With President's Day on Monday, we wanted to update you on some important legal matters involving the area of Special Education Law in New York City.

As the first civil rights firm in the nation dedicated to representing individuals with autism and other developmental disabilities, it is our goal to make information regarding special education and civil rights law as accessible as possible to our clients, colleagues, and friends. Should you have any questions concerning the topics discussed in this newsletter, please feel free to contact our office.

As we have previously shared with you, currently, only a small group of impartial hearing officers (IHOs) are available to conduct the nearly 10,000 impartial hearings that are now filed annually in New York City. A 2019 New York State Department of Education report highlighted the inadequate pay that IHOs could expect to receive if they accept a matter in New York City. Last week, the NYC DOE released a revised “Impartial Hearing Officer Compensation Policy” that went into effect on Monday, February 10, 2020. Unfortunately, this policy not only fails to address the need for a meaningful increase in IHO compensation, but it also now imposes many new additional administrative tasks for which the IHOs will not be properly compensated. To make matters worse, the state is proposing to change the current requirement that IHOs be licensed attorneys, with experience and training on special education law. The state is now proposing to allow non-attorneys to serve as hearing officers.

IHOs that are currently assigned to matters are furious over the compensation policy and we remain concerned that the unduly low compensation rates will not only drive away the very talented and qualified IHOs that have been adjudicating these matters for years but will disincentivize new possible IHOs from applying to fill the shortage that already exists. We are also concerned that the hiring of non-attorney IHOs may likely deprive many families of their right to due process, among other issues. To say the least, our clients’ matters are sufficiently complex and involved to warrant continuation of the current hearing officer eligibility system which requires IHOs to be attorneys.

Last Friday, New York Legal Assistance Group and Sullivan & Cromwell filed a class-action lawsuit claiming that the city and state education departments — which both have roles overseeing the complaint system — have “acted with deliberate or reckless indifference” to students’ rights. Unfortunately, this class action lawsuit focuses on one of the many issues families are facing. Still, one thing is for sure, the hearing system is under attack, and families are paying the price. With that said, our team is not sitting back, simply waiting for things to get better. In addition to working on the front lines representing you and your family, we are also working behind the scenes to move this very broken system forward.

A number of our client families and a number of private schools have reported that the DOE is already underway in scheduling IEP meetings for students. One school, in particular, stated that last year they had 5 IEP meetings before the start of the 2019-2020 school year, but this year,they already have had more than 30 IEP meetings. Over the coming weeks and months, we will continue to analyze our clients’ experiences at IEP meetings and identify any trends. If you have any questions or concerns, please reach out to us.

Eric Tacher is the firm's Reimbursement Specialist. There are two fundamental aspects of Eric’s work. If your case invokes pendency entitlements, Eric works closely with your family and the DOE to make sure that the funds attached to your pendency rights are recovered as soon as possible.

Eric also goes into high gear when your case settles or is decided in your favor by the hearing officer. Eric routinely and frequently follows up with DOE personnel (many of whom he has worked with for years) on all of these matters to keep your cases high on the DOE’s radar.

We know and understand just how important it is for our client families to be able to have the funding for programs and services timely provided. We are doing everything possible to expedite the recovery of your money and to implement the services your children need.

On January 13, 2020, Governor Phil Murphy signed the " Applied Behavior Analyst Licensing Act " into law. With the highest autism prevalence in the country (1 in 34) and thousands of families desperate to find treatment for their loved ones, the demand for ABA services in New Jersey far exceeds the available supply of qualified and competent behavior analysts.  

 

The purpose of the law is to ensure that the practice of ABA in New Jersey is subject to regulation and control to protect the public by setting standards of qualification, education, training, and experience for individuals practicing ABA. There are several exceptions to the licensing requirement, but if you reside in NJ and your child receives ABA therapy, you should familiarize yourself with the law, the exceptions and discuss with your attorney how this law may have an impact on your child's educational program and/or due process proceeding.   

 

 "This pivotal law provides the State of New Jersey with the legal authority to protect consumers, employers, and state agencies from individuals who make false claims regarding the necessary competence or whose practice is not consistent with the profession's ethical and disciplinary standards," said Suzanne Buchanan, Psy.D., BCBA-D, Executive Director of Autism New Jersey. Such a combination of high demand and low supply creates a fertile environment for untrained professionals to capitalize on this need. Without the protections afforded by this law, such individuals were free to falsely portray to unsuspecting families that they can provide ABA expertise.   

 

Jackie Devore, a senior attorney in our office who represents many NJ client families, said: “This truly is a win for families in New Jersey, and for the licensed ABA therapists who work so hard helping individuals with autism lead more productive lives. We remain hopeful that this law will positively impact our NJ client families and provide proper oversight of the provision of ABA services.”