New Mission

New Mission


My idea is to explore how other countries around the world are dealing with education and special education issues. I’d like to see different successful schools, wherever they may be, up close. I’d like to sit down with directors and administrators. I’d like to speak with government officials who keep a pulse on the education affairs of their communities. I want to learn more about education around the globe through speaking with locals, seeing the schools, and shaking hands with the people responsible for implementing the systems. If you know of any outstanding (public or private) special needs schools in other parts of the world, I’d love to hear about them. If you know any education experts from around the world, I’d love to be introduced to them. Please do not hesitate to share your thoughts or ideas. Read more about my mission.

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Wednesday, December 26, 2012

COPAA Statement Regarding The Newtown School Tragedy

In the wake of the Newtown tragedy, as families continue to search for ways to cope with the unfathomable, and as the gun control debate rages on, child advocates are re-examining the need for early identification of special needs when a child is struggling in school and the prompt implementation of appropriate interventions to deal with those issues.  Special education interventions are not only for academic difficulties.  Children with emotional and behavioral difficulties require, and are entitled to, special supports as well.  Below please find a recent statement from the Council of Parent Attorneys and Advocates (COPAA) addressing some of these issues:






December 22, 2012


Towson, MD


The members of Council of Parent Attorneys and Advocates, Inc. (COPAA) work in schools every day with teachers and on behalf of the 7.1 million children with disabilities in the United States. Because of our work, we feel intense, personal pain over the killings at Sandy Hook Elementary School. We express our deepest condolences to all of the families involved and the entire Newtown community.

In 1974, with the passage of the Individual with Disabilities Education Act (IDEA), Congress delegated to school districts the responsibility to identify, evaluate and program for children with all types of special education needs. Thus, by design, the neighborhood public school is the first responder for many children with disabilities. As attorneys and advocates representing children and families in the special education process, we are too familiar with the struggles of families to obtain appropriate services for their children and the many issues that come with raising a child with a disability. We also know the dilemmas faced by schools to provide learning environments that are safe, positive, and secure for all students. It is time to acknowledge that fully-funded, appropriately designed special education and related services for students with disabilities are a critical piece of the solution.


The national debate triggered by Newtown needs to include strengthening our country’s education system. We need to work collaboratively to ensure that children with disabilities are identified and provided with services at an early age and that children are not excluded from school based upon their disability. Unfortunately, we have already seen students excluded from school since Newtown. The IDEA can make a huge difference, if it is fully funded and if educators work collaboratively with parents to utilize the panoply of tools available under it, including positive behavior supports, mental health counseling, and parent training. All students can progress through school to become responsible and contributing members of their communities. COPAA stands ready to face these challenges shoulder-to-shoulder with public school systems to ensure safe and high quality education for all children.

Wednesday, December 12, 2012

Recent SRO Decisions

Decisions from the SRO have been significantly delayed over the last several months.  While there is generally an expectation that an SRO decision will be rendered within 30 days from the request for review, recently parents have waited many months.

I’d like to review some of the last available decisions here:

SRO 12-135 upheld an IHO’s order of reimbursement for the Rebecca School, affirming that the district had failed to provide FAPE and that the Rebecca School was an appropriate placement.  This decision emphasized the importance of an IEP sufficiently identifying a student’s present levels of performance, including an accurate description of the student’s needs and corresponding goals to address those needs.  A central issue on appeal, however, appears to have been compensatory education and how the amount of such instruction/services is determined.  The SRO modified the award of compensatory services by reversing the part of the IHO’s decision that awarded 105 hours of speech-language therapy (according to the SRO, the area of speech-language needs was not sufficiently challenged in the parent’s due process complaint) but affirmed the award of 105 hours of special education services(1:1) to put the student in the position she would have been in had the district offered FAPE during the school year at issue.

SRO 12-096 is a strange case.  At the IHO level, the hearing officer initially found that the district had denied FAPE and ordered tuition reimbursement for the Rebecca School (summer) as well as the cost of a home program and related services.  Apparently, the IHO then amended her initial decision, reversing her own initial finding of the appropriateness of the home program in her original decision.  Huh?

The SRO annulled the second decision and considered the merits of the appeal from the first.  The SRO dismissed the parents’ arguments regarding the CSE’s evaluative information and the present levels of performance in the IEP.  With respect to goals and objectives, the SRO agreed that the IEP goals lacked measurability, but disagreed with the parent regarding the sufficiency of “baseline data” and asserted that the objectives accompanying those goals were sufficiently measurable.  In considering the issues of an FBA and BIP (common in autism cases), the SRO seemed to suggest that because the student was attending Rebecca at the time of the IEP meeting, the CSE may have been absolved from conducting an FBA, and defended the CSE’s actions regarding the student’s behaviors and her BIP.

The parents’ arguments relating to the recommended public school were shot down too.  The SRO echoed a recent SRO trend of asserting that where the child didn’t attend the public school program, the sufficiency of the program is to be determined based on the IEP itself and not a school’s ability to implement it.  This arguably is at odds with the holding in Forest Grove which states that a child need not have attended a particular public school program in order for a parent to assert that it is inappropriate.  Wouldn't we still want to know whether the program actually could have been implemented even where an IEP “looks good”?  Yes, we would.  The SRO actually then proceeded to consider what the implementation of this program would have looked like and concluded that even such an analysis would not result in a finding of a denial of FAPE, summarily rejecting the parents’ points regarding student grouping, environmental and sensory concerns, transitioning, and related services.  With respect to grouping, I am perplexed by the assertion that “cognitive skills are not a necessary component of determining the similarity of individual needs."  Someone please explain it to me.  

Not sure what to make of this case. It will be interesting to follow it if/when it goes up on appeal.

Note:  Although it might seem that the last available decision on the SRO website is from September 12, 2012, upon closer inspection one finds that the decisions are just out of order.  SRO decisions 12-079 and 12-081 are from October.  In both cases, the SRO reversed IHO decisions ordering reimbursement for unilateral placements for the 2011-2012 school year because, in the SRO’s opinion, FAPE had been provided and proven by the school district.

Wednesday, November 7, 2012

NYSED Letter Regarding Easing Special Education Requirements In Light Of Hurricane Sandy

The New York State Education Department issued the following letter regarding displacement of children from their regular educational placements, due process timelines, and the easing of special education requirements in light of Hurricane Sandy.

http://www.p12.nysed.gov/specialed/publications/HurricaneSandy-specialed.pdf

Wednesday, October 31, 2012

Hurricane Sandy And Its Aftermath

In the wake of one of the largest natural disasters our area has seen in years, our thoughts go out to all who may have been affected by Hurricane Sandy and its devastating effects.  We hope that you and your families remain safe and wish you a speedy return to normality during this period of recovery. 

At the current time, our office building still does not have power and the phone lines remain down.  Should you need to reach us, please email me at adayan@dayanlawfirm.com.  I will respond to any inquiries promptly. 

New York City public schools will remain closed on Thursday, November 1 and Friday, November 2.  For further updates please visit: http://schools.nyc.gov/default.htm.

Tuesday, October 16, 2012

Night Of Too Many Stars 2012

This past Saturday evening I attended an event called the Night Of Too Many Stars, an annual fundraiser hosted by the Comedy Central network to raise money for autism.  Proceeds from the event benefit New York Collaborates for Autism, a non-profit organization dedicated to children on the spectrum, and involved with creating model programs for children with autism and fostering collaboration among individuals in the autism community: http://nyc4a.org/.  The event, emceed by John Stewart, took place at the Beacon Theatre and included celebrity appearances by Ben Stiller, Kevin Bacon, Bill O'Reilly, Chris Matthews, Louis CK, Seth Rogen, and others, stand-up comedy by Hannibal Buress and Bill Burr, and musical performances including Sting.  Auction items included a trip for two to New Mexico to visit the set of the hit television show Breaking Bad, and a night out with Tina Fey and Amy Poehler.  The evening was peppered with short videos recounting stories from parents of children with autism who have struggled to secure for their children the programs and services that their children need.  One of the highlights of the evening was a live piano performance by a young girl with autism to a Katy Perry song with Katy Perry performing the vocals, which received the sole standing ovation of the evening. 

I have attended this event twice and both times left feeling inspired.  The event serves as an effective fundraising vehicle and a forum for continuing to spread autism awareness.

The taped event is scheduled to air on Comedy Central on Sunday, October 21 at 8pm for anyone who would like to tune in.         

Thursday, September 27, 2012

Events Happening This Weekend

A few events taking place this weekend are the impetus for this brief post:

1) The release of Won't Back Down
This Hollywood film due to be released on Friday, September 28 depicts the travails of parents fed up with the bureaucracy of the public school system and teachers' unions who buck the system and plan to move toward something better.  Unlike Waiting for Superman, this film is not a documentary, but certainly is timely in light of the current education debate and appears to be sending strong waves through the parent community (if reactions from the limited advanced screenings are any indication). 

http://www.myfoxny.com/story/19541053/wont-back-down-screening-in-new-york-sparks-debate?autoStart=true&topVideoCatNo=default&clipId=7723511

2) Presidential Debate regarding Disability Issues
Although Barack and Mitt have opted out of appearing at this forum scheduled to take place on Friday, September 28, their respective camps will be represented at this debate regarding a range of disability issues in the U.S. 

For more information: http://www.nfdi.org/

3) City Hall Rally
A rally will take place on Sunday, September 30 at City Hall to fight the city's recent changes in the way that service contracts are awarded and CPSE services are provided with respect to pre-school-aged children with special needs.  As a result of the recent changes, many independent providers who have developed positive educational relationships with their students are finding that they may be out of jobs. 

For more information:

http://www.unyeip.org/announcement.html
http://www.unyeip.org/uploads/4/2/1/6/4216155/cpse_service_disruptions_press_release.doc

"Education Reform" in New York

Over the last several weeks we have received inquiries from parents and advocates regarding two hot-button issues, which appear to be part of a city-wide and state-wide "reform" effort:

(a) Related services for students attending NY State-approved nonpublic schools (NPS's)

Many of you might be aware of a message promulgated by the New York State Education Department (NYSED), and the physical embodiment of that message in letter-form that was recently distributed to NYC impartial hearing officers, regarding the provision of related services to children attending approved nonpublic schools. 

http://www.p12.nysed.gov/specialed/dueprocess/NYC-IHO-RSA-912.pdf

Parents have been outraged over the idea that they might not be able to procure the level of related services that their children need.  Or that they might have to "give back" services that were previously mandated for their child...if they wanted their child to continue in his/her current NPS, that is. 

"How could they do that?" parents have asked. 

In its letter, the NYSED cited provisions of the NY regulatory code purportedly supporting its position that an NPS must provide all of the related services that a child requires in order to be appropriate.  The NYSED's actions appear to run afoul of the IDEA and contradict federal case law which makes clear that a private school need not provide every service in order to be deemed "appropriate." 

(b) The DOE's "new reform" relating to inclusion

For a brief background, see: http://www.schoolbook.org/2012/09/21/doe-special-ed-changes-progressing-well/

In short, the DOE has been on a mission that operates on the principle that students currently enrolled in certain "more supportive" ("more restrictive") special education setttings can be educated just as well, perhaps better, in less supportive settings that are closer to mainstream, or general education environments.  I'm not entirely clear on what is new about this movement.  School districts have always recommended the least supportive environment possible (and, in fact, federal and state law call for educating a child in the least restrictive environment). 

So perhaps the "new reform movement" is not a new course of action, but a more aggressive, more thought-out course of action.  As a result, there appears to be a re-configuration of certain DOE policies and a re-allocation of city resources. 

To place a child in a more mainstreamed environment, however, when there is a clear need for the more supportive setting was not intended by the IDEA.  Such a move likely would amount to a violation of the child's right to an appropriate education. 

While I don't discount the benefit of mainstreaming to the extent possible and appropriate peer modeling with non-disabled peers, I do worry that the Department's screening and decisionmaking process on this matter might be influenced by external pressures unrelated to the question of, Will this specific action help this specific student succeed?   


* With respect to both of the above issues, it is still your child's invidual, unique needs which govern the program and placement process.  Not the other way around, regardless of what state ed may have you think. 

Tuesday, September 25, 2012

R.E., R.K., E.Z.-L.

For those of you trying to decipher the alphabet soup in the title of this blog post, it refers to a recent decision from the Second Circuit Court of Appeals regarding the combined matters of:

R.E. v. NYC Department of Education
R.K. v. NYC Department of Education
E.Z.-L. v. NYC Department of Education

This post will summarize some of the legal issues involved.  It is not intended to be comprehensive by any means, and will not review the particular facts of each case.  Those who would like to read the full decision with all its nuances should be able to do so here:

http://www.ca2.uscourts.gov/decisions/isysquery/4b2a5018-cb90-4054-a841-c2ec37f8b79e/1/doc/11-1266_11-1474_11-655_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4b2a5018-cb90-4054-a841-c2ec37f8b79e/1/hilite/

In brief, the Second Circuit decided to hear these three cases jointly due to common issues of law.  Some parts of the decision contain clear, strong language.  Other parts of the decision leave some question marks.  Here are three of the main issues they addressed and some language/thoughts from the Court which I am presenting in somewhat bare-bones fashion without in-depth legal analysis at this time:

1) Retrospective testimony
Can a school district rely on "retrospective testimony" about additional services that would have been provided at the public school placement (even if that information was not known to the parents at decision making time)?

"[T]estimony regarding state-offered services may only explain or justify what is listed in the written IEP.  Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP." 

"[T]he IEP ust be evaluated prospectively as of the time of its drafting and . . . retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding." 

"[P]arents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision."  [emphasis added]

"[I]t is error to find that a FAPE was provided because a specific teacher would have been assigned or because of actions that specific teacher would have taken beyond what was listed in the IEP." 

"This rule recognizes the critical nature of the IEP as the centerpiece of the system, ensure that parents will have sufficient information on which to base a decision about unilateral placement, and puts school districts on notice that they must include all of the services they intend to provide in the written plan." [emphasis added]

2) Deference
What deference must a reviewing court give to the State Review Officer (SRO)?

"[T]he deference owed to an SRO's decision depends on the quality of the opinion." 

Relevant factors include "whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court." 

3) Procedural violations
At what point do violations of state regulations rise to the level of a denial of FAPE?

The Court considered the importance of FBA's, BIP's, and services such as parent counseling and training, and discussed when a failure to provide any of the above might result in a deprivation of FAPE. 

"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered indivdually do not."   

"Failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all. . . .  [S]uch a failure seriously impairs substantive review of the IEP because courts cannot determine exactly what information an FBA would have yielded and whether that information would be consistent with the student's IEP." 

"[T]he failure to conduct an FBA at the proper time cannot be rectified by doing so at a later date." 


NoteDicta from the Court's discussion of the above-enumerated issues have been omitted from this post but can be read in the decision itself. 


This decision, in several ways, reinforces child and parental rights in the special education process.  However, as noted above, there are some areas of the decision whose implications are not yet clear.  It's a 58-page decision but worth skimming for those who are interested to know more. 


Saturday, September 15, 2012

Chicago Teacher Strike

What exactly is going on with the teacher strike in Chicago and what implications does it have for the rest of the country as far as education reform goes? 

For starters, Chicago is the nation's third largest school district with approximately 350,000 students who have been sidelined for the past five school days while the teachers have been on strike.

If this were a boxing match, the bout might be summarized like this:

Chicago Teachers' Union vs. Chicago Public Schools 

Karen Lewis (president of the teachers' union) vs. Rahm Emanuel (mayor of Chicago)

Big-pictures issues at play:

- What role will unions continue to play in this country?  See, e.g., Wisconsin.
- What political influence will *union support* have on the presidential campaign.

This strike has been described by some as "a symbol of hope for public teachers and other unions that have been losing ground around the nation."  (http://www.washingtonpost.com/business/negotiators-reach-framework-to-end-chicago-teachers-strike-classes-could-resume-monday/2012/09/14/bb3fa52c-fed3-11e1-98c6-ec0a0a93f8eb_story.html). 

Issues to be resolved during these negotiations include:
  • Teacher evaluations
  • Standardized testing
  • Salary
  • Automatic re-hiring 
  • The rights of laid off teachers and the benefits to which they are entitled 
  • Principal responsibilities 
New York City has been grappling with many of these issues as well.  At least in New York, it seems that the public's view of the teachers' unions have been waning.  I had the opportunity to catch Randi Weingarten in conversation with Steven Brill at the 92nd Street Y two nights ago and their interplay typified that tension.  (Note: Snickering, hissing, and booing filled the audience...at a venue where good behavior is the norm.)  

Although deal proposals have been made and meetings have been held, with a hope that Chicago students will return to school on Monday, it appears that no deal has yet been reached.  But we will be watching this one closely.    

P.S. (September 27, 2012) - Although the strike is over, questions abound regarding how Chicago will deal with the financial implications of the agreement reached with the Teachers' Union:

http://www.businessweek.com/news/2012-09-20/chicago-strike-deal-will-cost-many-teachers-their-jobs

http://www.businessweek.com/news/2012-09-20/chicago-strike-deal-will-cost-many-teachers-their-jobs

Thursday, September 13, 2012

NY Times Schools For Tomorrow Conference

For those who are not attending today's NY Times Schools For Tomorrow event, it is streaming live all day on their website: http://nytschoolsfortomorrow.com/

Topics being covered include:
  • Perspectives on education issues from the campaign trail 
  • Global overview - Canada, Australia, Finland, Singapore
  • Economics metrics of education in the U.S. compared to abroad
  • How to increase the status and perception of the profession and attract top talent
  • Teacher salaries & merit-based pay 
  • Measuring teacher performance
  • Role of teachers' unions 
  • Chicago teachers' strike 
  • Influence of Teach For America
  • Role of federal/local government in educational reform
  • Future of education 
  • Building support structures - school mentorship, teacher-training programs, and supporting teachers to deliver better instruction
  • Changing role of the teacher  
Highlights include: 
  • David Brooks as moderator
  • Linda Darling-Hammond, Stanford University Professor of Education
  • Kaya Henderson, Chancellor of the D.C. Public School System (successor to Michelle Rhee)
  • Keynote address by Aneesh Chopra, former Chief Technology Officer for the U.S. 
  • Remarks from Chancellor Dennis Walcott
If teaching, in the words of Linda Darling-Hammond, is "the profession on which all other professions depend," today's subject of how to improve that profession makes for a meaningful and worthwhile conversation.  

Tuesday, September 4, 2012

Autism Etiology

Why the soaring autism numbers?  Hard to know for sure.  But this article provides some interesting insight into what could be the root of the problem, and ideas about how to treat it.

http://www.nytimes.com/2012/08/26/opinion/sunday/immune-disorders-and-autism.html?pagewanted=all

Monday, September 3, 2012

BACK TO SCHOOL

It's back to school now that summer is over.  That can bring out nerves and jitters for children and parents alike.  From a parent's perspective, some common concerns might include:

Will my child do well this year? 
Will he/she receive all of the supports that he/she needs? 
Will he/she be in the right class? 
Will he/she have good teachers? 
Will he/she make friends? 
What do I do if he/she is struggling?

While we wish you and your child a successful academic year, keep in mind that signs of learning difficulty are not always readily apparent.  In such cases you will want to be closely attuned to your child.  An obvious red flag that your child is not progressing in school could be poor academic exam grades or report cards, but grades do not always tell the full story.  You should pay attention for the following signals either in school or at home:

- Complaints of boredom
- Tuning out
- Acting out
- Not attending to homework or spending an inordinate amount of time completing homework
- Poor self-image (especially in relation to peers)
- Social difficulties
- Frustration
- Aggression

If your child presents with any of these issues, speak with his teacher immediately to explore whether something deeper might be at play.  If you suspect that your child might have a disability but are not sure, you should explore the idea of having a qualified professional conduct a comprehensive psychological assessment to better understand your child’s areas of strength and weakness. 

In addition to the above, there are a number of broader policy considerations for the coming school year.  Some parents might be wondering, How will the DOE's new push for inclusion affect their children.  See:

http://www.schoolbook.org/2012/08/09/special-ed-reform-brings-city-more-in-line-with-national-trend/

Others might be wondering, What teachers' union reform can be expected and in what ways will that affect the quality of teaching in New York City's public schools?  See: 

http://www.nytimes.com/2012/08/19/opinion/sunday/bruni-teachers-on-the-defensive.html?pagewanted=all

(For those interested in the movie referenced in the article above, Won't Back Down will be in theaters starting September 28, 2012.)

Best wishes for a successful 2012-2013 school year!

Tuesday, July 31, 2012

Beware Of The Conscientious Teacher

I came across this article that I read a while ago and had put aside to share.  Unfortunately, stories like this one happen all too often:

http://www.nytimes.com/2012/07/07/nyregion/state-backs-up-accusation-by-harris-lirtzman-bronx-teacher-on-special-education-gotham.html

Cuomo Vetoes Special Education Bill

Governor Cuomo has vetoed the special education bill.  I am not surprised by the result for two reasons: (1) It was rushed through the legislature quickly which left some people surprised and others outraged; (2) It gave short shrift to the financial implications of the new law.  Cuomo's main concern was that it "constitutes an overly broad and ambiguous mandate that would result in incalculable significant additional costs to be borne by every school district and taxpayer."  He didn't seem to address the other points in the bill that were aimed at making the special education process less burdensome for parents. 

VETO-130

Tuesday, July 24, 2012

Shema Kolainu-Hear Our Voices 10th Annual Legislative Breakfast

This morning I had the pleasure of attending the 10th Annual Legislative Breakfast of Shema Kolainu-Hear Our Voices ("SKHOV").  For those who are not familiar, SKHOV is a private special education school in Brooklyn dedicated to the education of children with autism spectrum disorders through the use of appropriate evidence-based education and therapy programs.  The school offers parents a panoply of valuable services, resources, trainings, and supports (www.hear-our-voices.org).  This morning's star-studded event included appearances from the following individuals, among others:

  • NYC Council Speaker Christine Quinn
  • Manhattan Borough President Scott Stringer
  • Bronx Borough President Ruben Diaz Jr.
  • Assemblyman Phil Goldfeder
  • Assemblyman Dov Hikind
  • Councilman Mark Weprin
  • Councilman David Greenfield
  • Councilman Dominic Recchia Jr.

Mayor Bloomberg, though not in attendance, delivered encouraging words by letter. 

The event, presented by Founder and CEO of SKHOV Joshua Weinstein, was well-attended, full of energy, and sprinkled with commitments of continued funding and support for the battle against autism.  Awards were bestowed upon a select group of honorees.

 Anyone in attendance would have noted the diversity in the racial, cultural, and religious backgrounds of the individuals who spoke, which is fitting, and emblematic of the fact that autism knows no racial, cultural, or religious bounds. 

Day-in and day-out I am inspired by my clients, their families, and their stories.  Today's event, however, was inspirational in a different way, and a powerful reminder of our ability, as a group, to effect meaningful change for those who need it the most.

Fate Of The Special Education Bill

For those wondering what ever happened with the special education bill, it appears that Governor Cuomo only received it from the state senate (which sat on it for a while) on Friday, July 20.  If my calculations are correct, the governor has until August 3 to decide whether to sign or veto the bill.  Passage of the bill has engendered both zealous support and staunch opposition.  We will keep our ears open for further developments.     

Tuesday, July 3, 2012

Will Governor Cuomo Sign The Special Education Bill?

The hubbub about the special education bill continues.  There was a story about it in the New York Times:

http://www.nytimes.com/2012/07/03/nyregion/albany-bill-would-add-family-to-special-education-factors.html?_r=1&emc=tnt&tntemail0=y

The Wall Street Journal has reported on it:

http://online.wsj.com/article/SB10001424052702304211804577501082865373076.html?KEYWORDS=fleisher

The mayor's office sent out a press release opposing the move.

The bill purports to do three things: (1) force school districts to take into account a child's home environment and family background when making decisions about special education placement; (2) change the timelines for due process proceedings and reimbursement with the goal of speeding up the process; and (3) ensure that, once a private school is deemed appropriate, it continues to be treated as appropriate until the school district changes the child's IEP.  Again, I say "purports" because what this means exactly still needs to be worked out. 

Schools and school districts are waiting in the wings to see how this will affect their regular course of business.  Some questions that remain to be answered:
  • What does it really mean to consider a child's "home environment and family background," and are there parameters? 
  • To what extent will this decrease litigation and reduce the high cost that such litigation typically entails?  
  • How will this affect the district's process of making placement recommendations? 
  • What, if any, effect will this have on the way in which State Ed treats private schools?
  • To what extent does this bill comport with applicable federal law relating to children with disabilities?     
I believe the governor has ten days from the time he receives the bill to approve or veto.  To my knowledge he has not yet received it from the legislature.  Stay tuned. 

Wednesday, June 27, 2012

Closed Captioning For The Hearing Impaired

Netflix is back in the news and this time it's not about price hikes but, rather, closed captioning for its hearing-impaired audience, or potential audience, and the extent to which Netflix is legally required to provide captioning for its video streaming service.

http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-netflix-closed-captioning-20120625,0,2349779.story

In the recent federal court case, National Association of the Deaf v. Netflix, 3:11-cv-30168-MAP (June 19, 2012), Judge Ponsor of the U.S. District Court of Massachusetts denied Netflix's motion to dismiss the case which is brought under the ADA, 42 U.S.C. §12182(a), for failing to provide equal access to the video streaming website.  An important issue in the case is whether the Internet can be considered a "place of public accommodation" under the ADA.  Judge Ponsor believed that it could be.   

For a brief and interesting analysis of this decision see: 

arstechnica.com/tech-policy/2012/06/will-the-americans-with-disabilities-act-tear-a-hole-in-internet-law/

Another interesting question this case raises, which is applicable not just here but in any instance of statutory or constitutional construction, is - To what extent was the law meant to encompass new technologies that come into existence after the law was written.  Judge Ponsor cited to the legislative history of the ADA where Congress explicitly addressed this issue: "[T]he committee intends that the types of accommodations and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly technology of the times."  The case will go forward, with broader implications than just Netflix.    

This morning I also received a link to a video emanating from the Collaborative for Communication Access via Captioning ("CCAC") on the importance of captioning.  Worth a look:

http://usodep.blogs.govdelivery.com/2012/06/13/dont-leave-us-out/

Tuesday, June 26, 2012

Recent Activity In Albany

I recently came across a quote about *change* while browsing the internet.  It said something to the effect of - You can find change in your couch, but not on your couch.  I thought it was cute and it has stuck in my head.  It seems like a lot of people in Albany are off their couches and trying to shake things up.  You may remember the January 25, 2012 blog post titled Proposed Amendments To The Regulations Relating To Impartial Hearings.  After public hearings that were held in February and in response to public comment, those proposed changes to state education regulations have not been implemented but, instead, revised to take into account the various public comments they received.  The current version of the proposed regulations is before the P-12 Education Committee, and it is expected that a notice of the revised rule making will be published by July 18, with public comment to follow.  For a closer look, check out:

Proposed Amendment of Sections 200.1 and 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Impartial Hearings

In addition, there has been a buzz about the bills recently passed by the NY Senate and Assembly (S7722A and A10722A) which amend provisions of N.Y. Educ. Law §§ 4402 and 4404.  Our office received a number of inquiries from the press to discuss the issue.  To learn more visit:

http://open.nysenate.gov/legislation/bill/S7722a-2011 
    

Monday, June 25, 2012

Charter Schools & Special Needs Students

As the influence of charter schools continues to grow, there is greater scrutiny about the extent to which they accept and accommodate children with special needs.  The word on the street is that charter schools who do accept children with learning disabilities, commonly "counsel them out."  This way, their acceptance numbers of such students are higher but their test scores and graduation rates are not lower.  I haven't personally undertaken an empirical study on the issue, but the U.S. Government Accountability Office (GAO) has:

http://www.gao.gov/products/GAO-12-543 

Wednesday, June 20, 2012

President Obama's Education Report Card

Say what you will about the president, but he has had a focus and impact on education.  E4E featured an interesting write-up about his education report card:

http://www.educators4excellence.org/news/2012-06-president-obamas-report-card-on-education-policy

The story brought out a couple of issues that I would want to investigate more thoroughly if I were a journalist with an interest in education policy, or an education lawyer with some more free time. 

  • To what extent have states actually followed through with the promises they made to Washington in order to procure substantial Race To The Top (RTTT) funds?  The article suggests that promises made by states in the grant writing process in order to obtain the funds were empty, and that states have not made good on those promises. 

  • How "beholden" is the presidency to the teachers' unions?  If this were Fight Club, and we pitted teacher quality and merit-based pay against the teachers' unions and their campaign contributions, who would win?  Is the president's discourse regarding implementing new mechanisms for judging and compensating teachers lip service and rhetoric, or does it reflect serious intentions to change the system?   

  • What would a completely privatized education system look like and what would that mean for the most unfortunate of students who are not accepted to any private institution?

Friday, June 8, 2012

U.S. Office Of Personnel Management Concludes ABA Therapy Is "Medical"

See the below article from Disability Scoop about insurance-related developments regarding ABA therapy for individuals with autism:

Feds Approve ABA Therapy As Medical Benefit


By

A recent change in federal policy could lead many more families affected by autism to gain insurance coverage for applied behavior analysis, advocates say.

In a major shift, the U.S. Office of Personnel Management said that it has determined there is enough evidence behind the use of ABA therapy to deem it a medical rather than an educational service.

The office is responsible for managing benefits for federal government employees, so the announcement paves the way for health plans offered to government workers to include coverage for the popular autism therapy for the first time.

What’s more, autism advocates say it sets an important precedent since the U.S. government is the nation’s largest employer.

“The OPM decision directly contradicts a long-standing insurance industry claim that ABA therapy is not ‘medical,’ but rather ‘educational’ — provided by the schools at taxpayer expense,” said Peter Bell, executive vice president for programs and services at Autism Speaks. “Now, tens of thousands of families will have better access to more affordable, critical ABA treatment.”

Currently, 30 states require that health insurance plans include ABA therapy, according to Autism Speaks, which has lobbied heavily for such legislation.

Under the new rules, coverage for ABA therapy may be included in health plans provided to federal workers starting in 2013.

Tuesday, June 5, 2012

Proposed Changes To Statute Of Limitations For IDEA Cases


Please see the below circulation I received the other day from Advocates for Children regarding the proposed changes to the statute of limitations (currently two years) for cases arising under the IDEA: 

Subject:
Action Alert: Protect the Rights of Parents of Students with Disabilities

Background:
At the request of the New York State Education Department, New York State Senator Flanagan and New York State Assemblywoman Nolan have sponsored bills (S6688 and A10290) that could mean that even when a school district completely fails to provide a free, appropriate, public education to a student with a disability, that student could be left without any rights if his or her parents did not sue about it fast enough.  

The Law Would:
  • Drastically reduce the time in which a parent whose child with a disability has not been given an appropriate education can sue (this time period is a called the “statute of limitations”) from two years to one year from the date on which a parent first knew or should have known of the violation;
  • Shorten the timeline even further for those parents seeking private school tuition from two years to 180 days from the date when the parent was first liable for private school tuition;
  • Impact the neediest families the most, as they may not have access to attorneys or be aware of what to do to enforce their rights; and 
  • Discourage families from trying to work out their disputes with a school because waiting to formally complain could mean a parent would lose the right to complain at all, no matter how badly a student’s rights had been violated.

Take Action:
Tell Governor Cuomo and the Chairs of the Education Committees to oppose the provisions in S6688 and A10290 which would reduce the statute of limitations for parents of students with disabilities to file an impartial hearing complaint.

1.            Click here to sign our petition. 1.           

2.            Send an e-mail to the Governor and the Chairs of the State Senate and Assembly Education Committees telling them that you oppose any reduction in the statute of limitations for due process complaints brought by parents of students with disabilities. You can cut and paste this language into an email or use your own words:

I oppose the provisions in S6688 and A10290 which would reduce the statute of limitations for parents of students with disabilities to file an impartial hearing complaint.  Reducing the timeline dramatically from the current two year time period to 180 days for parents who seek private school tuition and to one year for all other cases is unfair to these students who have not been provided with the programs and services that they were legally entitled to.  Please keep the current two year statute of limitations for these cases.

Governor Cuomo: Click here  
Senator Flanagan: Click here 
Assemblywoman Nolan: Click here

3.            Call the Governor and the Chairs of the Education Committees and tell them that you oppose any reduction in the statute of limitations for due process complaints brought by parents of students with disabilities. Use the language above or tell them in your own words why you oppose reducing the statute of limitations for these cases.

Governor Cuomo: (518) 474-8390 
Senator Flanagan: 631-361-2154 (Smithtown); 518-455-2071 (Albany) 
Assemblywoman Nolan: 718-784-3194 (Sunnyside); 718-456-9492 (Ridgewood); 516-455-4851 (Albany)

4.            Forward this alert to others who may be interested in taking action.

For more information, please contact Kim Madden at kmadden@afcnyc.org.

UN Calls For Investigation of Judge Rotenberg Center's Treatment Of Children With Autism

Recent stories about children with autism being mistreated by the teachers and staff at their schools have shocked and awed.  Most recently, the spotlight has been on the Judge Rotenberg Center in Massachusetts.  The school is believed to administer electric shock treatment to its children with autism as a means of "aversive therapy."   

http://www.guardian.co.uk/society/2012/jun/02/un-investigation-shock-treatments-autism

Monday, June 4, 2012

Student Loans Discharged For Individual With Asperger's

While the IDEA protects children with disabilities between the ages of 3 and 21 who are entitled to certain special education programs and services, and has the purpose of preparing children for employment and independent living, it generally does not provide for supports into adulthood (with some limited exceptions).  So what happens to individuals with disabilities who, as adults, struggle to secure and maintain employment?  What type of accommodations should be made? 

Well, in an interesting case, a federal court judge decided that an individual with Asperger's Syndrome who had struggled to hold down a job was entitled to having her student loans discharged as a result of "undue hardship."  In re Todd, 2012 WL 1862341 (Bankr. D. Md. May 17, 2012)
 
I haven't read the whole case.  Before even trying to pull it up, a number of questions came to mind.  What does the language in the loan agreement say about undue hardship and does that language support a finding of undue hardship in this case?  What, if any, firm criteria did the judge articulate for someone's disability to be deemed an undue hardship?  How severe/mild does a person's disability have to be?  How many times do you have to have been rejected by employers or fired from a job?  How, if at all, does the analysis change if the individual is receiving or not receiving counseling/support services to improve in areas of weakness?  Are there any factors that would reduce the % of debt that can be forgiven? 

I was able to pull up the case and glance at it briefly.  It turns out that the term "undue hardship" is not defined by the Bankruptcy Code but has been defined by the courts.  Student loan debt is generally not discharged unless holding the individual to the debt would impose an undue hardship on the debtor and the debtor's dependents, and there is a three-part test to make that determination:
(1) The debtor cannot maintain, based on current income and expenses, a minimal standard of living for herself and her dependents if forced to repay the loans;
(2) Additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and
(3) The debtor has made good faith efforts to repay the loans.
Brunner, 831 F.2d at 396.  The debtor has the burden of proof on all three points by a preponderance of the evidence. Frushour, 433 F.3d at 400.  Discharging student debt is a rare occurrence.  Here, however, the court found that all three requirements had been met and discharged all of the student loans.
It will be interesting to see whether the loan provider appeals and how this all shakes out.  Will there be a flurry of more cases like this?  How will this decision affect the way loan providers deal with individuals with disabilities in the future?
 
Story available at:
http://www.baltimoresun.com/news/maryland/baltimore-county/bs-md-student-loan-discharge-20120525,0,5262213.story

Case available at:
In re Todd, 2012 WL 1862341 (Bankr. D. Md. May 17, 2012)

2012 Medicaid Rankings

We previously blogged about the 2011 Medicaid Ranking released by the United Cerebal Palsy (UCP) organization (see July 7, 2011 blog post).  UCP has released the 2012 report.  The report has New York jumping up a few spots, but indicates that there is still room for improvement across the board. 

Access the full report here:
http://www.ucp.org/the-case-for-inclusion/2011/images/The%20Case%20for%20Inclusion%202012_Full%20Narrative_final%20.pdf

See also:
http://www.ucp.org/the-case-for-inclusion/2011/

Wednesday, May 30, 2012

NCLB Waivers Granted To More States, Including New York

U.S. Department of Education
Office of Communications & Outreach, Press Office   
400 Maryland Ave., S.W.
Washington, D.C. 20202

FOR IMMEDIATE RELEASE:
May 28, 2011

CONTACT:
Press Office, (202) 401-1576 or press@ed.gov


Obama Administration Approves Eight More States for NCLB Waivers

19 States Approved So Far; 17 States and Washington, D.C., Currently Under Review; Other States Can Still Apply

The Obama administration approved eight additional states for flexibility from key provisions of No Child Left Behind (NCLB) in exchange for state-developed plans to prepare all students for college and career, focus aid on the neediest students, and support effective teaching and leadership. Today’s announcement brings the number of states with waivers to 19. Eighteen additional applications are still under review.

At an event in Hartford, Connecticut, with Gov. Dannel Malloy, U.S. Rep. Rosa DeLauro and a host of local, state and federal officials, U.S. Education Secretary Arne Duncan announced waivers for Connecticut, Delaware, Louisiana, Maryland, New York, North Carolina, Ohio and Rhode Island.

“These eight additional states are getting more flexibility with federal funds and relief from NCLB’s one-size-fits-all federal mandates in order to develop locally-tailored solutions to meet their unique educational challenges,” Duncan said.

Duncan pointed out that many of the new state-created accountability systems capture more students at risk, including low-income students, students with disabilities, and English learners, adding, “States must show they are protecting children in order to get flexibility. These states met that bar.”

Connecticut’s plan, for example, raises the number of schools accountable for the performance of students with disabilities from 276 to 683; free and reduced-price lunch students from 757 to 928; African American students from 280 to 414; Hispanic students from 356 to 548; and English learners from 97 to 209. States previously granted waivers include Colorado, Florida, Georgia, Indiana, Kentucky, Massachusetts, Minnesota, New Jersey, New Mexico, Oklahoma and Tennessee.


See also:

Friday, May 11, 2012

Justice Center For The Protection Of People With Special Needs

Governor Cuomo, following up on the creation of the new NY Reform Commission, which seemed heavily focused on the general education side of education, has announced a new special education focused endeavor - the Justice Center For The Protection Of People With Special Needs.  The scope of the project, as described in the below link, will encompass the investigation of abuse and neglect in state-run institutions such as residential programs for individuals with developmental disabilities. 

http://www.timesunion.com/local/article/Guarding-the-disabled-3541263.php

Thursday, May 3, 2012

Cuomo's New Commission

Governor's NY Education Reform Commission:
 
Education advisor out.  Citibank corporate bigwig in. 

Nothing on special education other than a brief reference to "approaches to improving special education programs and outcomes while also reducing costs."

What's this "blueprint" going to look like? 

"An action plan to make this state's education system the best on the globe" - Great let's do it!

"How do you make excellence systemic reality across the board, as opposed to the exception?" - Excellent question

Frightening statistics feed of the day -
  • NYS spends more money per student than any other state in the nation
  • NYS but ranks 38th in high school graduation rates
  • 73% of NY's students graduate from high school but only 37% are college ready
I am pleased to see Chancellor Goldstein on the commission.  He is a visionary with a proven track record for education reform. 

http://www.governor.ny.gov/press/4302012EducationReformCommission

http://www.educators4excellence.org/news/2012-04-cuomo-forms-panel-to-make-action-plan-for-education

Controversial Article About Special Education Reform

The Atlantic published a controversial article about special education reform which is creating a stir in the special education community.  I will respond with my own thoughts at a later time.  In the meantime, what do others think?

http://www.theatlantic.com/national/archive/2012/04/4-common-sense-proposals-for-special-education-reform/256435/

Tuesday, May 1, 2012

Upcoming Informational Session

Below please find details about an upcoming informational session presented by educational consultant Sarah Birnbaum:

What's the next step after CPSE? Is the mainstream the right setting for my child? If not, what kind of elementary program is the right one? What happens at the Turning 5 meeting, and what are my rights and options? How can I best advocate for my child?

Here is a chance to learn how to answer those questions and get a jump on this stressful process. As always, the presentation will be free of charge.

Kindergarten: The Great Beyond; Or, "You Mean I'm Not Done Yet?"
Date: Thursday, May 24, 6:00-8:00pm
Location: Bankstreet College of Education
610 West 112th Street, main floor auditorium
RSVP:

Friday, April 27, 2012

SRO 11-041

In Appeal No. 11-041, the SRO deals with an IHO decision denying funding for the Robert Louis Stevenson School.  The decision deals with a number of important issues including:
  • The implications of Mr. and Mrs. A. on behalf of D.A. v. NYC DOE (a recent SDNY decision)
  • The issue of notice
  • Reductions in awards for reimbursement/funding
  • Ordering reimbursement "upon proof of payment by parents"
Ultimately, the SRO annuls the IHO's decision, and orders the district to reimburse parents for 75% of the costs of the program upon the parents' submission of proof of payment to the district.

Biomedical Treatment For Autism Symptoms?

Could it be?  Are they on the verge of identifying a drug capable of treating some of the symptoms of autism?  Disability Scoop reports about some promising developments:

http://www.disabilityscoop.com/2012/04/26/drug-treat-autism-core/15474/

Question: what does it mean that "researchers tested the compound on a strain of mice known to exhibit autism-like behaviors" ??

Thursday, April 19, 2012

And Your Candidates For Next Mayor Of NYC Are...

With Bloomberg on his way out, who will take the helm as mayor of NYC and lead the fight for education improvement?

Well, here are your candidates - along with a link to the article that more fully sets out their respective backgrounds, anticipated campaigns, and potential to succeed in the election . . . including commentary by the ubiquitous David Bloomfield, an education policy expert whose name appears everywhere these days when it comes to education. (The quoted text below, as well as some of the content, has been taken from the article referenced at the bottom of this blog post.)  And the nominees for best motion picture are... 

Tom Allon, Manhattan Media CEO 

"He takes issue with the mayor's emphasis on test scores and the administration turnaround program...."

Does his private sector experience and limited education experience conjure up thoughts of Cathie Black?

Bill de Blasio, Public Advocate

"We have got to bring parents to the table and treat them like stakeholders if we hope to make more progress in our schools."

According to Bloomfield, "His challenge will be to move from advocacy, where he has had the luxury of throwing darts at mayoral decisions, to operational authority, where he will have to take action regarding greater rein for his Panel for Educational Policy appointees, hard choices on school closures and co-locations, and applying budgetary discipline to such issues as class size and special education."  

* Cash prize for anyone who can clearly and succinctly describe what the role of "public advocate" entails.

John Liu, City Comptroller 

John Liu wants to shift from "mayoral control" back to "mayoral accountability" - how would one who lacks control be held accountable?  He also wants to create a moratorium on charter-school co-locations which is music to the public schools' ears.  His audits of the DOE have made him front page news in the recent weeks.  He's shown that he can come down hard on the Department, but would he be able to run it better if given the opportunity? 

Christine Quinn, Council Speaker

"I would continue my push to go further, and achieve full municipal control of schools by placing legislative authority with the City Council rather than the state Legislature."  Give the city council lawmaking power?  Is there precedence for that?  Curious to see how it would play out. 

Scott Stringer, Manhattan Borough President 

"A decade of ideological bickering and constant reorganization is enough."  

Bill Thompson, Former City Comptroller

Bill Thompson ran in the last election and lost.  What would his mark be?  For one thing, he would scale back the mayor's control over the Panel for Educational Policy (which has been thought of, at least throughout Bloomberg's terms, as a brainless puppet that does the mayor's bidding).

Read more here:
http://www.cityandstateny.com/education-mayor/ 

P.S. It's interesting to note that "special education" is mentioned only one time in the entire article.  Special education is not an issue you can get around.  Any serious candidate will need to address this head-on and come up with a realistic and practicable plan that deals with the overall need for special education, its costs, and the resources available for those children who are eligible.

Friday, April 6, 2012

SRO 12-002

SRO Appeal No. 12-002 concerns a child with Down's syndrome who was placed at an independent private school as a result of the school district's failure to provide an appropriate program.  The private school did not employ its own related services providers, instead, relying on the district to provide services to those kids whose IEP's recommended it.  The State attempts to clarify the district's obligation to provide services to a private school student, but after a discussion about the history behind N.Y.'s "dual enrollment" statute, and the proportional funding provisions of the IDEA, the answer was still unclear.

* Note: The school district accused the IHO of incompetence but the SRO declined to find it. 

OSEP Changes Its Mind About "Maintenance Of Effort"

"Maintenance of effort" has been discussed on this blog in the past.  It is the concept that a school district's special education spending, generally, may not dip below total expenditures from the previous year (though there are limited exceptions).  20 U.S.C. 1413(a).

The U.S. DOE's Office of Special Education Programs recently changed its position regarding what level of expenditure a school district has to meet in a given year, where it has failed to meet its requirements in the previous year.  I am providing a link to the letter, Letter to Boundy (April 4, 2012), which concludes that a school district's maintenance of effort obligation is not measured against what the school district actually expended in the previous year, but rather what it was obligated to expend:

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html

As stated above, there are some notable exceptions (e.g., the departure of special education personnel, a decrease in the enrollment of children with disabilities, the termination of previously-costly expenditures), which you can read more about at 20 U.S.C. 1413(a)(2)(B),(C).

* A number of advocacy organizations were involved in making this happen, including the Center for Law and Education, and COPAA. 

Monday, April 2, 2012

Today Is World Autism Awareness Day

Today marks the 5th annual World Autism Awareness Day.  See what the White House and United Nations have to say about it:

http://www.whitehouse.gov/the-press-office/2012/04/02/presidential-proclamation-world-autism-awareness-day-2012

http://www.un.org/en/events/autismday/

Are you lighting it up blue?  "Light It Up Blue" has become a worldwide, unified gesture to commemorate autism awareness day around the globe, and has resulted in some picturesque images:

http://www.lightitupblue.org/Markslist/home.do

Other related content here:

http://www.autismspeaks.org/what-autism/waad

http://timesofindia.indiatimes.com/city/delhi/World-Autism-Day-Awareness-and-empathy-can-embolden-autistic-people/articleshow/12504856.cms

Thursday, March 29, 2012

Who Pays For A Child's Education Costs?

The question of who is responsible for paying a child's education costs, which usually boils down to the issue of where the child resides, can become a contentious issue.  I thought I would share this one example, which just came across my desk as part of the New York State Bar Association's law digest.

In Board of Ed. of the Garrison Union Free School District v. Greek Archdiocese Institute of St. Basil (a mouthful, I know), the issue concerned foster children and what school district was legally obligated to cover the cost of their education - should it be the district where the foster care home is located, or the district where the child's parents reside?  Education law section 3202 states that a child of school age "is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition."  The court held that *residence* means the district of the child's last permanent residence - i.e. where the child's parents live - and not the district where the temporary foster placement is located.  (In a previous case, Catlin, the Court of Appeals held that it still goes by the parents' district even where the child is living with a family member in another district.)  What about cases where the child's parents have passed away or their is no possibility of the child returning to them - should their residence still determine who is responsible for the child's education?  Should there be a distinction between biological parents and adoptive parents?  The court did not explicitly address these points.  Ultimately, it granted the school district a declaratory judgment indicating that St. Basil, which was located in the Garrison school district, could enroll its children in the Garrison public schools for free. 

Autism Awareness Month

Sunday, April 1 kicks off autism awareness month.  Some may be interested in the following event:


Autism Story Book Mom – Annette Schroter
& United New York Early Intervention Providers
(UNEIP) – Leslie Grubler
Present:
Illuminate the Unisphere
In Pink and Blue for Autism Awareness
April 1, 2012
4:00pm to 8:00pm
Storytelling, Face-painting, Raffles and more!
(Games and entertainment for the whole family!)

Official lighting ceremony of Unisphere: 6:30 PM
 
Location: Flushing Meadows-Corona Park (at the Unisphere)

Special Honored Guests:
State Senator Toby Ann Stavisky
Assemblyman David Weprin
Assemblyman Michael Simanowitz
Councilman Mark Weprin
(list in formation)

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This year in Queens, advocates, parents, educators and elected officials have come together to celebrate World Autism Day through the lighting of the Unisphere, the largest globe in the world. Come out and join us for a great day in the park with games, prizes, raffles and much, much more to spread awareness about Autism!
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For more information please visit: www.unisphereinpinkandblueforautism.org