Rubber Rooms

The impetus for this post is the article on the front page of today's New York Times suggesting that NYC's "Rubber Rooms" are still alive and kicking.  Cathie Black is going to have her hands full with issues like dealing with the teachers unions, deciding what to do with failing schools, addressing why special education services are being cut as the number of students needing them continues to rise...but one of the foremost issues that she is going to have to deal with is, How in the world can you justify the continued pay of teachers who are "in limbo" as the New York Times says, or prohibited from teaching because there are charges pending against them.  President Obama is looking every which way to save money and reconcile the budget deficit as is evident in his recent announcement to freeze the pay of federal employees.  NYC needs to take a look at itself and if we're spending $30 Million a year in salaries to teachers who are not teaching, maybe NYC can save a few bucks there.  How did this weird arrangement even come about?  Because of the existing contract between NYC and the teachers union which Back is going to have to fix.  Maybe her private sector experience will give her the objective perspective do that.  What if the contract said instead that no teachers who have charges pending against them will get paid during that time but any teacher who is cleared of the charges and reinstated to a teaching position will receive backpay?  Anyway, today's article suggests that Bloomberg may have eliminated the rubber rooms themselves but not the essence of the rubber room problem and this is a ridiculous situation that needs to be corrected fast.

Cathie Black Gets The Green Light

After a bumpy ride, it appears that Cathie Black will be the new chancellor.  When Commissioner Steiner's advisory team met last week they expressed serious doubts about her lack of educational credentials, resulting in something of an ultimatum from Commissioner Steiner to Mayor Bloomberg: find someone with the requisite educational credentials to serve as sidekick to Ms. Black or find another chancellor.  The New York Times announced yesterday that an agreement had been reached and a top education official, Shael Polakow-Suransky, would be named Ms. Black's chief academic officer.  Ms. Black is expected to receive a waiver and take over for Joel Klein as of January 1, 2011.

Amendments to the Commissioner's Regulations

Recent amendments to the New York State education regulations will take effect December 8, 2010. 

Speech and language services:  Some of these amendments have stirred up a bit of controvery, such as the elimination of the minimum speech requirements for (a) students with autism and (b) students who have language disabilities.  The old regulations required that "instructional services shall be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six."  The highlighted portion is being eliminated and students with autism are not guaranteed any minimum level of services.  The change is unsettling because (1) the public schools, which are horribly unequipped to properly educate children with autism, should be looking to enrich their education rather than take away from it, and (2) it has been suggested that this reduction in services is the result of fraudulent activity emanating within the New York State Education Department regarding the delivery of speech services, and the consequences are now being felt locally in the city schools.  In addition, the amended regulations which previously provided for a minimum of two 30-minute sessions each week to those students whose disabilities necessitate speech and language services, have now done away with that requirement.

Integrated Co-teaching (ICT, CTT, Inclusion):  Typically in this type of class 60% of the students are general education and 40% are special education which would mean that in a class of  24 students, 14 students would be general education and 10 would be special education.  Under the current version of the regulations, "the number of [special education] students in such classes shall not exceed 12 students."  Under the amended regulations it seems that this number could presumably jump to 14 students.  That suggests a larger clas, which would be in line with the current trend of growing class size in NYC public schools.

Other changes include: eliminating the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) and replacing it with the NYSED's Office of Counsel and Office of Special Education; providing that a CSE meeting absolutely "does not include informal or unscheduled conversations with school personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision"; and changing the name of the Office of Mentally Retardation and Developmental Disabilities (OMRDD) to the Office for People With Developmental Disabilities (OPWDD).

Special Education After High School

We need more programs like the one started in Arizona to provide resources for individuals with special needs post-high-school.  Apparently, this program called Project FOCUS is geared toward people with various learning disabilities to offer them the college experience, an area not covered by the IDEA which usually stops at high school graduation.  Although it would not be a "full" college experience because the funding only applies to several classes and does not cover the student through graduation, it is a great step in the right direction.  Some points that need to be clarified: What type of special education support do these students receive while taking these classes?  How are they grouped?  Specifically what types of students are eligible and ineligble for this program?   

Advisory Panel Formed To Determine Cathie Black's Fate

Education Commissioner David Steiner costructed an advisory panel to help him determine whether Cathie Black should be the next chancellor.  This team will decide whether to grant the waiver that would be necessary in order for her to take over since she lacks the usual credentials and experience that under New York State law a chancellor should have.  They are expected to meet formally tomorrow.

Appropriateness Of Private Placement

Parents placing their children in private school and seeking reimbursement have to show that the private school is appropriate for their children and an issue that always comes up is how do you show that it's appropriate.  Do you have to show that the child made actual progress or is it enough to show that it was reasonable that the child would make progress?  This question is clearly answered in G.R. v. New York City Department of Education, involving a boy with learning disabilities and speech and language impairments who was not offered FAPE by the school district and was therefore enrolled in Winston Prep.  The parents commenced a hearing in October (just after the start of the school year) seeking reimbursement but the IHO denied that request believing that there was not sufficient evidence of the child's progress.  The parents did not have any luck in their appeal to the SRO and the case was appealed again, making its way up to the U.S. District Court for the Southern District of New York. 

The district court explained that the IHO applied the wrong legal standard because parents do not have to show that the child progressed at the private school, only that the private school program was properly designed to allow the child to make progress.  This is significant because, otherwise, any parent who reasonably enrolled his/her child in a private school that seemed suited to the child's needs would be denied reimbursement if the child didn't actually make progress.  Here the court is basically saying that if the parents make a reasonable, well-informed decision and place their child in a school that is tailored to meet the child's needs and likely to result in educational progress, that's good enough.

Summary of SRO Bentley Decisions So Far

Without going into the specific details of the cases here, this is an overview of the existing decisions from SRO Bentley:

SRO 10-069: Agreed with IHO and determined that school district offered FAPE

SRO 10-070: Overruled IHO's award of reimbursement and determined that the school district offered FAPE because the program it recommended was appropriate and the parent's alleged procedural violations did not rise to the level where relief under the IDEA would be warranted

SRO 10-073: Overruled IHO's award of reimbursement and determined that the school district offered FAPE

SRO 10-076: Agreed with and upheld IHO's denial of reimbursement and held that the program offered by the district was appropriate and parent's alleged procedural violations did not rise to the level of a denial of FAPE

SRO 10-079: Overruled IHO's award of tuition reimbursement and held that the school district offered FAPE

SRO 10-081: Dismissed the appeal as untimely and didn't not reach the merits of the case

SRO 10-094: Overruled the IHO's award of reimbursement and ruled that the school district fulfilled its obligation

More Layoffs At Department Of Education

Mayor Bloomberg announced more layoffs at the NYCDOE in response to the city's $3.3 billion budget deficit.  It is not yet clear who specifically will be laid off -- teachers, administrators, principals?  In any event, it is not good news for the many many people relying on the DOE to educate their children.  The DOE is understaffed as it is and they already don't pick up their phones.  They've already cut special education services in the public schools and they lack enough related service providers to work with the students who demand these services.  The DOE is giving parents hell at IEP meetings even where the need for services is pressing.  Bloomberg says we're going to have to "do more with less" but how deep can you cut in an agency that is already bleeding.    

SRO Bentley Decisions

SRO Bentley has written several decisions since assuming his interim position.  In Appeal No. 10-069 and Appeal No. 10-094 he concludes that the school district offered FAPE.  In 10-069, the decision seems pretty well-reasoned and it appears that the parents may have been set on their school of choice in spite of a solid recommendation from the DOE.  In 10-094, however, Bentley has to overrule the IHO decision and make a couple of bold moves in order to get to reach his conclusion.

The facts in 10-094 are interesting.  A CSE meeting took place on February 24, 2009 to develop an IEP for the 2009-2010 school year.  The child had been at Mary McDowell, a private school, every year since the 2004-2005 school year.  In fact, the parents had signed on for the 2009-2010 school year as well when they signed the tuition contract on February 6, 2009.  They failed to share this fact with the CSE when they convened for their meeting on the 24th.  For some reason the IEP was not delivered to the parent until the middle of April, and the DOE did not send out a school recommenation until the middle of August.  Normally, a parent would go down to the proposed school to "check it out" - tour the school, see the class, meet the teacher, observe the other students.  Instead of doing that right away the parents waited until December.  There is no evidence that they made efforts in August, September, etc. to call the school and set up a visit, so they probably went in December just to look good for their upcoming hearing.  Here's the twist - when she arrived at the school they would not let her see the classroom.  It's pretty standard for the parent to expect that when she goes down to the school she will get to see the classroom and will take that into account in determining whether the program is appropriate, but that didn't happen here.

The IHO was sympathetic to the parent and determined that it was a denial of FAPE for the DOE to wait as long as it did to send the school recommendation and then to deny the parent access to the classroom.  The SRO, however, didn't like this at all and reversed the IHO's determination, asserting that: (a) the district's delay in recommending the placement was not a denial of FAPE because it was still prior to the first day of classes; and (b) the lack of an opportunity to visit the proposed school prior to the start of the school year and their inability to visit the classroom did not rise to the level of a denial of FAPE.  The first point is understandable but the second point is unsettling.  How is a parent to know whether a recommended school is appropriate for her child if she cannot see the school and observe the class?  This may be the SRO's way of saying to the parent, "You shouldn't have waited until December and that leads me to conclude that you had no interest in placing your child there," but such a blanket statement (irrespective of the authority cited) that a parent does not have a legal right to see the proposed school and classroom is very concerning.

Teacher Assessments

The recent suicide of a Los Angeles teacher has stoked the heated debate about teacher evaluations and teacher accountability.  This teacher was labeled "less effective than average" when the Los Angeles Times released teacher performance data, and it is suspected that his sub-par rating contributed to his death.

How to evaluate teachers has been an especially hot issue lately.  In New York, Mayor Bloomberg tried to disseminate this same type of information but the teachers' union took him to court over it.  So what's the deal with teacher assessments and how should they be conducted?  The benefit of value-added assessments is that they offer a look at how a teacher's performance has affected student progress.  A pitfall is that it is a one-dimensional analysis that leads teachers to "teach to the test."  Many people agree that teacher assessments should be composed of a number of different factors, not just value-added assessments, but what these factors should be is not so clear.  Perhaps some of the following would be helpful factors: (1) how are the students in this classroom doing (i.e. exams, homework, other assignments); (2) what are the students' impressions of their teacher (e.g. does she motivate them to want to learn more); (3) are the students able to have an intelligent conversation/debate about the material; (4) has the teacher been observed in the classroom on a regular basis by a professional and does that professional conclude that she is teaching effectively; (5) does the teacher bring the material to life with other tools (e.g. visual learning aids, auditory aids, class trips, experiments); (6) can the students generalize this knowledge to the everyday real world.  These are just examples of some of the important points that could and should be addressed.

Without commenting on the benefits of effectiveness of teachers unions, I have three major issues with what teachers unions represent: (a) they firmly oppose changes to the tenure system (which have proven to be more of a means of protecting bad teachers than rewarding good ones); (b) they won't entertain changes to the pay scale which could mean significantly better salaries for effective teachers; (c) they are against the release of public data on teacher performance and teacher accountability.  With respect to this last issue, the teachers' unions claim that reliance on value-added assessments hinder efforts toward comprehensive teacher evaluations.  Randi Weingarten claims that the union has "proposed a comprehensive system of teacher evaluation that more than 50 districts have adopted."  If that is the case, perhaps they could share with the rest of us what that so-called comprehensive system involves...

Section 504 Revisited

A recent federal case in Washington D.C. illustrates a distinction between the IDEA and Section 504.  As a brief background, the case was brought by the parent of a girl with special needs against the District of Columbia, D.C.'s then-mayor Adrian Fenty, and D.C.'s then-schools-chancellor Michelle Rhee under both the IDEA and Section 504.  The parent alleged that the district failed to properly identify her daughter's issues in a timely manner and failed to provide the right educational support.  She claimed that Section 504 requires "substantial procedural compliance with all procedural and substantive rights under the IDEA" and that the district had violated both the IDEA and Section 504 by failing to provide FAPE, failing to properly evaluate the child, and failing to provide an appropriate IEP and placement.  It seems like the parent just lumped those two pieces of law together and, as described below, the district court stepped in with some clarification on the issue.  

In this case, Holmes-Ramsey vs. District of Columbia (D.C. District Court, November 2, 2010), the court said that in order to state a claim under Section 504, the parent has to show that the child was discriminated against solely because of her handicap.  BUT, in order to make out a Section 504 claim in the context of an IDEA case, the parent must show that the district acted in bad faith or with gross misjudgement.  It's not exactly clear what would make it an "IDEA case" per se.  But in such a case, it is not enough just to show a failure to provide a FAPE under the IDEA.  You need to show something more than that to make out your 504 claim.  One might say: "If anyone who has protections under the IDEA has the same protections under Section 504, it should be enough just to show a violation of IDEA to make out your 504 claim."  Unfortunately it doesn't work that way.  The correct way to think about it is that the IDEA is made up in part by Section 504 and in part by other stuff, and showing a violation of "FAPE," for example, which is guaranteed under the IDEA but not under Section 504, is not necessarily a violation of Section 504.  Section 504 is a discrimination statute intended to protect individuals with disabilities being treated differently because of their disabilities.  But it doesn't say anything about ensuring that a child with a disability will get an educational program that is specially designed to meet his/her unique educational needs -- that's the IDEA's job. 

Cathie Black Set To Take Over As Chancellor Of NYC Public Schools

If Cathie Black's appointment as successor to Joel Klein as chancellor of the NYC public schools came as a surprise to you, you're in good company because many of the important people at the DOE didn't know about it either.  The choice of Cathie Black as the next chancellor is surprising.  For the most part Cathie Black has zero experience in the world of education (the closest she comes is that her husband is a lawyer for an organization called Institute of International Education).  My first instinct can be summed up by a quote in the Wall Street Journal by someone who eloquently said that you don't want someone who has never steered a ship to be your captain when you are traveling across the ocean in rough waters, which is such an appropriate analogy because these are some rough times.  Klein didn't have much education experience either so you start to see a pattern with Bloomberg's selections.   

New York City's public school system is the largest in the country with a reported 1,600 public schools and 1.1 million students.  Those are some big numbers.  And what does Ms. Black know about running a school system?  I get that she's a "superstar manager" as Bloomberg puts it, but how is that going to translate into fixing the major problems that are currently plaguing our school system.  You question whether she has ever even been inside a public school and whether she knows anything about how the system works.  And what perhaps is more concerning is what her relationship is going to be with the unions.  "I've had limited exposure to unions," she said.  Well I hope you have some innovative ways of dealing with them because they are kind of standing in the way of progress and reform.  What does it mean when the president of the UFT offers to "help her" - is that some type of overture? And how much longer are the teachers' unions going to continue putting their needs before childrens' needs while claiming that they are putting children's needs first?  I'm not ruling out that Ms. Black can effect positive change - but I hope she understands the magnitude of the job she is taking on.

D.G. vs. Cooperstown Central School District

A recent federal court decision touches on a number of interesting issues.  In D.G. vs. Cooperstown Central School District (U.S. District Court, N. Dist. of NY; October 29, 2010), the parent appealed lower decisions by the IHO and SRO who both determined that the school district had provided FAPE and denied tuition reimbursement for the child's residential school.  The parent was seeking reimbursement for both the 2007-2008 and 2008-2009 school years.  The main issues raised by the parent in this case were: (1) there were no "baselines," or clear indications of the child's present levels of performance; (2) resource room services were inappropriate because they were to be delivered in a "mixed setting," meaning that they could be delivered inside the general education classroom; and (3) the district did not provide the Wilson Program, an Orton-Gillingham based multi-sensory, direct instruction reading program for dyslexic students (even though they appear to have promised that they would).  

Unfortunately the parent's arguments were rejected.  For the 2007-2008 year, the district court stated that there were baselines because the 2007-2008 IEP took into account the most recent testing that was available, the child's various teachers and evaluators participated in the meeting and identified present levels of performance which were included in the IEP, and there were clearly written goals which provided directions about the baselines to measure progress. 

Regarding the parent's second point, the court didn't find it problematic that part of the resource room instruction was happening in the general education classroom.  It believed that it was a legitimate goal to use the mainstream setting to help the student generalize his/her skills.  The part that was confusing was the way the court reasoned through this while also quoting NY regulations saying that "specialized instruction can best be accomplished in a self-contained setting."  There was also evidence to suggest that the resource room teacher was teaching another class (a reading class) at the same time, which would cause you to raise your eyebrows. 

Finally, the court pointed out that other Orton-Gillingham based methods were available at the proposed school and the fact that the parent didn't get the specific one that she wanted -- the Wilson program -- is not enough to amount to a denial of FAPE.

These same points were basically reiterated with respect to the 2008-2009 school year and tuition reimbursement was denied for that year as well. 

It is interesting that we don't know how the child actually would have done at this public school -- could be that it would have been horribly bad and not conducive to academic progress -- but since the parents never gave it a shot, the court went based on what the schools would have been able to offer, and concluded that the school would have met his special education needs.  Pretty speculative but it is what it is.  The court concluded with these oft-repeated words: "School districts are not required to furnish every special service necessary to maximize each child's potential or provide everything that might be thought desirable by loving parents."  What a gem.    

Chancellor Joel Klein Resigns

Chancellor of the New York City Public School System, Joel Klein, has resigned after 8 years in that position.  In his place, Mayor Bloomberg has appointed a woman named Cathie Black who was chairman of Hearst Magazines and author of the book Basic Black (a guide to balancing work life and personal life).  Although she appears to have a long history of managerial experience, she does not have any type of educational background which could be cause for concern at a time like this when the educational system is undergoing serious reforms and we need a leader who understands what has failed in the past and what could work for the future.  At the same time, let's keep in mind that former chancellor of the D.C. public school system also lacked the type of experience that others would have expected her to have and she quickly tore things up in a very take-charge and positive way.  This is a pivotal development at a pivotal time and it will be interesting to watch it unfold.   

Parentally Placed Continued

School districts continue to push "parentally placed" on parents.  One CSE told a parent that the only way she could get tutoring (SETSS) for her child is if she admits that her child is parentally placed at his current school, meaning that she is paying his tuition, does not need the committee to recommend a program, and will not be filing a claim against the city.  The parent insisted and insisted that she wanted a full IEP with a formal program recommendation to help her determine what might be appropriate for her son, but the committee said they have to make sure she is not going to come back and sue them and said it is simply not possible unless she goes along with "parentally placed."  The parent refused to give in and left the meeting somewhat confused.  A few days later she received a copy of her son's IEP with a formal program recommendation including the tutoring services she was looking for.  Those things they told her at that meeting were just a scare tactic. 

SRO 10-066

Appeal No. 10-066 deals with a number of issues but mainly the issue of pendency.  The parents in this case had placed their child at the Rebecca School as of September 2007 and through the 2008-2009 school year.  An impartial hearing decision held that the Rebecca School was appropriate for the 2008-2009 school year (making it the "pendency placement").  The child then remained there through the 2009-2010 school year because the site recommended by the DOE was not a special class in a specialized school and, therefore, did not match the program recommended by the CSE and was not appropriate.  The SRO upheld the determination of the impartial hearing officer who ordered the school district to reimburse the parents for their son's tuition at the Rebecca School for the 2009-2010 school year.   

SRO Munoz also reiterated an important point regarding recoupment by the school district for money expended during pendency proceedings (which has was discussed on this Blog in a previous post re Recoupment), stating that "the current prevailing caselaw prohibits the district from recoupment of payments made pursuant to pendency" regardless of whether it is determined that the school district offered FAPE. 

Individual Educational Evaluation (IEE)

Parents always want to know if they can get the Department of Education to pay for or reimburse them for the cost of obtaining a private psychological evaluation.  Under federal and state law, a parent has the right to an Independent Educational Evaluation (IEE) paid for by the DOE if the parent disagrees with an evaluation obtained by the DOE.  Once the parent requests this, the DOE must either fight the request and show that the evaluations it did were appropriate, OR arrange for the IEE.  An IEE may be an evaluation conducted at an approved evaluation center which would be done at no expense to the parent, or the parent might obtain a private evaluation on her own and seek reimbursement for that expense.  If the law clearly sets out guidelines for achieving this, why is it actually very difficult to do?  It has to do with the fact that the district will fight you on it and the standard for showing that their own findings were inappropriate is very high and difficult to overcome. 

SRO (Munoz) decision 10-072 deals with the issue of IEE's.  The facts are a bit convoluted but the main issue was the the parents disagreed with the DOE's findings and wanted the DOE to pay for a private evaluation.  The hearing officer explained that (1) the parents must have objected to the evaluation conducted by the DOE, and (2) the type of evaluation for which the parents are seeking reimbursement must be the same as the type of evaluation done by the DOE.  There was some disagreement about whether the private evaluation obtained by the parents was a psychological evaluation or a neuropsychological evaluation, but it didn't really matter because the hearing officer ruled that the parent had not properly disagreed.  Therefore, the school district was not obligated to reimburse the parent for the private evaluation (which is somewhat weird because the facts suggest that the school district had already paid the parent $3,000 out of the $3,500 it cost for the private evaluation).  The hearing officer also relied on the principle of "res judicata" in ruling that since the parents could have brought up this issue previously and didn't, they could not bring it up now.  (In a prior hearing, the parents had initially sued for reimbursement for the private evaluation but then withdrew that request and filed it again later on.)  The SRO upheld the determination by the hearing officer and explained that "res judicata precludes parties from litigating issues that were or could have been raised in a prior proceeding." 

So parents should remember to clearly express disagreement with the DOE's evaluation and make sure that the private evaluation is the same type as the DOE's.  And more generally: if a parent has had a full opportunity to raise an issue in a previous proceeding, and the current proceeding involves the same people as the last, the parents may be prevented from raising that issue again.    

Post-Paul Kelly Era

Now that former State Review Officer Paul Kelly is gone, Frank Munoz and Robert Bentley (the interim SRO's) have taken over for the time being, and have issued a number of decisions over the last few weeks.  The next couple of blog entries will focus on the decisions so far by Munoz.  In his first decision as an SRO (Appeal No. 10-072, September 23, 2010), SRO Munoz upheld the impartial hearing officer's decision which dismissed the parent's claim for reimbursement for private psychological testing based on the principle of res judicata (discussed more fully in the next blog entry).  In his second decision (Appeal No. 10-066, October 1, 2010), Munoz upheld the determination that the parents were entitled to reimbursement for the Rebecca School.  And in his third and most recent decision (Appeal No. 10-074, October 12, 2010), Munoz upheld the impartial hearing officer's determination that the parents were not entitled to reimbursement for the Aaron School. 
 

District 75

District 75, according to the New York City Department of Education website, is a program that "provides citywide educational, vocational, and behavior support programs for students who are on the autism spectrum, have significant cognitive delays, are severely emotionally challenged, sensory impaired and/or multiply disabled," with more than 300 sites in the five boroughs and Syosset.  The purported mission of District 75 is to provide "appropriate standards-based educational programs" to students with severe challenges in a way that matches their abilities. 

Whether District 75 actually accomplishes this mission is a separate issue.  But what about the fact that of the 15,000 children turning 5 who were recently referred to District 75, only 1,000 actually belonged there?  This is straight from the mouth of a person who knows -- the new superintendent of District 75, Gary Hecht, who has been with the DOE for 30 years and was previously the deputy superintendent of District 75 before taking over as superintendent.  Mr. Hecht also stated that he wants to help the DOE with its initiative to move children out of special education private schools and back into the public schools' special education programs.  But the whole reason that parents removed their children from the public schools in the first place is that they lacked the resources and ability to properly educate these children.  If Mayor Bloomberg, Chancellor Klein, and the DOE intend to bring students back, isn't it reasonable to expect that they would make changes to and improve these public schools?  Perhaps Mr. Hecht could begin with figuring out why 14,000 students who don't belong in District 75 were referred there, and then determine what would be an appropriate setting since we know that District 75 is not that place. 

District 75 is not an actual "district" the way that term is commonly understood, but rather is a program based in various pubilc schools.  The reality is that it is a "self-contained" program which connotes a high level of segregation because it includes all students who have serious needs.  This program has become a dumping ground, to put it crudely, where school principals can dump children with special needs when they don't feel like dealing with that child's special needs. 

What Does Marijuana Have To Do With Your Child's Public Education

What does "the war on pot" have to do with your child's public education?  Well, according to an Op-Ed in the New York Times, each year 750,000 Americans are arrested for possession of small amounts of marijuana.  That means that officers are being paid to arrest these individuals, those in the legal system are being paid to arraign and process these people, and when the case goes forward, government funds are being spent to prosecute these individuals and imprison them.  These facts have been used to support the position that marijuana should be legalized in order to save money for more important government purposes, like education.  Think about all the money that could be saved if marijuana were legal, and all the revenue that would be created if marijuana were taxed, or so the argument goes. 

Putting aside your beliefs about marijuana and whether it should be legal or illegal, there's no denying that our public schools would benefit from more money.  There's also sense in the idea that if we educate our children properly now, we won't have to pay for the ramifications of their criminal behavior later.  Without getting too scientific, studies have shown that people turn to crime when they believe that the cards are stacked against them and they have no hope of advancing in society.  Despair and desperation breed crime.  So invest more money in the public schools as a preemptive strike now and nip the problem in the bud.  The question is not whether to do it but how, and the government needs to make it a prirority and figure this out.

Closing Low-Performance Schools

The New York Times and New York Post have reported that 47 New York City public schools are headed for closure due to poor performance.  Nineteen of these schools were due to close last year but those closures were put on hold, 12 were identified as the lowest-performing 5% of schools in New York, and 16 were identifed by New York City as low-performing based on its own evaluation process.  Some of these schools had a very high percentage of special education students.  It makes you cringe to think of the students who spent time at these programs because if the schools are closing down now, there's a good chance that problems existed for quite some time before that.  There are a few different possibilities for the future of these schools: (1) Phasing out -- all existing grades will be given an opportunity to graduate but no new students will be accepted so that the school gradually ceases to exist; (2) Closure -- school is closed down immediately; and (3) Overhaul -- certain elements of the program are replaced in an attempt to turn things around.  Closure would be the most drastic of these options because where will all these students go?  Before any action is taken, a series of meetings will be held at each school to give parents, teachers, and school executives an opportunity to object if they believe that the school should be kept intact.  Mayor Bloomberg has suffered the brunt of the criticism for shutting things down instead of developing a workable plan for fixing what's broken. 

Tuition Reimbursement vs. Related Services

A hot issues these days is school districts telling parents that they are not entitled to related services if they are seeking tuition reimbursement for their child's special education private school.  The districts' position is, "If you are saying that this private school is appropriate for your child, then it should have all of the services your child needs.  If it is appropriate, there shouldn't be a need for you to obtain additional services."  Based on that line of reason, school districts have in some cases refused to provide related services to students enrolled in special education private schools, and in some cases have tried to argue that the private school must not be appropriate if the child needs additional services from elsewhere.  The issue is coming up more and more frequently. 

In M.H. v. New York City Department of Education, a May 2010 U.S. District Court case in the Southern District of New York, the judge upheld the impartial hearing officer's determination that the child's special education private school was appropriate even though the school did not provide Speech, OT, or PT.  The parents were neither seeking that the services be provided by the district nor were they receiving private services and looking for reimbursement.  The child in that case was autistic and, presumably, could have benefited from those services.  Nevertheless, it was evident that the child had made significant progress even without the services and the parents were awarded tuition reimbursement.   

In contrast to M.H., there's SRO 09-119 where the parents were seeking reimbursement for the private school tuition and related services from the district as per the child's IEP.  This is distinguishable from M.H. where the parents were seeking only tuition and not services.  In 09-119, The SRO completely denied tuition reimbursement because the child required services which the school did not offer.  The student received counseling, speech, and OT but those services were funded by the school district through Related Service Authorizations.  The parent did not at any point dispute the appropriateness of these services.  Based on this, the SRO ruled that that parent did not prove that the private school met the student's needs in the areas addressed by the related services of counseling, Speech, and OT.  Tuition reimbursement was denied in its entirety.    

The SRO decision was decided in December 2009 by Paul Kelly who we know has since resigned.  District courts have overruled a number of his decisions in recent weeks since his resignation.  SRO 09-119 is currently being appealed in federal court and a decision in that case should help clarify the picture. 

Parentally Placed

What does it mean when a CSE or CPSE indicates that your child is being "parentally placed" at a particular school?  Many parents fall into this hidden trap unwittingly.  Essentially this is a way for the committee to take an easy way out, a loophole, and avoid having to give you a program recommendation.  Under federal law, a free appropriate public education means special education instruction (i.e. the program recommendation) and related services.  When a parent says that she is keeping her child in a private school, the committee takes that to mean that you are not interested in a program and are only interested in related services.  The team sometimes tries to coerce those magical words out of parents' mouths.  They will indirectly ask you if your child is currently in such-and-such private school, and many parents innocently say yes, not knowing the ramifications of that kind of statement.  The CPSE/CSE has a vested interest in doing this because (a) it reduces their obligation to the parent since they don't have to provide a program, and (b) it reduces the likelihood of a parent receiving tuition reimbursement for the private school program.  In order to obtain tuition reimbursement, a parent has to show that the city failed to provide an appropriate public school program, and if the parent was always planning to keep her child in private school, it'll be difficult to argue convincingly that the parent was truly interested in something else.  Parents should be aware of the difference between an IEP (Individualized Education Program) and an IESP (Individualized Education Services Program) and know that stating that your child is parentally placed could have important ramifications. 

Expanding the Record with Additional Evidence

When is one party allowed to introduce on appeal evidence that was not presented during a previous administrative proceeding?  In Moorestown Township Board of Education v. S.D., a very recent decision by the U.S. District Court in Camden, New Jersey, the school district was appealing an administrative decision holding that the district had denied the child a free and appropriate education and ordering the district to reimburse the parents for the private school tuition.  At the administrative level, the judge would not allow testimony from one of the individuals that the district wanted to present as a witness (a special education attorney representing school boards).  On appeal to the U.S. District Court, the school district attempted to "expand the record" by having the same witness testify.  Under federal law, additional evidence can be heard at the request of a party.  So would it be proper for this court to hear this particular evidence that the adminstrative judge purposely kept out?  The district court said, under these circumstances, NO. 

The district court said that it has to determine whether the proposed evidence is relevant and useful in determining whether Congress' goal has been reached for the child involved.  This is a case-by-case, fact-based determination.  The statute's language says "shall hear additional evidence at the request of the party" -- which suggests that the court is obligated to do it.  But the court nimbly worked around this language and reasoned that additional evidence could still be kept out if the proposed witness has no knowledge of the facts and the testimony would not help the court in reaching its decision.  In this case, it seemed that the school district wanted to present an attorney as its witness to testify about what the law means, how the law is meant to be implemented, and whether the New Jersey school district was doing it right.  You can imagine that a judge might take offense to this since interpreting the law is generally a judge's role.  The judge made sure to convey this to the school district's attorney, saying that it is "well-settled that matters of statutory construction are not a proper subject for expert testimony, but rather, questions of law to be resolved by the Court."  Read between the lines. 

The court left itself a little wiggle room, explaining that experts can sometimes testify on the specific issue of how a government agency applies and enforces its regulations if the statutory structures is complex and requires this type of testimony.  BUT, in this case, since the school district never asserted this argument and never described the details of what this testimony would show, the evidence is excluded.  The "additional evidence" has to be limited to what is relevant, non-cumulative, and useful in determining whether an appropriate education has been provided to this child.  You have to make clear to the judge how the testimony is relevant and useful to this determination, and any vague or overly broad requests are going to be denied.

Section 504 Plans

Parents often want to know whether they should get a 504 plan and whether this differs from an IEP.  The first point to keep in mind is that any child with an IEP is automatically protected by Section 504 -- the IEP is a more far-reaching legal document.  For instance, Section 504 allows students with disabilities to obtain accommodations and modifications for their disabilities, but under the IDEA which governs IEP's, any child with an IEP would be entitled to the same accommodations and modifications.  Section 504, unlike the IDEA, does not guarantee an individualized educational program to meet the child's unique needs.  It is just meant to give students the same access to education and school programs/activities as students without disabilities.  Still, a Section 504 plan can serve an important role for individuals with disabilities who do not need special education and would not qualify for IEP's.  The standard for eligibility is that the individual must have a physical or mental impairment that substantially limits a major life activity which can mean any number of activities.  If your child has been unable to obtain an IEP, you should discuss the issue of a 504 plan with your child's school.      

Misrepresentation by Schools Regarding Child Progress

What is with schools misrepresenting that a child is making progress when all indicators suggest that child clearly is not?  This issue came up recently in a NYC case handled by this office where the school told the parents of a child with autism that the boy was making progress, not knowing that the boy's parents had spoken to the classroom teacher who said that the child was lost in the classroom and, actually, not doing well at all.  The progress reports (when the school bothered to fill them out) did not reflect progress nor was the school able to offer anything in support of their position, yet they maintained that the student was receiving the full level of support that he required.

In Pennsylvania, parents of a 12-year old child with autism recently filed a class action lawsuit against the Gateway School District, accusing the district of "pervasive misrepresentation of students' educational progress."  This type of problem comes up all the time where there's an issue of systemic wrongful conduct.  The parents in this case have requested that the Court order the district to retrain its personnel on progress monitoring, re-evaluate the IEP's, and provide independent evaluations of all the district's autistic students.  That's certainly a good start and seems to be a reasonable remedy but, unfortunately, courts have shown a reluctance to order this type of across-the-board action where there are allegations of systemic problems. 

The Teachers Union Needs to Examine Its Priorities

The New York Post reported today that the teachers union spent $6.3 million to lobby for traditional public schools and teachers tenure while fighting to limit charter schools, which I think raises some serious concerns about what the teachers unions have come to represent, what their priorities are, and how they are spending their money.  Teachers serve the important role of instructing and molding our children but politics seeems to get in the way of that mission, and the concept of doing what is best for our children has been eclipsed by the teachers unions' fight to protect their teachers.  Shouldn't tenure be a mechanism for rewarding the good teachers rather than a way to insulate the bad ones?  The recent abolishment of NYC's "rubber rooms," for instance, suggests that we will not insulate teachers who have committed serious errors just because they are teachers.  So why should tenure be used as a source of immunity for teachers who are doing a poor job.

And with respect to the public school vs. charter school debate, what would happen if it were established that charter schools really do correlate with increased student progress (more research needed): would the teachers unions continue its opposition because they have become accustomed to the benefits and security offered by the union?  What if the teachers union saved some of the millions of dollars being used to lobby for public schools and against charter schools, and instead utilized that money in a way that could improve the public school system?  Perhaps to incentivize and reward good performance of its good teachers.  The rights of children to receive an appropriate education should come first.

Educating Children with Autism

The inability of school districts to appropriately educate children with autism and provide the necessary services is certainly not just a New York problem.  Take Ohio, for example, where the number of children with autism is reported to have spiked from 1,046 in 1998 to 13,441 by December 2009.  The interesting thing about Ohio is the legislation that was passed to address this issue.  Realizing that suing school districts for appropriate services can mean a long, draining, and expensive legal fight, Ohio established what is known as the Ohio Autism Scholarship.  This allows parents to withdraw their children from public schools and buy private services with taxpayer money. 

A number of issues are unclear with respect to this program: (1) If the child is not enrolled in public school, does that mean that the child would be enrolled in a private school program or home schooled; (2) If the child is in a private school program, does the alotted money go toward the private school program or toward outside services; (3) If a child's program is expensive (and some autism programs can approach $100,000/per year, sometimes more), can the money be used toward part of the tuition balance and, if so, who pays for the rest of the money owed.  NOTE: One of the conditions for receiving this scholarship grant is that the parent agrees to waive its right to an impartial hearing, which raises a red flag as to how the balance of the money owed is going to be covered.  Normally, a parent could file a claim against the school district for reimbursement of the tuition.  If the parent is waiving his/her right to do so, how is the balance being paid?  In addition, the program has several definite flaws which are still being addressed.  These have to do with financial oversight of the program, quality of the services, and communication with the local public school districts regarding the child's progress (all of which have caused problems with the administration of the program thus far).  So the program still needs to be tweaked, but it is an interesting, novel approach to address a pervasive problem.

Paraprofessional Services for Students with Autism

When will the New York City public school system be capable of meeting the educational needs of children with autism?  The jury is still out but school districts have gotten creative in dealing with parents on this issue.  One school district in NYC recently said to a parent of a child with autism that: (a) a one-to-one paraprofessional is not available to a child in a classroom as small as a 6:1:1, and (b) a paraprofessional is available only for students suffering from "behavioral crises" and not a child who has difficulty with attention, focusing and staying on task.  Neither of these contentions is true.  What the school district isn't saying is that federal law guarantees every child the supportive services required to help that child benefit from special education instruction.  The DOE's own handbook states that special education instruction includes paraprofessional services and describes them as 'placement neutral' services because they can be provided in any type of classroom, including a 6:1:1.  And if the school district is unwilling to provide a full-time para to keep this child on-task and focused, it better be able to offer a more supportive type of classroom (and it is doubtful that it can).

Reimbursement of Payments Made by School Districts for Pendency

Under federal law, a student with a disability is allowed to stay at his/her "last agreed upon placement" while due process proceedings are pending.  If the last agreed upon placement is a private school, the school district must pay for the costs of the child's education at that private school for as long as the private school is the last agreed upon placement.  The question that comes up is this: Let's say the final decision in the case is in favor of the school district -- i.e., it's later determined that the district fulfilled its obligation to offer a free and appropriate public education to the child.  Can the school district be reimbursed for the money that it laid out for the private school?  The answer is no.

In NYC Department of Education v. S.S., the court pointed out "Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved," and ruled that the district cannot be reimbursed.  This message was echoed in a recent federal court case in Georgia, Atlanta Independent School System v. S.F.  These cases reinforce the idea that the pendency provisions are intended as a built-in protection for children with special needs and their parents.  The only way to change this would be to persuade Congress to amend the law.  Until then, school districts cannot be reimbursed for payments made during pendency.  

State Review Officer Paul Kelly Resigns

The New York State Review Office, which reviews decisions of impartial hearing officers concerning students with disabilities, has been a source of controversy for years.  The man who hears these appeals, State Review Officer Paul Kelly, has been the center of this controversy.  Allegations of Mr. Kelly's bias abound and some reports have suggested that Mr. Kelly ignored the recommendations of his attorney staff in order to rule in favor of school districts and against parents.  An interesting tidbit is that Mr. Kelly was rumored to be carrying on an intimate relationship and living with Kate Surgalia, a high-level lawyer at the State Education Department.    

It appears that Mr. Kelly has finally resigned.  Whether this was forced upon him or done voluntarily is unclear right now but, no doubt, had to do with the extreme scrutiny he has been under and the harsh criticism he has received.  The issue of who will replace Mr. Kelly is still being worked out.    

Early Intervention

New York State law clearly defines who is eligible for early intervention services.  According to the regulations of the New York State Department of Health, a child is generally entitled to EI services from birth until the age of three.  But, if the child turns three on or after September 1, the child is eligible to continue receiving EI services until January 2 of the next calendar year.

So then why does the Department of Education tell parents different?  In a recent case, the mother of a child with autism exercised her right to continue EI services until January 2 following the child's third birthday.  The mother told the Department that she would be needing a preschool placement for her child once the EI services expired.  The Department responded that no programs were available and blamed the mother for extending the EI services.  They were basically saying, "You should have come to us in September."

When the Department failed to recommend a program, the mother placed her child in a private school capable of meeting his needs and we filed a claim for tuition reimbursement.  The Department ultimately decided not to fight the case because its position was not supported by the law.  The claim was settled and the parent received 100% of the funding she was seeking.