April 3, 2020
Dear Friends:
We hope you and your family are doing well during these challenging times. We want to share the following new developments and important information.
To ensure we are as responsive as possible, sending an email to us may be the most efficient way to reach us. Please feel free to reach out to your attorney or email Sean, our office manager at Sean@mayerslaw.com, and he will set up a call, Zoom or Skype session for you.
Betsy DeVos and Special Education
In yesterday's New York Times, Erica L. Green' s article DeVos Weighs Waiving Special Education. Parents Are Worried addressed the looming waiver threat. Given Education Secretary DeVos's history and leanings, the waiver threat is an issue of obvious concern. The real firewall, however, is Congress itself. The CARE Act obligates Secretary DeVos, within 30 days of the Act's enactment, to identify provisions in IDEA that she believes should not be implemented. Congress would then have to amend the IDEA statute to take those provisions out of the law or perhaps dilute them. In previous newsletters, we have urged you to contact your representatives in Congress. Please do so now so that if, in fact, Secretary DeVos identifies significant waiver targets Congress will not take those recommendations to change the law. We will watch Secretary DeVos very carefully in the next few weeks to see what provisions she may identify as waiver targets.
Below you will find information we posted in the past on this issue:
- Included in the Coronavirus Aid, Relief, and Economic Security ActPDF Download is a provision that directs the Secretary [DeVos] to report back to Congress within 30 days on the waivers needed under the IDEA and the Rehabilitation Act of 1973 (Section 504) see pages 220-231
- If you have not done so already, please send your Senators and your Representative an email ASAP expressing your concerns:
- Find your Senators here: https://www.senate.gov/general/contact_information/senators_cfm.cfm
- Find your Representative here:https://www.house.gov/representatives/find-your-representative
- Sample Draft LetterWord Download (Word, 1 page)
Our Federal Filing Regarding Pendency Payments:
We understand and appreciate how critical it is to secure monetary relief for our client families. Securing the necessary funding in a timely manner is, of course, an integral part of the "supply chain" that is at play in funding educational programs. On Monday, March 23, our firm filed a federal enforcement action in the Manhattan district court on behalf of a number of client families to recover "pendency" monies that are due and owing. The Complaint alleges that the DOE is unduly delaying paying against "pendency" submissions. We are hopeful that this federal filing will persuade the DOE to remit pendency payments in a more timely manner. The action has been assigned to Judge Nathan.
Virtual/Remote Classes and Related Services/Therapies
- Many schools and service providers are using technology to the fullest with our clients for classes and when providing ABA, Speech, OT, and PT remotely. Zoom, Microsoft Teams, and FaceTime are just a few of the tools providers are using in tandem with games and such. If your providers are only offering you services via a telephone call (with the exception of counseling), please be sure to discuss these alternate mediums with them.
- Vendor Forms & Invoices: Many families have asked Eric questions about forms and invoices.
- Service type: On the forms or invoices your vendor submits, the "Service type" stays the same.
- Service location: On the forms or invoices your vendor submits, the “Service location” is "telehealth" or "remote session."
- Electronic Signatures: As per the DOE they are accepting invoices submitted with Electronic Signatures by parent or schools. "If the platform that is used to provide the remote service captures information of the service such as meeting date, start and end time and participants, that information should be printed and submitted with the [manual] electronic invoice to the DOE. In the alternative or if the services were rendered in person prior to social distancing mandates but signatures cannot be personally obtained at this time, please include the email chain between provider and parent or school obtaining the electronic signature."
- Records and Documentation Needed: In addition to our update regarding documentation, The DOE has begun to add language in their settlement offers that their offer is also subject to receipt of satisfactory documentation reflecting how the student's needs were supported by the school/provider during school closures or extended period of absences. The DOE's language is vague and does not define or give examples of "satisfactory documentation." In light of this, we recommend that you maintain a record of each of your child's remote learning sessions to the best extent possible. We also encourage you to take selective short videos showing what your child's remote learning looks like. If you are able to create an electronic file (such as Google Drive folder) as a depository of this information, please do so in order for it to be easily accessible and shared if needed.
We realize we have been sending you a lot of information. If you have any questions or need any clarification, please reach out.
Wishing you and your family safety, health, and perseverance.
Mayerson & Associates