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The Leveling of the Playing Field

A recent ruling by the Second Circuit Courts of New York could make it easier for families of special education students to get the services and placements that they need most!

A few weeks ago The Mayerson Report, an email newsletter from Mayerson & Associates, outlined a recent ruling by the Second Circuit Courts of New York that can change the impartial hearing process for special education student.  The case, R.E. v. NYCDOE, hinged on the fact that when parents are looking at proposed placements or programs they have to rely on what their child's IEP explicitly states but many times the districts' testimony focuses on what they could potentially do for the student, not what they have done in the past.  This leads to the districts having an edge during the impartial hearing because although the students family's has to rely on an explicit document the district can rely on proposals and promises.  Mr. Mayerson states in the report that "This kind of "retrospective," after-the-fact analysis allowed many parents to be sandbagged at trial with a manifestly unjust "bait and switch."". 

Luckily in the recent case referenced above, the Second Circuit Courts has "finally and unequivocally held" that the State Review Officer has to play by the same rules as the families.  Mr. Mayerson goes on to say that "the courts may not rely upon after the fact, "retrospective" testimony at trial to cure a defective IEP. School districts may "explain" terms that appear in the IEP, but they cannot rely upon "retrospective" testimony at trial to provide for terms and provisions that are plainly missing from the IEP."  This means simply that they can no longer make excuses as to why they have not provided a student with an inappropriate IEP or to interpret poorly written plans to sound more meaningful than they actually are.  The State Review Officer has to look at the IEP as it is stated, not as the district interprets it. 

Mr. Mayerson continues to say that "The immediate impact of the rule in R.E. v. NYCDOE is that there is now a size-able backlog of undecided appeal cases at the SRO level that will have to be decided prospectively, rather than upon retrospective, after the fact testimony given by the school district's witnesses at trial."  This means that for once everyone will be on the same playing field when
they enter an impartial hearing! 

Hopefully this positive momentum continues for special education families and the process becomes back to being centered on what is best for the child, not what is easiest or most cost effective for the school district. 

We hope you had a great holiday season and have a fantastic start to 2013!

Until Next Time,

Kevin Gersh

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Free 2B Me January 02, 2013 at 01:02 PM
Kevin, A good article for future consideration would focus on the cause and not the effect of a District's financial construct. What I am saying is that I do not believe that any District is attempting to short change any child with special needs, but all Districts are forced to make budgetary decisions that impact children. The requirements of an IEP can be very expensive and are not fully reimbursed by State aid. Therefore, these obligations are paid for by reducing services somewhere else in schooling. Now, add a tax cap and limit revenue sources to Districts and the problem is exacerbated. Again, please consider using your bully pulpit to rally more aid from the State in support of these children and the IEPs that have become another unfunded mandate, Encouraging court action by parents of special needs children does nothing more than avert the real issue and take resources from Districts. Rally for all kids, rally for more aid, more logic, more caring, and less unfunded mandates. As for me, I am Fee 2B... me. . . . . .
Kevin Gersh January 02, 2013 at 05:53 PM
Dear Free 2B Me, I want to thank you very much for commenting on my blog. I do understand that IEPs can be very expensive for Districts and are not fully reimbursed by the State. But I do believe that there is a responsibility of all districts to service children by providing them with a Free Appropriate Public Education (FAPE) that ensures the child receives what they need. By no means am I using this blog as a “Bully Pulpit”, as you referred to it, but instead as an informative resource for parents. Unfortunately parents of special needs children do not always know what they are entitled to. It is a disservice to the children for the parents not to be aware and not to receive the appropriate educational environment that they are entitled to. Everyone, from districts to teachers to private schools to business men, has difficult decisions to make and this is about making the right decision. We will not know for years as to what decisions are right, but at this time I must speak my mind as to what I feel is right for the parents and children I work with. Thank you for your input, Kevin Gersh

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