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, July 24, 2013

NCLB: What Roles Should Federal And State Governments Play?

As Congress considers reauthorizing/replacing the ever-controversial No Child Left Behind law (see http://www.nytimes.com/2013/07/19/us/politics/education-proposal-in-house-could-replace-no-child-act.html?emc=tnt&tntemail0=y), I find myself thinking about what role the federal government should play in education. The bill currently before the House is "dividing legislators along party lines." This worries me. I don't think education should be the kind of partisan, black-or-white issue that should invariably divide people into opposing camps. Republicans want to make sure that control is vested in the states and local school districts and to minimize the "footprint" of the federal government; Democrats think that if the federal government is not involved in providing funding, setting standards and benchmarks, and holding states accountable, progress will not be achieved. There is value in both positions. Neither position by itself is a solution for student academic success. Yes, standards and benchmarks are important, as is funding. Yes, state and local officials are probably in a better position to determine what's needed locally.

I'm not saying I have the final solution here. I'll get back to you with my proposal later. But it just seems like, before we can get anywhere on this issue, people need to accept that there's a gray area in which compromise needs to take place.

But about the solution...

If you have any creative, non-partisan ideas about how the federal government and state/local officials should interact with each other on the issue of academic achievement and excellence, please email me your thoughts at adayan@dayanlawfirm.com.

Friday, July 19, 2013

SRO Decision 12-152

A recent SRO decision considered the issue of direct/prospective funding for a unilateral placement.  This case has special significance for me (beyond the legal implications) and I'll tell you why.  This case is similar to one of the very first cases I took on when I first started my practice.  I should mention that the overall time frame for this case was exceptionally long: we spent a while preparing the case before filing the complaint, once we filed the complaint the proceedings were extensive, and then it took a pretty long time to receive a decision (which we did not get until April 2012).  Anyway, my clients were seeking direct funding for a unilateral placement for their son after the school district had failed to provide an appropriate program, and my clients lacked the means to pay the enormous tuition costs.  We lost that case at the IHO level.  Ouch!!  A devastating blow.  I had just started off on my own.  I had so much enthusiasm and momentum.  In some sense I felt ready to take over the world.  And there I was breaking out of the gate with a big, fat "L"?

I don't think I realized the full import of the decision when I first read it.  In my initial reading, it seemed as though we had done everything right.  We had proven that "the three prongs" should be determined in favor of the parents because (1) the district failed to provide an appropriate education, (2) the private school was appropriate, and (3) the parents had always communicated their concerns and cooperated.  Usually, when you win the three prongs...you win!!

So what happened?  The IHO had read into the law a new prong: if the parents lacked the means to pay the private school's tuition, the tuition contract must therefore be a sham and the parents must therefore be denied funding.  The IHO disregarded recent federal case law (see Mr. and Mrs. A v. N.Y.C. Department of Education) that had established that a parent's financial hardship should not be the sole basis for a denial of funding.

We quickly appealed the IHO decision to the state review officer.  I poured everything into that appeal.  And I guess it showed because the school district folded.  They decided not to continue litigating the matter.  We reached a settlement agreement whereby the district agreed to pay for the cost of the child's private school program.  Redemption!

But here we are, more than a year later, and we have another IHO decision from the same IHO coming down in a similar way.  Since the IHO's ruling in my case, courts have reiterated that parents who lack the means to pay a private school's tuition should not be denied reimbursement/funding where the three prongs (a.k.a. the "Burlington/Carter" prongs) have been proven.  Those cases also explain the reasons that this should be so.  That the IDEA was meant to protect the most disadvantaged children, including those whose parents lack financial means.  The IHO, however, thought otherwise and denied the parents claim for funding.

On appeal, the SRO disagreed with the IHO's conclusions.  SRO Bates recognized that the IHO inappropriately jumped to the question of direct/prospective funding before first determining the Burlington/Carter factors.  The SRO further concluded that "the IHO incorrectly found that the parents lacked standing after making determinations that the parents had not paid any tuition or incurred out-of-pocket expenses and that the student's private school undertook the financial risk of the student's education rather than the parents."

In the course of his analysis, the SRO also explained that, in some cases, just because a third party has funded a child's education does not mean that the child's parent should be precluded from obtaining reimbursement/funding:
[W]here there is a close familial relationship between the student and the individual who gifted the funds to the parents, it would not be consistent with the purpose of the IDEA or equitable principles to preclude tuition reimbursement relief solely because the funds contributed by a student's grandparent had gifted, rather than loaned, the funds to the parent [sic].  The IDEA was not enacted to discourage familial support of a student with a disability, and in some circumstances the IDEA itself contemplates that a grandparents [sic] may be among the individuals that may maintain an impartial due process proceeding on behalf of a student.  
After establishing that the IHO's grounds for denying funding were invalid, the SRO remanded the matter to the impartial hearing office for a determination on the merits of the parents' claims.

In light of the parents' allegations of hearing officer misconduct, the matter was remanded to a brand new IHO.

There will be a new impartial hearing, and the parents will have another opportunity to secure the funding they are seeking.  

Wednesday, July 17, 2013

Mission: Education-Related World Travel


I’ve had opportunities to travel recently, which have opened my eyes in new ways and left me wondering, What if I could travel to other countries with the purpose of learning more about foreign education systems?  I’ve always had a passion for travel and education.  What if I could combine the two interests?

A recent business conference that I attended helped shape these ideas.  One of the themes of the conference was how to turn ideas into reality.  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.

I believe this endeavor will be worthwhile for my long-term understanding about what education is, what it could be, and what it should be.   I think it has the potential to stretch my notion of education advocacy.  I believe it could open doors in the future, whatever those doors may be.

Like any big idea, this one needs a support system.  I don’t think I can accomplish it alone.  Paolo Coelho once wrote, “when you want something, all the universe conspires in helping you to achieve it.”  I invite you to help me with this mission.  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.  If this mission succeeds, I believe I will gain tremendous insight and become a more competent education attorney.  Please do not hesitate to share your thoughts or ideas about this topic.  Thank you!!

Wednesday, July 10, 2013

How Did I Get Here?

People often ask me, “How did you get into special education law?” It’s an excellent question because there are days when I wonder that myself. I look around and think, “How exactly did this happen?”

It’s not that I think what I’m doing is so objectively remarkable but, when I examine it closely, I realize that it is remarkable for me. I went to law school wanting to help people, to establish a stable career, and, probably more than anything, to buy myself time to figure out what I wanted to do in life. I decided not to pursue my deep interest in psychology because I listened to the critics. “You can’t make a decent living as a psychologist! You’re going to struggle!” I guess I was young and impressionable and, at the time, thought I was making the responsible decision of giving up my aspirations for psychology and choosing a more stable career, which I thought would be fulfilling as well. (By the way, it turns out there’s no such thing as a “career that's always stable” and the year I graduated from law school started the economic crisis that gravely changed the face of the legal job market.)

Somehow I was fortunate to find a job as an associate at a small Manhattan law firm specializing in education law. If you had asked me in 2005 what an education law firm was, I couldn't have told you, and probably didn't even know that such a thing existed. By the way, what is the significance of the year 2005? Apart from being the year I graduated from college, 2005 was also the year that I first learned about autism as part of a child developmental psychology course which I happened to be taking in London as part of a study abroad program during which I finished up my psychology major and my last semester of college. That’s where the magic started. If I hadn’t taken that exact course under exactly those circumstances with that exact textbook, etc. – there's a good chance that my interest in this area would not have been sparked.

Fast forward to 2013. That sense of amazement I was talking about before, where I wake up and wonder how I got here… I’m amazed that I ended up in a field that meshes psychology and law as much as it does. I don’t know how it happened and I certainly didn't map it out this way. I just pursued what was interesting to me. Even though I chose not to pursue psychology initially, I was given a chance to redeem myself. I found the Autism Legislation Project during law school. I worked at the legal headquarters of The Children’s Place (which, actually, has nothing to do with special needs or special education as far as I know). And then I somehow found a firm that specialized in representing children with autism and other disabilities. And after that I took the plunge to start my own law firm. And now, somehow, I have my own practice doing work that I love which involves speaking with psychologists on a regular basis, reading psychological evaluations, and learning fascinating things about child psychology and development. I consider myself really lucky to have gotten a second bite at the apple.

So what was the impetus for this post? Well, I recently came across the phrase “living a remarkable life in a conventional world” and spent some time considering what that meant. After a while, I concluded that, even though I love what I do, I wouldn’t call it “remarkable" in the sense that it's so amazing or so out of the ordinary. My wife challenged me on that point. She helped me to remember how exactly I got to where I am. And now, when I think about it in those terms, I realize that, for me, it is pretty damn remarkable after all.