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.

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.

July is Disability Pride Month

July is Disability Pride Month in New York City!  Join us as we celebrate individuals with disabilities throughout this month.

On July 15th, you can celebrate Disability Pride by participating in this year’s Disability Pride Parade!  The parade starts in Madison Square Park at 11AM, marches down Broadway and ends in Union Square Park.  There will be a festival in Union Square Park from noon until 3PM.  The theme of this year’s parade is Express Yourself!  Make sure to register today.

Three years ago Mayor Bill de Blasio declared July as “Disability Pride Month,” in honor of the 25th anniversary of the American’s with Disabilities Act (ADA), which, since its inception, has helped pave the way for those with disabilities to more fully participate in their communities, schools, and the workforce.  De Blasio explained that “By designating July as Disability Pride Month, we are celebrating and commending the fierce advocacy of those who have fought for equal rights for decades and reaffirming our strong commitment to making New York City the most accessible city in the world.”  The passing of the ADA was a monumental step forward to ensuring equal treatment and access for individuals with disabilities, though there is still much work to be done.

With support from the NYC Mayor’s Office for People with Disabilities (MOPD), the disability community in New York held the first Disability Pride Parade on July 12, 2015.  Since then, it has become a signature annual event to celebrate disability pride.  Victor Calise, Commissioner of MOPD, explains the mission of NYC’s disability rights movement: “to change the city’s human environment so that everyone has access, and to open people’s minds so that everyone has an opportunity to seek achievement, prosperity and fulfillment.”

Enjoy this month of celebrations! Happy Fourth of July, and Happy Disability Pride!

The Summer Transition: Six Things Parents of students with disabilities Should Consider Doing

Every child is unique, and no two families function the same way.  Parents should consider which of the ideas below (if any) will help them and their children during the transition from one school year to the next.

1. Talk About the Transition

Transition into summer vacation can be exciting, and anxiety-producing, for many students.  Simply talking with your child about their excitement, the end of the school year, and their plans with friends or wants for the summer months can help to greatly reduce any anxiety associated with the change.

Planning a daily schedule and maintaining a routine is key, especially if your child does not attend a structured summer camp or academy.  If possible, make plans with your child's friends or other familiar faces to encourage the building and maintaining of social relationships, and use it as an opportunity to experience new things - maybe go to the Bronx Zoo, the Central Park Zoo, the New York Botanical Garden, Brooklyn Botanical Garden, or the Children's Museum of Manhattan.  If your child slumps into playing video games or watching television or movies for extended periods of time, the transition back to school can be doubly difficult.

2. Understand Your Child's IEP Goals

Before teachers and specialists are out of the building, make sure you have an understanding of your child's IEP goals and how the summer months may impact them.  If you do not, you should consider contacting you child's school - a counselor should be available to walk you through any special considerations, modifications or accommodations that may be pertinent to this time of transition.  It is always helpful to have at least one hard copy of your child's information for reference, if needed, during the summer months.

3. Reach Out to Last Year's and Next Year's Teacher(s)

Communication with your child's teacher(s) can help with transitioning from one school year to the next.  Reach out to your child's current teacher to discuss what has worked well and how to set your child up for success in the coming academic year.  Even a short email can help you to evaluate what techniques and strategies should be maintained in the coming school year to best support your child's academic, social and emotional growth.

It could also be helpful to share your thoughts and concerns with your child's future teacher(s), if you know who they are.  If possible, ask if you and your child could meet their new teacher and visit their classroom.  This may help your child to feel more comfortable with the transition between grade levels, teachers, and/or schools.

4. Prevent the "Summer Slide"

Studies have shown that children, on average, can lose between between 25%-30% of their school-year learning over the summer months.  This is no different for students with special needs.  Summer learning loss can be a serious setback for students who may already be struggling.

If participating in an Extended School Year (ESY) program is an option, take advantage of it!  If your child has the opportunity to attend a summer camp which addresses his or her special needs, consider signing up.  Popular options within New York City are: PreSchool Sensory Summer Camp Program, Tech Kids Unlimited, Camp Green Tree, Theraplay NYC, Big Apple Day Program, Speech Zone, and The Quad Manhattan.

5. Say Thank You

If there was someone who advocated for and helped to support your child in his or her academic, social and emotional growth this year, simply say, “Thank you!”  A “thank you” can go a long way, and modeling how to show thanks is a wonderful lesson for your child to learn before school lets out for summer!

6. Take Time for Yourself

Parenting isn’t easy—especially for parents of children with disabilities.  It’s important for you to relax and recharge.  Find some time this summer to do something for yourself.  Meditate, enjoy the outdoors, or try a new hobby.  Take care of yourself so that you can best take care of your child!

Special Education Leader Spotlight: Margaret Bancroft

Special education has a long way to go before all of our students receive the education they deserve, but it’s come a long way from where it started!  One person we can thank for some of the advancements in special education is Margaret Bancroft, a pioneer in special education.

Bancroft was born in Philadelphia, PA in 1854.  She attended the Philadelphia Normal School and became a teacher.  When she was 25 years old, she left Philadelphia schools to open her own school in Haddonfield, NJ.  The school started with just one student!  Originally called The Haddonfield School for the Mentally Deficient and Peculiarly Backward, it was renamed in 1904 as the Bancroft Training School.

Her school was one of the first schools for children with developmental disabilities.  When she founded her school, children with disabilities were often sent to state institutions, where they were not educated at all—they were only isolated from other children and their families.  Click here to learn about the reform and closure of many institutions for people with disabilities.

Bancroft once said, “Special children must have special schools with well-trained teachers who used materials adapted to those children’s capabilities.  They should not be abandoned to state institutions where conditions were appallingly inhumane.”

At Bancroft’s school, nutrition, hygiene, exercise, prayer, and sensory and artistic development were emphasized.  Unlike the state institutions of the time, the well-being and growth of students was considered important.  Bancroft’s students also took field trips to places like circuses and museums.

Bancroft’s school rapidly expanded during her lifetime, and her legacy lives on.  The women’s club she founded, the Haddon Fortnightly, is still active.  The Bancroft organization now services children and adults with autism and intellectual and developmental disabilities.  It provides services like early intervention and at-home services, has a number of adult community living programs, provides transition services, has several rehabilitation service programs, and has a school, an early education program, and a residential program.  Bancroft works also inspired many in the medical profession to help children with disabilities, and helped changed societal views of people with disabilities.  Some of her writings are available here.

We are grateful for and inspired by the work of Margaret Bancroft, and hope that there are other world-changers out there to improve education for all children!

Understanding IEP Classifications

Every child is unique and has unique learning needs.  Individual Education Programs (IEPs) are created to make sure that there is a plan for meeting the unique needs of each child.  But of course, using categories can help educators figure out how to approach each child’s learning needs.

Under the Individuals With Disabilities Education Act (IDEA), a “child with a disability” is defined as a child who falls into one of thirteen categories, and who, because they fall into that category, needs special education or related services.  Those categories include children with intellectual disabilities, hearing impairments, deafness, visual impairments (including blindness), deaf-blindness, speech or language impairments, emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, or multiple disabilities. 

A child ages 3 through 9 could also qualify as “a child with a disability” if they experience developmental delays, including physical development, cognitive development, communication development, social or emotional development, or adaptive development.

According to the New York City Department of Education’s 2016-2017 Annual Report on Special Education, 39.8% of students with IEPs were classified with a specific learning disability, 30.9% with a speech or language impairment, 8.7% with autism, 8.4% with other health impairment, 5.6% with emotional disturbance, 3.5% with intellectual disability, 1.6% with multiple disabilities, 0.8% with hearing impairment,  0.3% with orthopedic impairment, 0.2% with visual impairment, and 0.1% with traumatic brain injury.  A very small number of students had a deaf-blindness or deafness classification.

That means that in New York City, specific learning disability and speech or language impairments are the most common disabilities, followed by autism and other health impairments.  But these are some confusing categories!  What do they mean?

Formally, a specific learning disability means “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations.”  Often, students with this classification have dyslexia (which affects reading skills), dysgraphia (which affects writing skills), dyscalculia (which affects math skills), or other troubles with listening, speaking, or reasoning skills.  

The second most common category, speech or language impairment classification, officially means “a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.”  Speech and language impairments are very common among 3-, 4-, and 5-year-olds with disabilities.  Some common kinds of speech impairments affect articulation (like a lisp or distortion of a particular sound), fluency (like a stutter), or voice (this could be sounding nasal or raspy, causing pain or endurance issues).  Language expression issues might include trouble with expressing ideas, following directions, or using grammatical patterns or vocabulary.  Students with speech or language impairments may see a speech pathologist to practice speaking, or to learn how to use assistive technology to communicate.

“Other health impairment” can be a confusing classification, since it covers so many different types of disabilities, from ADD to life-threatening diseases.  Officially, it includes students who have “limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that— Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome.”  Students with this classification might have complex medical issues.  Teachers might need to educate themselves about a child’s condition, and work with others to modify the learning environment to make it both safe and non-restrictive.

The IDEA stipulates that a child is to be designated under only one category.  This can be difficult, as a child might sometimes fall into multiple categories.  Educators will often classify the child according to the disability that affects their learning the most.  There is also a classification for “multiple disabilities” to be used when the combination of different impairments means that the student’s needs cannot be served in programs for only one impairment.  For example, if a child has an intellectual disability and is blind, then a program with students that only have one of those disabilities would not do a good job of accommodating that student’s needs. 

You might be asking now, “how much does all this matter?”  Students are given a classification based on their evaluations.  As a student grows up and their disability changes, it is possible to be reclassified after an evaluation.  But some parents wonder how important that is.  Of course, if a child’s IEP is be tailored to their unique needs, like it’s supposed to be, then the child is getting the education they’re guaranteed!  But a child’s classification can open the door to different services or schools.  We don’t want a student with autism to miss out on services for students with autism because they were mislabeled with an emotional disturbance classification or a speech and language classification.

As parents, educators, and advocates, it’s important to educate ourselves about the IDEA disability classifications.  The more we know, the more we can make sure our students are getting the education they deserve!

Unique Needs

Welcome to the inaugural blog post of the Law Office of Steven Alizio, PLLC!  We hope you’ll continue to follow us for updates on special education law and strategies to ensure each child’s individual needs are met.

Many may remember the Houston Chronicle breaking the story about the Texas enrollment target in 2016.  In 2004, Texas set a special education enrollment target at 8.5 percent—they didn’t want more than 8.5 percent of Texas students to be enrolled in special education.  The problem?  Way more than 8.5 percent of students needed special education services!  It’s estimated that, under this cap, at least 150,000 children were kept out of special education programs.  To compare, about 19 percent of students in New York City schools receive special education services—and this percentage doesn’t even include the many students with special needs that haven’t been classified.

Although the federal Department of Education did a huge investigation, and the Texas schools are recovering, the underlying problem still looms.  Too often, schools focus on what they have available for children with disabilities, rather than what the children need.

Before special education became common in the United States, many children with disabilities were either barred from receiving an education or were forced to adapt to whatever education was available.  The Individuals with Disabilities in Education Act (IDEA) changed that.  Special education means meeting the needs of the child—not about forcing a child to try to succeed with whatever is available.

The IDEA is about meeting a child’s “unique needs.”  Corresponding federal regulations explain that, “Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability,” and that “Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction…[t]o address the unique needs of the child that result from the child's disability….”

Parents know that it’s hard to fit a child into a box—especially when a child has as many unique and wonderful qualities as our children with disabilities do.  When pursuing a free and appropriate education for children with disabilities, it’s important to remember that children deserve to have their unique needs met—they don’t have to accept whatever’s available, or whatever the state wishes the student needed.