heartfelt conversation with your child’s school. There is no guarantee that they will re-accept your child. However, most schools will and are working very hard to assure your child and family’s best interest.
(4) By March 15th, 2021 make an appointment to speak with your lawyer so that we can assist you in re-opening your case to the Committee on Special Education for the 2021-2022 school year. There is a good chance that you will need an update from your independent neuropsychologist – so schedule this for early April. We will help you draft a referral letter to re-open your case and we will strategize to put you in the best possible position whether you are looking for a public special education program or if you have continued concerns about the appropriateness of a public school program and want to reject the IEP and CSE recommendation and unilaterally place your child back at the independent school.
For the 2020-2021 school year my independent school is offering the option of full-time remote learning. If I choose this option will it hurt my case for tuition reimbursement?
We do not believe that you will be disqualified from suing for tuition reimbursement if you choose full-time remote learning for your child. The DOE is offering this same option to students attending public schools. In our opinion, this opens the door for parents at private schools to choose this same option.
The legal theory for all tuition reimbursement cases comes from two U.S. Supreme Court Cases (Burlington 1985 and Carter 1993. These cases established what is referred to as the three Prong Burlington/Carter test of tuition reimbursement. PRONG ONE – has the school district offered the child a free appropriate public education; PRONG TWO – is the program that the parents chose reasonably calculated to confer a benefit to the child; PRONG THREE- Equitable Considerations – does the parent have “clean hands” – has the parent done anything to thwart the process? This test remains in place.
If the DOE creates an appropriate IEP and makes a program recommendation that could confer a benefit to your child, they will have satisfied the PRONG ONE requirement and a parent will not be eligible for tuition reimbursement. However, if the DOE fails prong one, the parent must then prove that the private school they chose is appropriate and conferring a benefit. This is where the remote learning plan will become examined and perhaps challenged.
This still remains unchartered territory as to how the DOE will treat the remote learning plans for the 2020-2021 school year. At impartial hearings, the judges have been overwhelmingly impressed by these plans for the period from mid-March 2020 through the end of June 2020.
I have an agreed to and fully executed stipulation of settlement for the 2019-2020 school year, but the DOE has still not paid me for March through June 2020, why is this and will they pay?
The DOE asked all of the independent special education schools to submit their remote learning plans for DOE approval. The schools complied with this request and promptly submitted their plans.
However, before the DOE will pay any tuition reimbursement for the months of March through June 2020, these remote learning plans have to be officially approved by the DOE legal department. At this time (July 31, 2020) there only some NYC independent private schools have a blanket approval for their remote learning plans and there are a number of additional schools where there is case-by-case approval. The rest of the schools have been asked additional questions by the DOE. All have submitted their answers and are still waiting for the DOE final stamp of approval. We are tracking this on a daily basis and remain in touch with all of the schools.
Do you think the City will stop tuition reimbursement?
The quick answer is NO we do not believe that NYC will simply stop paying on tuition reimbursement cases. The right to sue for tuition reimbursement was granted to parents in two United States Supreme Court Cases: The first in 1985 - Burlington School Committee v. Massachusetts Department of Education, 471 U.S. 359, and the second in 1993 - Florence County School District IV v. Shannon Carter, 510 U.S. 7. These cases give parents the right to sue for reimbursement. There is no automatic entitlement to reimbursement; there is no ‘reimbursement program’; there is simply the right to sue for this remedy.
The only way that tuition reimbursement for parental placements at independent schools would come to a halt is if there is another Supreme Court decision that changes or removes this right, or there are new federal laws enacted. Both of these situations are highly unlikely. It takes many years for a case to reach the United States Supreme Court. Our lawyers monitor all of the federal special education cases and there is no such case pending in any of the lower circuit courts. It is also highly unlikely that Congress will pass a new special education law.
I strongly encourage all parents to join the Council of Parent Attorneys and Advocates (COPAA.org). This nationwide organization is your lobby group and watchdog. We have been longtime sponsors of this organization and Jesse Cutler is on their Board of Directors. If there was any potential threat to this right to sue, COPAA would be the first to mobilize and protect you.
Suing the NYC Department of Education for tuition reimbursement is referred to as a Due Process Impartial Hearing. As in any lawsuit, there are three possible outcomes: Win (the plaintiff – in this case, the parents - get everything they want); Lose (the parents get nothing) or Settle (the parents get something between all that they wanted and receiving nothing). Prior to 2014 the average amount of tuition received by a parent on settlement was between 75-80 percent of the cost of tuition. It is only since Mayor DeBlasio’s administration that the amount of settlement rose to 90 – 100 percent of the tuition costs.
What we believe parents have to be prepared for, given the tough financial times that the city is facing, is a reduction in their settlement offers. Generally, when a parent is not satisfied with the amount of settlement being offered, they can proceed to an Impartial Hearing. When a parent does this, the settlement offer is completely off the table and parents find themselves back in that nerve racking place of all or nothing. Even when a parent wins at a hearing, the DOE can appeal the decision to the New York State Education Department. The State Education Department is not parent friendly, and we believe there will be far more appeals and increased losses to parents. The key here is going to be reasonableness.
The one thing that COVID 19 has taught me is that there is no certainty. We are tracking and monitoring the legal aspects of special education on a daily basis and will update you with any important news.
