Get Ready for Back to School (sort of...)

What Will the 2020-2021 School Year Look Like? 

No one really knows.  The New York City Department of Education (DOE) has recently created a 109-page “School Reopening Plan.”  That document, however, itself notes that the DOE’s “plans must be nimble so we can adjust and update as needed, as the public health landscape continues to evolve.”  Notwithstanding the (understandable) lack of certainty, parents are encouraged to review the DOE’s School Reopening Plan as it provides at least some insight into a lot of different areas such as Health and Safety (pages 15–34), Transportation (pages 43–44), School Scheduling Models (pages 52–58), and Special Education (pages 70–71).  The New York magazine has also posted an article, What Will the First Day of School Look Like?, that our readers may find interesting.

“Blended” Versus Fully-Remote

Many parents of students with disabilities are in the process of deciding between a “blended” learning program (some days in-person; some days remote) and a fully remote learning program for September.  There is no easy decision as to which program to choose, and we certainly would not say that one choice is categorically better than another.  As is always the case, the appropriateness of a student’s program must be viewed in light of the student’s circumstances—what might be appropriate for one student, may not be appropriate for another.  In making a decision regarding a student’s program, parents (as always) are encouraged to find out a much as possible about what is being offered.  Parents, for instance, should reach out to their children’s schools to inquire how their student’s IEP mandates will be met and—more generally—how their student’s unique needs will be met (which is not always the same as the IEP mandates). 

Stay Informed! 

The DOE is offering citywide information sessions (on 8/12/2020 and 8/27/2020) for families and students in anticipation of the 2020-2021 10-month school year.  Additionally, the most up-to-date information from the DOE can be found here.  Our friends at Advocates for Children of New York (AFC) also have some helpful COVID-19 related information that can be found here.

Be Conscious of “Compensatory” Services and Independent Educational Evaluations

COVID-19 has been devastating in so many ways.  Fortunately, it has not altered the fundamental rights of students with disabilities under the Individuals with Disabilities Education Act (IDEA).  Although it is our hope that schools will meet the needs of students with disabilities through remote and blended learning models, we imagine that not all will do so.  If your child’s needs are not being met or were not met previously, you may have a claim against the school district for services to compensate your child.  That is to say, the school district may be obligated to fund whatever services—for example, individual tutoring or related services—that are necessary to get your child to the level your child would otherwise have been (but for the school district’s failure to provide an appropriate educational program or related services). 

Compensatory services can be requested at an IEP meeting or through the impartial hearing process, if necessary.  Before requesting compensatory services, however, parents ought to consider seeking an independent educational evaluation (IEE) in order to determine what their children actually require.  Like compensatory services, IEEs can be obtained through public expense.  Thus, low-income families should not think that compensatory services or IEEs are outside their grasp.  Relatedly, our website provides links to a number of non-profit organizations that assist low-income New Yorkers in obtaining evaluations and services.

Parents and Their Students with Disabilities Routinely Denied Due Process in NYC

On June 6, 2019 our office posted a blog entitled, “Crisis Looming: Report Finds Problems with NYC Impartial Hearing Office.”  That blog post discussed a state-commissioned report, in which the reviewer’s preliminary findings suggested that a crisis was imminent in New York City, potentially threatening students’ access to due process.

Although our office and other advocacy organizations did not expect a quick fix, we were hoping for something more.  Unfortunately, at this point the previously imminent crisis appears to have been realized.  Parents and students in NYC are being denied due process as a result of a broken impartial hearing system. 

The IDEA envisions a swift hearing and decision process.  Following the submission of a due process complaint there is a 30-day resolution period.  Often times (the majority of times in our office’s experience), the district’s representative during such meeting is not even authorized to offer a parent’s requested relief.  Within 14 days after the 30-day resolution period ends (with some exceptions), the formal hearing process is supposed to begin.  And within 45 days after the 30-day resolution period ends (with some exceptions), a final decision is to be issued. 

It is a rare occasion (at least in the experience of our office—and the experience of other attorneys and organizations we’ve spoken with) that the timelines referred to above are adhered to.  In fact, as a recent Chalkbeat article reports, the impartial hearing “process…by law is supposed to take under 75 days – but…stretched 225 days on average last school year, according to the February state analysis.”

One of the most significant problems with the NYC impartial hearing system is what is colloquially referred to amongst special education attorneys as the “recusal carousel.”  For a variety of reasons—including that NYC impartial hearing officers aren’t paid enough—there are significantly fewer hearing officers than necessary to address the enormous amount of complaints that are being filed yearly.  As a result, the few hearing officers that are on rotation often have to recuse themselves as they don’t have the capacity to timely hear cases.  For any individual complaint submitted, multiple (e.g., more than a dozen) recusals can occur before a hearing officer actually keeps the matter—and it may take several months for the matter to actually be heard; an additional several months for a decision to be issued; and an additional several months for the order to actually be implemented.

Hopefully, articles like Chalkbeat’s, “NYC advocates demand ‘immediate action’ to overhaul special education complaint system,” and blog posts like this, will bring awareness and serve as a catalyst for immediate reform.

Crisis Looming: Report Finds Problems With NYC Impartial Hearing Office

A state-commissioned report recently found significant process failures in New York City’s special education hearing system.  Although not a formal audit, the analysis, conducted by Deusdedi Merced of Special Education Solutions, LLC, was meant to identify practices that were either inconsistent with “standard and best legal practices” or impediments to the timeliness and efficiency of the system.  The reviewer’s preliminary findings suggest that a “crisis” in New York City is imminent, potentially threatening students’ access to due process.

The reviewer’s discussion is framed around the considerable and expanding number of complaints filed in New York City, the focus of Chalkbeat’s recent article covering the external review; the overwhelming number of due process filings in New York occur in New York City alone.  In fact, they have comprised over 90% of yearly complaints filed statewide since the 2014-2015 school year.  Moreover, in the most recent available data, i.e., the 2016-2017 school year, the state’s complaints totaled the combined numbers of California, New Jersey, Illinois, Pennsylvania, Texas, and Florida, the six states that are most comparable to New York in terms of size, demographics, and special education delivery issues.  Most alarmingly, though, between the 2014-2015 and 2017-2018 school years, New York City has experienced a 51% increase in the number of complaints filed, with the average number of matters seen per day growing from 55 to 122 and the average case length similarly growing from 149 days to 225.  In stark contrast, the number of hearing officers and hearing rooms for these cases have stayed stagnant throughout this period.  It is no surprise why a review of the hearing system was announced on January 24, 2018 by Assistant Commissioner Christopher Suriano (on file with the New York State Education Department).

The recently released report aligns with New York State Education Department (SED) and Assistant Commissioner Suriano’s review plan, focusing on four key areas that would help better understand the functioning of the hearing system (i.e., the New York City Impartial hearing Office, or NYCIHO).  These areas were: (1) the assignment of hearings to Impartial Hearing Officers (IHOs); (2) the payment structure for IHOs; (3) the specific assistance provided to IHOs by NYCIHO; and (4) the observation, availability, and suitability of hearing room spaces.  In short, the reviewer concludes that certain extant practices (see the original report for details) may ultimately incentivize delays and reductions in the quality of legal proceedings.

Among others, recommendations include (1) initiating a plan to revise the IHO appointment process to ensure the availability of hearing officers prior to their appointments, rather than after, and to subsequently limit recusals to personal or professional interests that would conflict with their objectivity; (2) adopting a policy that compensates IHOs for all prehearing, hearing, and post-hearing activities that are consistent with appropriate, standard legal and best practices; and (3) expanding the number of hearing rooms and private spaces for parents and their attorneys, improving their ventilation and temperature control, sound proofing, and access to amenities like printers.

Quoting President Kennedy’s warning about the costliness of long-term inaction, Merced finishes with “[t]o this reviewer, there is no doubt: the time for decisive action is now,” for, according to him, SED will be measured not by what it learns from the report, but by what actions it takes moving forward.  We at The Law Office of Steven Alizio are hopeful that administrators will heed the call.  In the meantime, we will continue to fight to ensure our clients’ right to due process is respected.

Autism and Effective Behavioral Treatments: Don’t Medicate, Educate!

By Ilana Slaff, MD

Editor’s Note: Dr. Ilana Slaff is a psychiatrist specializing in autism spectrum disorders.  She completed an autism research fellowship at Mount Sinai Medical Center in New York, has lectured internationally about diagnosing and treating autism, and has testified at public hearings before the FDA and other bodies.  She is the author of Don't Medicate—Educate!: One Family, Three Cases of Autism, Safe Treatment for Dangerous Behavior, a book that chronicles her own experiences as the sister and mother of people with autism and ways to determine effective treatment.  We would like to thank Dr. Slaff for contributing this guest content to our blog!  If you would like to submit a guest blog post related to students with disabilities, please let us know.

For students with autism, an appropriate functional behavior assessment (FBA) can be the key to their success in school and in life.  I have seen this play out in my own family through my identical twin brothers and daughter with autism.  My brother, Matthew, and my daughter, Talia, received applied behavior analysis (ABA) and have not needed medication.  In the case of my other brother, Stuart, our family unfortunately could not obtain funding for effective treatment.  As a result, instead of being provided with treatment such as ABA, Stuart was prescribed twenty medications at once, mostly psychiatric or to manage side effects.  

To be useful, an FBA needs to examine the antecedents and consequences of a behavior to find out why the behavior is occurring.  Different behaviors can have different functions and each FBA needs to examine behaviors separately.  For example, an aggressive behavior may be to simply avoid performing a task whereas self-injury may be to both avoid tasks and to provide self-stimulation. 

Unfortunately, school districts often lump all of a student’s behaviors together, regardless of their different functions.  A quality FBA, however, will look at each behavior individually, thereby determining the plan necessary for the student to improve without the use of medication.  For instance, in the past Matthew and Talia each frequently exhibited dangerous behaviors—in both cases, the frequency and intensity of those behaviors have substantially decreased without medication.

Prior to starting his ABA program, Matthew required surgery due to his head banging and was in the hospital for more than five months.  He also often engaged in self-injury and aggression.  Since beginning his program, he is currently on seven positive behavior contracts—when not exhibiting problem behaviors, such as head banging or aggression, for specified periods of time, he earns breaks and access to preferred activities and he loves earning his preferred reinforcers.  As a child, my family had to often cancel trips due to his behaviors, and while in the hospital he certainly could not go anywhere.  After starting his ABA program almost thirty years ago, however, he has been off medications, successfully visited Niagara Falls with my mother and accompanied by school staff, and now has a paid job at his program. 

For over 11 years, Talia has attended a school that provides intensive, one-to-one ABA instruction.  The intensive ABA program has helped with her aggression, pica, mouthing objects and food stealing.  Moreover, Talia’s school has an effective behavior intervention plan (BIP) in place.  Talia has benefitted from differential reinforcement of other behaviors (as has Matthew) and from an interruption procedure.  After going an average of five minutes without any of the above behaviors, Talia earns a token on her board.  Tokens are objects such as pennies, stickers or checkers that can be placed on a board for desired behaviors, and after earning a previously specified number of them, the tokens can be exchanged for preferred items.  After earning nine tokens, Talia can exchange them for a preferred reinforcer.  If she engages in a problem behavior, there is a procedure called response cost where she loses her tokens and has to start earning them again.  She has learned to stay seated for longer periods of time and can participate more fully when in the community, such as at a restaurant.

Unfortunately, Talia’s case isn’t the norm.  Many school districts often have a hard time providing consistent individualized intensive BIPs due to a lack of training and supervision.  For example, some individuals will respond to token boards, earning preferred items after a previously specified number of tokens, but may require variable reinforcement where the time intervals for earning tokens changes.  Some individuals are not ready for token boards and need the preferred item itself after not exhibiting a behavior in order to be effective.  Schools will sometimes request that families medicate their children without first implementing an appropriate BIP (which is particularly troubling given that school districts are not qualified to prescribe medication, and a recommendation for medication cannot be legally included on a student’s individualized education program).

But medication use in unnecessary circumstances can have untoward and even dangerous side effects.      

My brother Stuart, for whom we could not obtain funding for ABA, has unfortunately been repeatedly hospitalized for his behaviors, often sleeps throughout the daytime, and has had life-threatening side effects from his medications which required hospital visits.  Individuals with autism and intellectual disabilities may also be more susceptible to certain side effects such as seizures and diabetes.  Individuals with limited communication skills may not be able to express their side effects, resulting in them being detected only when life-threatening.  Altered pain sensitivity may also prevent these individuals from realizing they are experiencing a side effect until it is too late. 

We must make sure children are at a placement which can adequately treat their problem behaviors as well as address their academics.  While there is a place for psychiatric medication, medication needs to benefit the child and not the placement.  Medication should never replace education.

Disclaimer: Guest blog posts do not necessarily represent the views of The Law Office of Steven Alizio, PLLC.

Children’s Mental Health Leader Spotlight: Emma Stone

Actress Emma Stone is frequently in the news, whether for starring in Easy A, winning best actress for La La Land, or for her new Netflix series Maniac.  But this week, she made headlines for something completely different: she is the newest board member of the Child Mind Institute, a national organization that provides resources and support to children with mental health and learning disorders (as well as a sponsor of our upcoming 2nd Annual Know Your Rights conference).

So what’s the connection?  In the past few years, Stone has often spoken publicly about her experiences with anxiety in order to try to reduce the stigma that often comes along with mental health issues.  In a video for the Child Mind Institute’s #MyYoungerSelf campaign, she wanted to make sure children know that they are not alone.  “Everyone experiences a version of anxiety or worry in their lives, and maybe we go through it in a different or more intense way for longer periods of time, but it’s not—there’s nothing wrong with you,” she said in the video.

Stone traces her anxiety back to when she was about seven years old, according to an interview in Rolling Stone.  She says in the interview: “When I was about seven, I was convinced the house was burning down.  I could sense it.  Not a hallucination, just a tightening in my chest, feeling I couldn’t breathe, like the world was going to end.  There were some flare-ups like that, but my anxiety was constant.  I would ask my mom a hundred times how the day was gonna lay out.  What time was she gonna drop me off?  Where was she gonna be?  What would happen at lunch?  Feeling nauseous.  At a certain point, I couldn’t go to friends’ houses anymore—I could barely get out the door to school.”

But Stone said seeing a therapist helped her a lot, as did improv and acting, when you have to be present in the moment rather than worrying about the future.  She also drew a book for herself to visualize what happens when she listens to her anxiety rather than continuing to go about her day: “I drew a little green monster on my shoulder that speaks to me in my ear and tells me all these things that aren’t true.  And every time I listen to it, it grows bigger.  If I listen to it enough, it crushes me.  But if I turn my head and keep doing what I’m doing—let it speak to me, but don’t give it the credit it needs—then it shrinks down and fades away,” she told Rolling Stone.

While Stone still panics sometimes, she continues to manage her anxiety with coping mechanisms that work for her, such as therapy and meditation.  She also tries to keep conversations about anxiety out in the open, she said on a panel with Dr. Harold Koplewicz, president of the Child Mind Institute.  Upon announcement of her role on the board of directors, she said she is proud to join a “stigma-shattering” organization and “be of service to children and teens across the nation with mental health or learning disorders.”

If your child struggles with anxiety or other disorders, check out some of the Child Mind Institute’s free resources.

Cheers to a New Year!

As 2018 comes to a close, we want to reflect upon—and thank all our clients and supporters for—the successes of the past year.  We're also excited about what 2019 has in store!

LOOKING BACK AT 2018

This year, we have:

• worked to secure appropriate educational evaluations, services, and placements for dozens of students with disabilities;

• hosted our first annual Know Your Rights Conference at Columbia Law School (cosponsored by Columbia Law School's Education Law and Policy Society, and INCLUDEnyc);

• worked with the ARISE coalition and others to obtain increased funding for accessibility improvements in NYC school buildings;

• conducted trainings in—and made presentations on—special education law topics to parents, lawyers, social workers, neuropsychologists, educators, and other professionals throughout New York State;

• published guides to developing IEPs and 504 Plans; and

• most importantly of all, continued to learn from and work with dedicated parents, students, and educational and related service providers across New York City.

LOOKING FORWARD TO 2019

We also look forward to more great things to come in 2019, including achieving more victories for our clients and continuing to provide information and resources to parents and educational and related service providers throughout the state.  Check out our upcoming events page to stay up to date with our activities, including tabling at the INCLUDEnyc fair in January!

And always remember to check out our resources page or contact us if you have any questions!

Executive Function Skills: A Foundation for Success at School & Beyond

By Brittany Peterson and Jackie Stachel, Executive Function coaches at Beyond BookSmart

Editor’s Note: We would like to thank Beyond BookSmart for contributing this guest content to our blog!  If you would like to submit a guest blog post related to students with disabilities, please let us know.

Imagine a builder getting started on a new home.  Maybe he’s behind schedule.  There’s pressure from the owners.  He knows that the foundation has to go in before he can build but maybe he can find a way to get back on schedule by modifying his approach.  He digs a shallow hole and saves a whole two days there.  He calls up another contractor and gets a rush pour on the foundation.  He saves a day by getting started while the cement is still curing—it seemed mostly dry, so that’s fine, right?  He starts putting up that house, but guess what?  At every turn, he sees the problems he has caused by neglecting a proper foundation.  Walls aren’t straight, doors slip out of alignment, and the cracks in the inadequately dried cement invite a torrent of water into the basement every time it rains.  All because he didn’t take the time and effort to build a solid foundation.

What does this scenario have to do with your child’s school performance? (Stick with us here…)

Photo by Santi Vedrí on Unsplash

Before a student can ace that algebra test, master that 3rd declension in Latin, or complete a semester-long history project, they need to have a solid foundation of skills that help them to be productive.  They need to learn how to manage themselves: be organized, initiate tasks, complete tasks, plan out their work, manage their time, and try to keep cool when the going gets tough (and it always gets tough!).  These are executive function skills—the ones that help a student function like an executive and be the boss of their own life.  And school is a student’s job, right? Students need excellent executive function skills to do well at their jobs.  And just like the unfortunate builder in our opening scene, nothing seems to work right when the foundation is weak.

Symptoms of Weak Executive Function Skills

Without good executive function skills, we can think of these examples as symptoms of a shaky foundation:

1) A student who can talk up a storm about Renaissance armor but can’t get a word on the page for a 10-page research paper.

    Foundational skills needed: Task initiation, planning, organization

2) A student who’s in such a last-minute panic over a project that the whole house turns into full-on crisis mode.  (There may be tears...there may be raised voices.  We're not naming names here.)

    Foundational skills needed: Time management, planning and prioritizing, emotion regulation

3) A student who’s got pencils in his sock drawer, socks in his locker, and overdue homework scrunched in the recesses of his backpack.

    Foundational skill needed: Organization

Students who have a wobbly foundation in executive function skills may have trouble reaching their true academic potential; in essence, they are always making quick temporary repairs to their shaky foundation by asking for extensions on assignments or begging for bailouts from parents. 

Parents often find themselves faced with a dilemma of either constantly helping their children make these "quick fixes" or watching them flounder and struggle.  The real solution is for students to learn the skills that help them be productive and organized.

That foundation helps students build a successful outcome at school and beyond.

Disclaimer: Guest blog posts do not necessarily represent the views of The Law Office of Steven Alizio, PLLC.

Chancellor’s Capital Budget Proposal Takes Important Step for Accessibility

NYC Department of Education (DOE) Chancellor Richard Carranza took an important step last week to make public schools more inclusive for students with disabilities by proposing an additional $750 million over the next five years to make at least a third of schools in each public school district fully accessible.  The announcement is a vital step in creating inclusive public schools for students with disabilities so that they can fully enjoy all the resources the school system has to offer. 

The proposal echoes the funding amount that Advocates for Children suggested in a report last month, “Access Denied,” and responds to persistent advocacy from groups like the ARISE coalition (of which The Law Office of Steven Alizio, PLLC is a proud member) that urged the DOE to include funding in this plan to meet accessibility goals.  The Access Denied report documented how only about 20 percent of schools across the NYC system are fully accessible to students with disabilities.  Other schools that are partially accessible may have certain areas that are off-limits to students with disabilities; for instance, a school may have an accessible first floor but no accessible way to get upstairs.  

Carranza’s proposal is the first step in the capital plan process, which happens every five years.  The current proposal lays out all of the new construction and building improvements the DOE wants to fund for fiscal years 2020 to 2024, and proposes spending $17 billion in total.

Across the city, more than 200 NYC school buildings are more than 100 years old, which means the city would have to demolish and rebuild many of them to make them fully accessible, the DOE told Chalkbeat recently.  For that reason, the capital plan focuses its spending on bringing partially accessible schools up to fully accessible standards rather than prioritizing schools that are not accessible at all.  According to Chalkbeat, the DOE said that these improvements will range from “‘really easy fixes,’ such as adding ramps for wheelchairs, to ‘very big overhaul projects,’ such as building access to a second-floor gym.”

In addition to improvements in building accessibility, the total capital budget proposal of $17 billion includes plans for more permanent classroom space—although this will not necessarily mean smaller class sizes—air conditioning, and technological improvements, all of which could benefit students with disabilities by increasing comfort and access to learning materials in diverse formats, depending on how the school system implements those improvements.

As Advocates for Children said in response to the capital plan announcement, the increased accessibility will “literally open the doors” for students with disabilities.  But we hope that the DOE does not stop there.  Having only a third of schools in each district accessible can still impose hard limits on where students with disabilities can learn, what school events parents with disabilities can attend, or where teachers with disabilities can teach.  There is no guarantee that a student’s zoned school, or the one with academic programs in which they are interested, will be accessible or close enough to be feasible, particularly given the busing issues that plagued the school system earlier this year.

According to “Access Denied,” even District 75 programs, which are meant to specifically serve students with disabilities who require more intensive services than other schools can provide, are sometimes housed in less than fully accessible buildings. 

All this does not even mention, of course, the education that students get once they are physically able to access the school building.  Based on the newest data from the DOE, nearly 40,000 students with Individualized Education Programs (IEPs) did not get some or all of the services they were mandated to receive in the 2017-2018 school year.  A number of news outlets also reported earlier this year on systemic issues with IEP services and concerns about getting students the therapy services to which they are entitled.

Nonetheless, Carranza’s announcement should provide much hope.  The additional money earmarked for increasing school accessibility will improve the quality of education for countless students across the NYC system and, importantly, shows that advocacy from parents, teachers, and students does make a difference. 

The DOE will gather input from Community Education Councils and other community representatives on the proposed plan through February, and in March will submit a revised plan to the Mayor and City Council for approval, according to the timeline in the plan.  We encourage all those involved with the NYC public school system to make your voice heard throughout this budget process and continue to push for what you think will make the school system the best it can be for all students.

Systemic Problems for Special Education Students

The New York Times reported last week on T.J., a 12-year-old student with an intellectual disability who the school system has left behind.  T.J. still reads at a first-grade level.  He was not properly diagnosed until recently, and was not getting appropriate services for what he needed, according to his mother. 

Unfortunately, T.J.’s story is not unusual.  Of the some 200,000 students with identified disabilities in the NYC system, the department itself admits that about a quarter of those students did not receive the specialized instruction they need just in 2016-2017 school year—and that was a significant improvement from the year before.  The real number of students not receiving necessary services is likely even higher, as the department’s estimate assumes that all students’ IEPs currently mandate the appropriate services—a big assumption—and leaves out students who may need IEPs but have not gotten them.  On top of that, Spectrum News NY1 recently revealed that the Department of Education is months behind on payments to therapists, and as a result, students are not getting the therapy to which they are entitled.

But we want you to know that you are not alone trying to get your child the services they deserve.  If you feel your child is not getting what he or she needs to succeed, equip yourself to speak up.  Take a look at our resources page to get started. 

Bussing Issues

The 2018-2019 school year had a rough start with respect to student transportation.  The city's yellow bus company complaint line received nearly 100,000 calls within the first two weeks of school!  The chancellor of NYC schools, Richard Carranza, did not take the complaints lightly.  Carranza fired public schools support services CEO, Eric Goldstein, this past Friday, and has reassigned Goldstein's former supervisor, Elizabeth Rose, to the position of senior school transportation advisor.

If you ever experience school bussing issues, please check out INCLUDEnyc's Tip Sheet.