Bill to Clarify IEP Rights of Students with Dyslexia, Dyscalculia, Dysgraphia Passes Legislature

For many years, advocates for students with dyslexia, dyscalculia, and dysgraphia have asked school districts to use the specific language of a student’s diagnosis in their Individualized Education Plan (IEP). Unfortunately, school districts routinely refuse to do this, wrongly citing federal law as pretext.

The Individuals with Disabilities Education Act (IDEA) requires schools to provide services to students who are adversely affected by one of 13 named conditions, including those with a “Specific Learning Disability.” School district IEP teams sometimes tell parents that they can’t write “dyslexia” on an IEP, and can only use the generic term “learning disability” because that’s the name of the classification that covers it. This isn’t true. There is nothing in the IDEA preventing an IEP team from putting down “Specific Learning Disability” as the classification, while also using specific diagnostic language within the IEP document.

These labels do matter because an IEP is a binding legal document. The more specific and accurate the IEP is, the better it can serve its purpose of meeting the needs of a child—and the more effectively it can be used on that child’s benefit if a school district fails in its obligations.

It is very exciting that S.6581 /A. 8262, a bi-partisan bill sponsored by State Senator Martin Golden and Assembly Member Jo Ann Simon, has passed both houses of the legislature and will now move to the Governor for his signature. This bill directs the NYS Department of Education to issue a clarifying order to local school districts clearly spelling out the importance and legality of putting the words dyslexia, dyscalculia, dysgraphia in IEPs.

Language is powerful, and we are hopeful that saying and writing the words will help to raise awareness of the very specific needs of students with dyslexia, dyscalculia, and dysgraphia in our school system.  

If you happen to live in the districts of either Senator Golden or Assembly Member Simon, who both represent parts of Brooklyn, please take a moment to call or email them and thank them for this important legislation.

Graduation Season: A Time for Celebration

by Regina Skyer

It’s graduation season—a time to celebrate the incredible accomplishments of special education students who work so hard to overcome so many challenges in the classroom every year. 

In the spring, I make a point of trying to attend at least one graduation ceremony. It’s a good reminder of why the fight we show up for each day matters so much. 

This week, I journeyed deep into the heart of Brooklyn’s Boro Park to attend a high school graduation for Gan Yisroel Yeshiva’s special education program. The eight lovely young women I was there to witness graduate all have Down syndrome or another significant developmental disability. 

Gan Yisroel does an incredible job at integrating special education students into the social fabric of the larger school. While the girls in the special education program learn in a self-contained class, they are fully integrated into daily life and activities with their typically developing peers. When they danced with their friends this was obvious.  

As part of their graduation ceremony, each girl gave a speech. All of them expressed their gratitude to their teachers, therapists, parents, and to the founders of the school – Rabbi and Mrs. Ginsburg. Their words were eloquent, heartfelt, and there was not a dry eye in the auditorium during the standing ovation they received, marching down their aisle with their yellow corsages and certificates. This program is a shining example of what good special education is about – maximizing each child’s potential, teaching them to self-advocate, heightening their self-esteem, and preparing them to be functioning members of their community and society.  

Whether your child is stepping up from preschool or kindergarten, elementary or middle school, graduating high school, or simply closing out another year making their own kind of music from a cacophony of setbacks, comebacks, and triumphs—congratulations!

Join Us for an Adaptive Surfing Event July 8th + Introducing the INA Fund!

On Saturday, July 8th, please join us, along with the hundreds of volunteers and people with disabilities of all ages, to participate in They Will Surf Again, a free adaptive surfing event at Beach 69th Street in Rockaway Beach. This highly anticipated event is co-organized by Wheeling Forward and Life Rolls On. Most of our lawyers and staff plan to be there -- and some of us will even be in wetsuits!

There is still time to register to volunteer or to participate as a surfer. The more people who volunteer, the more people who can participate! Surfing experience is not necessary, but all volunteers must be at least 18 years old. They Will Surf Again provides adaptive surfboards and beach-transfer wheelchairs. All volunteers need to provide is their own wetsuit, fins (for deep water volunteers), and towels. Surfers will need to bring their own wetsuit, lifejacket, and towel. Wetsuits can be rented from local surf shops. Lunch and snacks are provided to all.

We are very proud to be one of the official sponsors of this incredible event via the INA Fund. The INA Fund is a nonprofit recently established by attorneys at our office in the memory of Ina Cangiano, the late mother of Skyer Law partner Greg Cangiano. Ina Cangiano dedicated her life to working with special needs children as a guidance counselor. Regina Skyer has directed all proceeds from the sale of her 2015 book, How to Survive Turning Five, to the fund. More details to come as we plan our official launch later this year. Sponsorship of They Will Surf Again is the fund’s first gift, and we couldn’t be more proud!  

Update on the DOE’s New “3-Year Agreements”

We wrote to our clients about the DOE's new 3-year settlement agreements in February after we became aware that the City might start offering them to some clients who sue for private school tuition reimbursement. At the time, we had just received our first of such offers on behalf of a client and we weren’t thrilled with the language of the offer.

Since then, more of you have heard from us letting you know that the DOE is offering you one of these “deals.” Understandably, clients have a lot of questions about the pros and cons, and each family’s situation is unique. For some, the risks and downsides outweigh the benefits. For others, the reverse is true and taking the deal makes a lot of sense.

Now that we’ve seen more of these offers come in, we want to revisit this issue again on the blog, clearly listing the pros and cons. Please note that this is based on the language of the offers we have seen thus far. The DOE could always change the terms in the future.

Pros:
•    Might speed up the tuition reimbursement process in years two and three of a 3-year agreement.
•    Might secure a settlement amount you are happy with for two additional years.

Cons:
•    If tuition increases, you are basically locked into the dollar amount you agreed to; we are only allowed to negotiate a small Consumer Price Index adjustment. Further, any negotiation of the dollar amount of your settlement completely negates the promise of a “speedier” process.
•    The agreement is void if the parent is not fully cooperating with the IEP process or if the IEP changes “significantly.”
•    The child can’t change schools without voiding the agreement.
•    The settlement must still be approved each year by the NYC Comptroller’s office—usually the slowest part of the reimbursement process.
•    Even with this agreement, the family must still go through nearly the same process: private evaluations/updates as needed, IEP meeting, ten-day notices prepared by an attorney, submission of payment and other records, and, as mentioned above, comptroller approval each year.
•    And finally: Nothing in the agreement guarantees that the DOE will settle your case in years two and three. 

That last bolded bullet point is a big one. The city could sign one of these three-year agreements with you and still decide to litigate and take your case to an impartial hearing; they aren’t promising to settle, they are promising to pay you a certain dollar amount if they decide to settle. 

In his 2014 Special Education Initiative, the Mayor promised, among other important things, to improve the speed of the tuition reimbursement process.  In politics, it’s important to be able to say you are doing something, and while we applaud any effort to make the process for reimbursement move more quickly, the greatest inefficiencies in the speed of reimbursements seem to reside in the approval process with the NYC Comptroller’s office, and the nature of this problem has yet to be fully explained or addressed. 

One final note: Some people have called to ask how they can get a 3-year agreement for their child’s case. Unfortunately, these settlement agreements can’t be requested by a parent; they are offered by the DOE on a case by case basis. It remains unclear at this early stage what criteria the DOE is using to decide who to offer them to and who not to.

    If we receive a renewable agreement offer from the DOE for your case, we will reach out to talk about the particulars of your situation.