New York’s New 3-Year Settlements
Most special education tuition reimbursement cases follow a similar trajectory of events and timelines.
In order to vindicate their rights to tuition reimbursement (if eligible), parents must go through the process of suing their school district every year. However, recent changes to policy under Mayor de Blasio are aimed at decreasing litigation and lightening caseloads for DOE representatives, resulting in a policy where the city offers parents three-year settlements.
In our firm’s experience, these settlements do not benefit the family.
In a three-year settlement, parents waive their rights to sue in the subsequent two years.
The parent is obligated to stay in the settlement for three years without regard to increases in school tuition — typically a few hundred to a few thousand dollars each year.
Furthermore, the law requires that school districts evaluate a child’s needs every year, so it is unlawful for the school district to bind itself to a settlement for three years. Doing so contravenes that part of the federal law’s intent, and as a result, the school has the ability to release itself from some of these settlements.
Yearly Obligations: IEP & Placement
The school district is required to hold an Individualized Education Plan (IEP) meeting every year and convene with the parents, special educators from both the district and the private special education school, and other school personnel as needed.
The parents, teacher, and the school psychologist are required to participate in creating the new IEP. The purpose of the document is to detail the specific learning needs of the child so that any person who reads it would be able to implement the identified strategies.
Often, IEPs are not particularly well-crafted — either they are too vague or too specific, too ambitious or not ambitious enough. Ideally, the IEP should identify the child’s learning goals and management needs in a clear and concise manner.
In addition to the IEP, the school district needs to let the parent know what to expect in terms of placement offerings if the district is not deferring the child to the Central Based Support Team (CBST), which is given the task of placing children in a state approved non-public school.
Lastly, the school district should offer a final Notice of Recommendation that names the brick-and-mortar school the child will be attending in the coming year.
If parents decide that the designated school will be unable to carry out their child’s IEP and provide an appropriate education, they may decide to unilaterally place their child at a private special education school. If that’s what they choose, the parents must alert the district in writing as to their decision at least 10 days before the beginning of the private school’s school year or (if they change schools in the middle of the school year) 10 days before they make the jump to the new school.
The purpose of the 10-day notice is to give the school district the ability to cure any defects that the parents identified with the proposed program, usually on a case-by-case basis.
The Importance of Timing
The 10-day notice must also take into consideration whether a child is entering a 12-month program. Many children with disabilities are at risk of substantial educational regression during the summer vacation. The only appropriate placement for such children is a year-long program. In this case, the 10-day notice has to be given prior to the start of the summer program.
As an administrative matter, New York State has decided that all children graduate in June. Therefore, in order to reconcile the difference between 10- and 12-month programs, the 2018-2019 school year is determined to start right after the end of June. This means that parents must issue their 10-day notice in early June (as opposed to August for 10-month programs).
Correct timing is critical in order to ensure that tuition reimbursement is granted — and this can be daunting for parents. It’s important to note that parents and/or their attorneys can give more than 10 days notice, which would provide some leeway.
Legal Fees
There is a cost-shifting provision in the law that originally established the right of parents to sue. When cases settle, parents do not get their legal fees back as a matter of right. In a successfully litigated case, the parent can only recover the amount of legal fees that the court determines is reasonable.
Courts in the Second Circuit (e.g. New York courts) use the factors set out by Johnson v. Georgia Highway Express, Inc. to determine what is a “reasonable” fee. Those factors help judges determine the market rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,” which they then use to compare to the legal fees in the case before them.
Our firm tries to build our fees into the settlement when it’s advantageous for our client because it is possible to do so — but not in every case. Usually we negotiate attorney-to-attorney in order to settle by comparing the cost of a litigated case to the cost of a settled case that includes attorneys fees.
If you have questions about any aspect of this process, contact us to ensure that your child’s needs are successfully met.
Jonathan Gottlieb
Partner
195 Montague Street
14th Floor
Brooklyn Heights, NY 11201
Jonathan@GottliebFirm.com
(646) 820-8506