SCOTUS Decides Espinoza et al. v. Montana Department of Revenue et al. And Protects Freedom Of Religion

As parents of special needs students in New York City may know, the New York City Department of Education (DOE) typically argues that, due to separation of church and state considerations ("church" here applying to religion broadly), the DOE cannot use taxpayer dollars to fund religious instruction.  

The result is that, even in instances where the DOE has completely failed to provide a special needs child with a free appropriate public education (FAPE), and the parents have been left with no choice but to enroll their child in a private special education school, the DOE refuses to provide full funding for the student's private school program if the program include religious instruction.  

While it is not uncommon for hearing officers to take a different view of this issue at impartial hearings, during settlement negotiations with the DOE, where parents seek to resolve their claims informally without litigation, the DOE's position has frustrated parents of special needs children seeking to be made whole for the cost of their child's education. 

Enter Espinoza et al. v. Montana Department of Revenue et al., a recent United States Supreme Court (SCOTUS) decision that considered the issue of taxpayer dollars being used for religious purposes.  The New York Times reported on this decision on June 30, accessible here.  

I won't recite the entire factual background, but here are a few main points: 

• Montana's Constitution barred government aid to any school controlled by a church, sect, or denomination (the "no-aid provision")
• The Montana legislature created a program to provide tuition assistance to parents who send their children to private schools; tax credits were granted to anyone who donated to organizations that awarded scholarships to students attending private schools 
• The Montana Department of Revenue chimed in regarding the scholarship program and prohibited families from using scholarships at religious schools 
• The Montana Attorney General warned the Department of Revenue that excluding religious schools from the program would very likely violate the U.S. Constitution by discriminating against the schools and their students 
• This lawsuit was brought by parents who were blocked from using scholarship funds for their children's tuition at a religious school, on the basis that the Department of Revenue's rule discriminated against them on the basis of their religious views and the religious nature of the school they had chosen 
• It is noteworthy that the scholarship organization highlighted in the decision focused on providing scholarships to families have children with disabilities 

In a 5-4 decision (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh in the majority) whose opinion was written by Chief Justice Roberts, SCOTUS held that Montana discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause under the First Amendment of the U.S. Constitution.  

As per SCOTUS, the Free Exercise Clause, which "protects religious observers against unequal treatment," empowers parents to choose a religious school if they so choose.  SCOTUS, quoting Trinity Lutheran Church of Columbia, Inc. . Comer, stated that "disqualifying otherwise eligible recipients from a public benefit 'solely because of their religious character' imposes 'a penalty on the free exercise of religion that triggers the most exacting scrutiny."  

SCOTUS held that the Montana Supreme Court was obligated to disregard the no-aid provision and decide the case consistent with the U.S. Constitution.  Parents have a right to choose the religious upbringing of their children, and many parents exercise that right by sending their children to religious school, which SCOTUS emphasized is protected by the U.S. Constitution.  SCOTUS made clear that a state's interest in separating church and State to a greater extent than the U.S. Constitution cannot qualify as compelling when looking at the infringement of free exercise.    

The same reasoning should be applied to special education due process proceedings with respect to parents' FAPE claims against the DOE for private school tuition funding.  

As Montana discriminated with its no-aid provision, the DOE discriminates based on the religious status of the schools in which parents of special needs children choose to enroll their children.  Telling parents of special needs children whose rights were violated by their local school district that they cannot recover the full tuition for a private school tuition they were forced to find on their own just because the private school includes a religious component is discriminatory.  Provided that a private school with a religious component is able to meet a child's unique special education needs, that student's parents should not be barred from recovering funding for the full cost of such program.  

The New York City DOE, like the State of Montana in Espinoza, is attempting to create a greater separation of church and State than the U.S. Constitution requires.  Preventing special needs parents whose children were denied FAPE from being able to secure funding for religious instruction is, in the words of the Supreme Court (quoting Trinity Lutheran), "'odious to our Constitution' and 'cannot stand.'"  As in Espinoza, the DOE's actions are "especially unconvincing because the infringement broadly burdens not only religious schools but also the families whose children attend them."  

While I don't expect that the DOE will stop attempting to argue against funding for religious instruction, I do believe that this holding from the highest court in our nation arms parents with the authority they need to let school districts know that this type of discrimination on the basis of religion is not permissible and cannot stand.  

New York City Expects Public Schools To Open For In-Person Classes In September

Today Mayor De Blasio announced that New York City expects public schools to open for in-person classes in September.  Social distancing rules will be followed and student schedules may be staggered.  You can read more here.  

Back To School: See And Seize The Opportunities

In our June 9 blog post, we wrote about Governor Cuomo's executive order stating that necessary, in-person special education instruction may be provided in New York State this summer.  Last week, the New York City Department of Education announced that it would not offer in-person instruction for students with disabilities this summer, despite the Governor's order.  Therefore, it looks like remote instruction will continue over the summer.

Although I do not know exactly what school in the fall will look like, there are a few things I can say confidently.  When in-person school does re-open, it likely will look different than it ever did in the past. It could include various measures including staggered schedules, face coverings, and social distancing within classrooms. Based on what our firm has seen so far, some parents are going to take a wait-and-see approach, while others are going to view their current circumstances as an opportunity. 

Here are three examples:

• Some parents who are feeling uncertain are not re-enrolling their children in private special education schools right now.  The result: coveted spots at some of NYC's best private special education schools, which typically have waiting lists, may actually have openings.  New families who are ready to act swiftly and commit to the new school year may be able to ensure their child's enrollment there when in-person schooling resumes.

• Some parents who are feeling uncertain are not pursuing evaluations to identify their child's needs and determine an appropriate program.  The result: families who are pursuing evaluations are finding that they are able to get appointments without the typical months-long wait list.  They will be able to secure evaluations on an expedited basis and will be prepared for applying to schools and justifying their child's placement to their school districts.  Those who are not pursuing evaluations now will be dismayed when the masses decide to pursue them later and appointments become scarce again.

• Some parents who are feeling uncertain are not engaging legal services.  The result: those who are engaging legal services will have the advantage of being able to file their due process complaints early.  This will minimize delays resulting from the case backlog at the impartial hearing office due to a shortage of impartial hearing officers, allow for faster adjudication of parents' claims and, if they prevail, result in faster disbursement of funds by the school district. 

 
These are trying times and no one knows for certain how the situation will develop. Don't let that stop you from taking the necessary steps to set your child up for success when in-person instruction does continue.

The Impact Of The Pandemic On Special Needs Children

I wanted to share a recent article from the New York Times about the impact the pandemic is having on special needs children.  Some of the points mentioned in the article are concerns that our clients have expressed recently to our firm.  

For example, this week I spoke with a client about her child's poor immune system and the heightened risk of complications from COVID-19 if he were to return to school.  A few days prior to that I spoke with a client whose child has been engaging in self-injurious behaviors due to frustration from remote learning.  

Our hearts go out to families who are grappling with these issues.  We are continuing to guide our clients about options they could be exploring to address their children's needs during this time of crisis and to lessen the harmful effects of the pandemic on their children's development.  

If you would like to discuss your particular circumstances and explore what you could or should be doing from a legal standpoint please feel free to contact our office for further guidance.  

Public Hearing #2 On Proposed Amendments To Commissioner’s Regulations Today At 10AM

Our May 18 blog post addressed the first of two public hearings on the proposed amendments to Sections 200.1 and 200.5 of the Commissioner’s regulations relating to special education Impartial Hearing Officers (IHOs) and the special education due process system procedures.  

Public Hearing #2 will occur this morning at 10:00.  Here is the relevant information for anyone who would like to join: 

Public Hearing on the Proposed Amendments to Sections 200.1 and 200.5 of the Commissioner’s Regulations Relating to Special Education Impartial Hearing Officers and the Special Education Due Process System Procedures

• This communication is to inform you that the public hearing scheduled for 10:00 a.m. on June 11, 2020 on the proposed amendments to sections 200.1 and 200.5 of the Commissioner’s Regulations relating to Special Education Impartial Hearing Officers and the Special Education Due Process System Procedures (see Notice of Proposed Rulemaking, I.D. No. EDU-11-20-00013-P, published in the ­March 18, 2020 State Register) will be held via Webex https://www.webex.com/.

• The June 11, 2020, 10:00 a.m. to 12:00 p.m. meeting can be accessed by Webex with the Meeting number (access code): 804 135 862 Meeting password: 29AYbBVwkA2 or by phone at 1-844-633-8697 (US Toll Free) or 1-518-549-0500 (Local) with the access code 804 135 862.

• The purpose of this hearing is to obtain public comment on the proposed regulations relating to special education due process and impartial hearing officer qualifications in the New York City special education due process system that were discussed at January 2020 and March 2020 Board of Regents meetings. The hearing is not a training or question and answer session.

• Data, views or arguments may be submitted until June 16, 2020 to: Christopher Suriano, Office of Special Education, NYS Education Department, 89 Washington Avenue, 301M EB, Albany, NY 12234, (518) 473-4818, email: REGCOMMENTS@nysed.gov

• Questions may be directed to the Office of Special Education at 518-473-2878 or speced@nysed.gov.

School Districts May Be Permitted To Re-Open This Summer For In-Person Special Education Instruction

Governor Cuomo has issued an Executive Order stating that necessary, in-person special education instruction may be provided in New York State this summer.

Based on what we've gleaned so far the order just states that school districts may choose to re-open provided that they comply with applicable federal and state guidance.  

The order does not distinguish between school districts (the NYCDOE, for example, would have greater challenges re-opening than school districts outside NYC) and we don't have any further information yet regarding how the NYCDOE will choose to proceed in light of Governor Cuomo's order.

For further reading, check out these articles from Chalkbeat and the NY Post.  

We are continuing to monitor the situation and will provide further updates as more information becomes available.  

IDEAL School Of Manhattan Launches Next Steps Transition Program

Today I participated in an information session regarding the Next Steps Transition Program that the IDEAL School of Manhattan is launching in the fall.

Next Steps is a one, two, or three year program for students aged 18-21 who require additional support to become more independent before transitioning to adulthood whether that may mean higher learning, supportive employment, or something else.

This is particularly exciting for me because helping special needs children transition to adulthood is a mission that has been close to my heart since my 2013 visit to the Ann Sullivan Center, a private special education school in Lima, Peru (see our firm's December 8, 2013 blog post for details).

Here are some of the highlights of the Next Steps program based on today's presentation:

• Skills Training  
• Individualized programming and goals to help students achieve successful outcomes 
• Student-interest driven programming to increase academic, social, vocational readiness
• Greater independence by engaging in community activities

• Student-Run Business (i.e., "School Store")
• Focus on planning, purchasing, succeeding as a business, advertising, managing inventory, customer service skills, operating cash register 
• Work on social skills, mathematics, and developing regular and meaningful customer relationships 

• Internships 
• Career-interest assessment to determine students interest and strengths and match students with internships based on their interests and strengths 
• Transition support professionals ("job coaches") provided at internship sites 
• Opportunities to practice work-related social skills 

• Academic Classes 
• Personal Finance 
• School store, banking, shopping, personal finances, making bank deposits/withdrawals, real-life functional math skills 
• Literacy & Communication
• Current events, topical discussions, public speaking, resume writing, presentations, writing emails and letters  
• Daily Living Skills 
• Maintaining a household, hygiene, other activities part of one's daily routine 
• Fitness
• Nutrition & Health
• Travel 
• Community Time 
• Technology & Coding
• Self-advocacy 
• Visual Art / Performance Art

The program will be open to both private pay families in instances where a student has received a high school diploma as well as students who may be eligible for funding pursuant to the Individuals with Disabilities Education Act (IDEA)   

Feel free to contact our office if you would like to find out if tuition funding may be available to you through your local school district based on your rights pursuant to the IDEA, or if you would like to discuss your particular circumstances further.

You can access more information about the Next Steps transition program on the school's website.  

Comptroller Will Require DOE To Secure Authority Before Starting Settlement Negotiations

The NYC Comptroller's Office will now require the Department of Education (DOE) to obtain comptroller approval for the terms of a settlement before starting settlement negotiations with parents' counsel.  

Previously, the DOE's practice was to negotiate, reach an agreement, and then seek approval from the comptroller for the agreed-upon terms.  This was problematic, however, for a number of reasons and caused significant delays in the legal process.  Some of these reasons are detailed in an April 29, 2020 letter from the Comptroller's office to the DOE Chancellor, accessible here.

As noted in the letter, city agencies, and even the DOE itself in certain types of negotiations, are already following this practice of securing comptroller approval in advance.  

We welcome this change and are optimistic, based on past experience, that this will result in efficiencies in the process of negotiating, settling, and paying parents' claims.  

Public Hearings On Proposed Amendments To Commissioner’s Regulations

Today I participated in the first of two public hearings on the proposed amendments to Sections 200.1 and 200.5 of the Commissioner’s regulations relating to special education Impartial Hearing Officers (IHOs) and the special education due process system procedures.  

The purpose of these hearings is to obtain public comment on the proposed regulations relating to special education due process and impartial hearing officer qualifications in the New York City special education due process system that were discussed at the January 2020 and March 2020 Board of Regents meetings. 

In particular, the New York State Education Department (NYSED) is proposing to modify the regulations in the following key ways: 

• Amending 200.1(x) to remove the restriction that all IHO candidates be licensed in New York State; 
• Further amending 200.1(x) to reduce the number of years of experience and/or practice for attorney candidates from two years to one year; 
• Further amending 200.1(x) to allow for the certification of non-attorney IHOs to hear complaints filed in New York City only; 
• Amending 200.5(e) to require IHOs to maintain student confidentiality; 
• Amending 200.5(j) to require IHOs to render decisions in a consistent format; and
• Amending 200.5(j)(3)(xii) to allow IHOs to conduct hearings by video conference. 

Here are some of the points that were raised during today's hearing: 

• Allowing for the certification of non-attorney IHOs would raise serious concerns because: 
• Adjudicating special education due process matters requires analyzing testimony and evidence, following the rules of civil procedure and motion practice, and ruling on objections, which a non-attorney would not be sufficiently equipped to do; 
• An IHO must be familiar with and understand how to apply legal precedent, including case law governing the procedures pertaining to litigation in this field (e.g., Jose P. and L.V.); 
• IDEA cases involve complicated and nuanced matters that require careful analysis; 
• Pro se parents who are not being represented by an attorney themselves have a right to the good judgment of adjudicators who have legal backgrounds; 
• Allowing non-attorney IHOs could result in a greater number of appeals, which would be costly for school districts. 

• Allowing hearings to be conducted by videoconference would be beneficial in many ways: 
• Greater efficiencies in the impartial hearing process, as has been observed with the emergency measures implemented during COVID-19; 
• Reduction in the current backlog by streamlining cases; 
• Convenience for parents and those needing to balance childcare or work responsibilities; 
• Safety considerations as people would not have to attend hearings in person at the impartial hearing office, which may not yet have proper protocols to address COVID-19.   

Another public hearing is scheduled for June 11 at 10:00 a.m.  The June 11 meeting can be accessed by Webex with the Meeting number (access code): 804 135 862 Meeting password: 29AYbBVwkA2 or by phone at 1-844-633-8697 (US Toll Free) or 1-518-549-0500 (Local) with the access code 804 135 862.

Data, views, or arguments may be submitted until June 16, 2020 to: Christopher Suriano, Office of Special Education, NYS Education Department, 89 Washington Avenue, 301M EB, Albany, NY 12234, (518) 473-4818, email: REGCOMMENTS@nysed.gov.

Ben Platt And The Cast Of Dear Evan Hansen Perform You Will Be Found Remotely

The emotional impact that COVID-19 has wrought cannot be understated.  Many people are feeling lost, anxious, and worried about what "the new normal" will look like.

I am diverting from the last few blog posts and posting this simply to provide a moment of diversion.

In our March 26, 2017 blog post, I wrote about the impact that the Broadway show Dear Evan Hansen had on me.  Recently I saw a video of Ben Platt and the cast of Dear Evan Hansen performing the song You Will Be Found remotely (following an intro by James Corden).

This song is particularly apt right now when so many are feeling lost and anxious.  I am sharing it here and hope that it brings you a moment of diversion and joy:

Manhattan Psychology Group Offering Family Support For Special Needs Families Dealing With COVID-19

Joshua Rosenthal and the Manhattan Psychology Group are offering a free webinar to help special needs families dealing with COVID-19.

The webinar will be 60 minute long (the last 20 minutes are for Q&A) and topics will include a 2-phase plan for the family, adult & couples self-care, signs of distress in kids, parenting tips to keep the peace, how to increase bravery in kids and tele-CBT for families.

The webinar will be repeated 18 times between April 13th to 26th.

No RSVP is required. You can just follow the directions in the link below to join.

https://docs.google.com/document/d/1urHj-akG9JhiVV9IhXYbzA8tfkFTggDCcRviyfHN5pQ/edit

TONIGHT: Free Virtual Parent/Caregiver Workshop: Navigating IEPs and Distance Learning During The COVID-19 Pandemic

Dr. Lauren Tobing-Puente, licensed psychologist, is offering a free video workshop for parents/caregivers tonight from 7:00pm-8:30pm called Navigating IEPs and Distance Learning During the COVID-19 Pandemic.

The workshop will provide strategies and time for general Q&A geared toward families of children with special needs who are experiencing enormous strain as a result of the current situation.

In particular, the following topics will be discussed:

• Strategies for distance learning (including related services) for children with IEPs
• The IEP process during the pandemic and how schools are proceeding with applications and placements
• Strategies for self-care, time management, and balancing school and family life during the pandemic. 

I am enclosing a flyer for parents/caregivers who may be interested:

Free Basic Wills And Health Care Directives For Healthcare Professionals On The Front Lines Of COVID-19

I wanted to share information from a colleague who is offering free basic wills and health care directives to healthcare professionals on the front lines of COVID-19.

You can learn more here:

Take Action Against Stimulus Bill That Threatens To Alter The Rights Of Special Needs Children

In our April 6 blog post we wrote about the stimulus bill (CARES Act) provision that threatens to alter the rights of special needs children and parents during the pandemic.

Some areas that could be affected if waivers are granted pursuant to this provision include a school district's "child find" obligation, procedural timelines, what constitutes a valid IEP meeting, a child's right to a timely IEP meeting and impartial hearing, and compensatory education for this period.

We are writing to emphasize the importance of taking action now to oppose these waivers and speak up about protecting the rights of children with special needs.

You can take action by contacting Senators Charles Schumer and Kirsten Gillibrand, as well as your representative in the House of Representatives, to tell them to protect the civil rights of children with disabilities.

Your message should state the following:

1. No waivers are needed to IDEA (as IDEA already contains significant flexibility)
2. Congress needs to provide additional funding to states so that they can meet the needs of students with disabilities during this pandemic.

For your reference, I am including a message from the Council of Parent Attorneys and Advocates (COPAA) here. You can use similar language in your email or write your own.

Below are links for you to follow to contact the appropriate individuals:

• Senator Charles Schumer - https://www.schumer.senate.gov/contact/email-chuck
• Senator Kirsten Gillibrand – https://www.gillibrand.senate.gov/contact/email-me
• Find your Representative - https://www.house.gov/representatives/find-your-representative

Ask your relatives, friends, and colleagues to contact Congress as well to maximize the impact of our efforts to protect the rights of children with special needs.

Stimulus Bill Threatens To Alter The Rights Of Special Needs Children

The stimulus bill provision that was reported by COPAA to have been withdrawn as per our 3/23 blog post found its way back into the bill.  The provision threatens to alter the rights of special needs children and parents during the ongoing coronavirus pandemic. 

You may have seen the 4/4 NY Times article summarizing the issue and what's at stake.  I am enclosing a link to the NY Times article here. . 

The passage of the new federal law with this problematic provision could result in U.S. Secretary Betsy DeVos waiving special education rules (particularly those under the Individuals with Disabilities Education Act) as school districts struggle to educate children during the ongoing crisis. 

Secretary DeVos has 30 days from the law's passage to ask Congress for the authority for waivers from the IDEA. 

We are continuing to monitor the situation and will provide further updates soon. 

Special Education Law Updates Amid Continued COVID-19 Pandemic

The purpose of this blog post is to provide some updates regarding the current legal landscape.  This post is just a snapshot of the current situation as the situation continues to change rapidly.

Federal Level
As per our previous post, the United States Department of Education (DOE) issued guidance regarding the provision of services to children with disabilities.

It also issued a fact sheet about addressing the COVID-19 risk in schools while protecting the civil rights of students. 

As reflected in this statement from the U.S. DOE, Education Secretary DeVos published a new resource ("Supplemental Fact Sheet") on accessibility and distance learning options.

Last week the Council of Parent Attorneys and Advocates (COPAA) posted a message about what it believed was a stimulus bill that, if passed, could have resulted in IDEA rights being waived by Congress as part of its response to COVID-19.  This would have jeopardized children’s rights to a free appropriate public education.  However, I am happy to share that, as per COPAA, this proposal was only floated and has since been pulled back.

State/Local Level

The New York State Education Department (NYSED) distributed a letter to all impartial hearing officers (IHOs) loosening the requirements for conducting impartial hearings.  All scheduled hearings are being held telephonically.  Please consult with our office if you have specific questions about how impartial hearings are being conducted in light of these loosened requirements.  

Remote learning goes into effect for all K-12 students within the New York City Department of Education today, March 23.

Remote learning raises concerns for students with special needs who may not have the attention span or otherwise have the ability to sit and learn distantly without an instructor physically present.  Please consult with our office if you have specific questions about how remote learning affects your special needs child.  

Private special education schools -- including both state-approved nonpublic schools (NPSs) and independent private school -- should be creating their own distance learning plans to ensure that special needs children attending private placements receive appropriate remote instruction and therapies during this period.  

You can continue to access NYSED updates relating to COVID-19 here.  

At the New York City Department of Education level, we are still seeking clarification from the Department's Office of Legal Services (OLS), Implement Unit (IU), and Bureau of Nonpublic School Payables (NPSP) about how the current crisis will affect the funding and implementation of special education programs and services as they relate to the operation of those offices within the DOE. One thing, however, is clear: the DOE will require documentation reflecting how the student’s needs were supported by the school during school closures related to COVID-19.  We expect to have further clarification regarding what documentation the DOE will require soon.

 

Other

Please note that notary rules are changed through 4/18/2020.  The modified rules allow for notary via audio-visual conference.  Follow this link below for details.

We will continue to monitor the situation and keep you posted regarding any further updates.  In the meantime, please do not hesitate to contact our team if have any specific questions or concerns.

Office Closure + Working Remotely

We are hope you and your family are staying healthy and safe during this challenging time as we continue to deal with the coronavirus pandemic.

Please note that, as of Friday, March 13 our physical law office is closed.  The office will remain closed until it is safe to re-open.  

Our team will be working remotely during this time.  Calls to our office will be forwarded to our cell phones.  We are set up to conduct videoconferencing via Zoom.  We will remain accessible via email.  

If, at any time you are having difficulty reaching one of our team members, please contact me directly to let me know. 

U.S. Department of Education Issues Guidance For Provision Of Services To Children With Disabilities During Coronavirus Outbreak

We hope that you and your families are staying healthy and sane amid the current situation.  It is a challenging time.

In response to the coronavirus outbreak, the United States Department of Education (DOE) has issued guidance regarding the provision of services to children with disabilities pursuant to the Individuals with Disabilities Act (IDEA) and Section 504 of the Rehabilitation Act.  

You can access the DOE's guidance here.

MCC Transitions Conference About Changing The World For Young Adults With Autism

This week I attended the Manhattan Children's Center (MCC) Transitions conference about changing the world for young adults with autism and related disabilities.

The concept of helping special needs children transition to adulthood is one that has been close to my heart since my 2013 visit to the Ann Sullivan Center, a private special education school in Lima, Peru that educates children with severe developmental impairments.

In my December 8, 2013 blog post reflecting on my trip, I highlighted the Ann Sullivan Center's emphasis on functional skills, job training, and supportive employment over an individual's lifetime.

This week's MCC conference reminded me of the importance of this subject.  Some of the highlights of the conference for me were Dr. Mary McDonald's discussion about the skills we should be teaching children from a young age so they are able to transition better when they approach "the cliff" (i.e., the loss of services as a special needs child becomes an adult), and a panel discussion about the programs available to adults with special needs.

We spend so much time, energy, and resources supporting and nurturing special needs children until high school graduation or, in some cases, the age of 21.  Why stop providing such support and services simply because these individuals have reached adulthood?

Click here to view recent media coverage regarding the MCC Transitions conference: