The Hearing Pendulum Begins To Swing Back

A Piece of my Mind ...
Gary Mayerson

I have seen a lot of change over the past 20 years since founding Mayerson & Associates. Reflecting back on the ever-changing socio-political climate, it is essential that we identify and act on new practices and policies so that we may continue to meet the needs of our client families.

Not that long ago, most client matters had to be tried and adjudicated following a full-blown due process hearing. We had no choice but to gear up for trial because, in general, the DOE allowed no other options. School chancellors might come and go, but the DOE's hearing siege continued. It was not at all unusual for our attorneys to have a hearing scheduled every day of the week. In fact, on occasion, some of us would return to the office at the end of the day after attending two or sometimes even three different hearings. We learned to juggle these hearings and, while it was exhausting, we actually became pretty good at it. We won most of those battles, with the DOE having to pay attorneys' fees in addition to the significant financial and other related relief being awarded to the student's family.

Over time, at least in part due to pressure brought to bear by the current occupant of City Hall, the DOE's hearing siege shifted gears, with more and more cases being settled. We reorganized and moved into settlement mode. By the end of the 2017-2018 school year, there was a sea change in the DOE's approach to due process filings. Looking back over that school year, nearly every DOE due process matter was able to be resolved via settlement.

Several months into the current 2018-2019 school year, it became apparent that the litigation climate was changing once again. Just as in prior school years, many of our cases were being "referred" by the DOE for settlement. However, after the initial settlement referral, we began to notice that, despite our efforts, the settlement process was dragging. We all had our theories as to what was causing the delays, but more importantly, we realized that at least some of our DOE cases were going to have to proceed to hearing. We had to show the DOE that we meant business. Accordingly, rather than wait indefinitely for promised settlement approvals that might never arrive, we restored a number of our DOE matters to the hearing calendar.

We now know more about the reason behind this year's delays. As detailed in Maria McGinley's article (below), a highly respected outside consultant hired by the New York State Education Department has publicly acknowledged in a detailed February, 2019 report that the entire hearing process is now operating in a state of "crisis" because, among other problems, there are inadequate personnel and other supports to process nearly 7,000 due process filings.

The acknowledged hearing crisis and its adverse impact on the settlement process represents a serious threat for parents who must restore and recirculate the flow of tuition funding in time to fund their child's 2019-2020 school year obligations. Most parents do not have the resources to wait indefinitely for the DOE to seek and obtain settlement approvals. This is why, at the same time that we continue to press the DOE to complete and effectuate the settlements that are waiting for final approval, we assertively confer with our client families about whether it is time to proceed to hearing. Regardless of the direction the DOE pendulum may swing, we are prepared to do what is necessary to protect and vindicate the rights of our client families.

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Commencement Speaker
Jackie DeVore

There are moments in life when you just have to pinch yourself. I am so grateful to have been invited by The College of New Jersey's Women's, Gender, and Sexuality Studies Class of 2019 to be their commencement speaker on May 24, 2019. As a TCNJ WGSS alumna myself, it was a day I will never forget and I am humbled to have been part of their special day.

The 21 WGSS graduates from the class of 2019 are women who already are changing the world as agents of change. Most were double majors, published authors and members of multiple honor societies. All of them are feminist scholar activists.

I was awestruck by the sophistication of their capstone and thesis projects, and their plans for the future. A number of the graduates were also special education or disability rights majors, and these particular graduates blew me away with the passion and dedication they already have demonstrated as undergraduates. Their professors spoke of their zeal for the fight for true, meaningful inclusion, equal access to quality and appropriate programming, and the intersection of disability with race, gender, sexuality, country of origin, and class.

As I communicated to the graduates in my address, they already are a group of unique individuals because they chose courses of study dedicated to systemic, radical change. When I left the TCNJ campus that day, I felt the most hopeful I have felt in a long time because I know that these women are going out into the world to make it a better one for all of us and our children.

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External Review Acknowledges That New York State's Hearing System Is In "Crisis"
Maria McGinley

As many of you know, there have been unprecedented delays this year in the impartial hearing process. Many families have had to wait many months to learn whether their matters were going to be referred for settlement or litigated. In New York City, even after cases have been referred for settlement, the amount of time it can take for the DOE to make a settlement offer has been unduly long. After the parties reach a settlement agreement in principle, the NYC Comptroller's office has to "approve" each settlement and this process has been longer and more involved than ever before. In a number of matters, the Comptroller's office has requested supplemental documentation (often months after the parties had reached an agreement).

In matters that have proceeded to litigation, there are a number of delays as well. Some impartial hearing officers (IHOs) schedule hearing dates that are months down the line. There have been days where we have waited with our clients in the overcrowded lunch room (or sometimes even standing in the hallway or stairwells) while we are waiting for a hearing room to open. In other instances, the IHOs have given us a small window of time and have pressured us to put on our case as quickly as possible.

From our perspective, these delays are the result of a number of problems including but not limited to: inadequate number of DOE lawyers to properly staff the amount of current cases, multiple layers of "approval" needed before the DOE can make settlement offers/counteroffers, high levels of turnover in DOE attorneys and staff, the fact that some cases are assigned to non-lawyer DOE representatives who do not have the authority to move matters along expeditiously, the fact that some impartial hearing officers (IHOs) are willing to grant multiple extensions in matters that have been referred for settlement, among others.

The problems do not stop there. On February 22, 2019, an independent report commissioned by the New York State Education Department (NYSED) confirmed what we have been saying in recent years - that the entire impartial hearing system is in crisis. Part of the problem is the sheer number of due process filings (more than 7,000 state-wide), with the bulk filed in New York City. New York State alone processes almost the same volume of due process filings as New Jersey, Pennsylvania, Florida, California, Texas and Illinois combined. The report noted an "exponential growth" in filings since 2014. Yet, the number of Impartial Hearing Officers during this same time frame has remained constant (as has hearing officer compensation - something that has not increased in 17 years). The report also noted that there are an inadequate number of hearing rooms and that ventilation, cleanliness and temperature control concerns "have largely gone unaddressed." The report made a number of recommendations that include adding support personnel and overhauling State regulations.

The State appears to have taken the independent report to heart. In May, 2019, NYSED published the DOE's "Compliance Assurance Plan" setting forth required actions to be taken by the DOE to "correct noncompliance." The mandated actions concern timely evaluations, the provision of additional space for impartial hearings, the failure to offer programs and services in the "least restrictive environment," adding personnel, maintaining a "functional" hearing system, streamlining uncontested matters, providing services mandated in students' IEPs, as well as other procedural requirements.

Our firm, by policy, follows up on every client matter at least weekly and we have implemented a number of proactive measures to hold the DOE accountable for timely moving our active matters along. We appreciate that our client families have a lot on their plate to begin with, and that delays can have a significant adverse impact on your family and your finances. As we prepare to file cases for the upcoming 2019-2020 school year, we will continue to evaluate our strategies and how we can best respond to our clients' needs. We also remain hopeful that the DOE will continue to take further corrective steps to improve the impartial hearing process, and the other problems that led to this crisis.

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How to Account for Insurance Coverage Benefits
Mauricio Bertone

These days, quite a few families will have access to insurance policies offering benefits for evaluations and related services (speech, OT, PT, ABA, etc.) When families access and receive such benefits, how must they be treated and accounted for?

When parents have the opportunity to access benefits under an insurance policy, the basic rule of thumb is that there is no "double dipping." By way of example, if you have already been reimbursed in full by the insurance carrier for an hour of speech therapy or some other service, it is not proper to be paid in full again by the DOE. You may, however, pursue a reimbursement claim to the extent of any deductibles or co-pays that prevented you from obtaining full reimbursement relief.

For planning purposes, parents should always alert us of the existence of insurance coverage at the time of engagement or as soon thereafter as insurance benefits come into play. Whether at the hearing or in the context of settlement discussions, it is important to make disclosure that there is access to insurance coverage, and most importantly, to clearly make the further record that credit will be given to the DOE for items to the extent that they are covered under the parents' insurance policy.

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Is Your Child Eligible For OPWDD Benefits?
Susan Wagner and Noelle Forbes

We are committed to making sure our client families are informed of all the resources that are available to families of children with disabilities. As such, we want to take this opportunity to inform you that you and your family may be eligible for benefits from the Office for People With Developmental Disabilities ("OPWDD").

OPWDD is a New York State agency that provides services to people of all ages with intellectual and developmental disabilities. Many children with IEP classifications of Intellectual Disability (ID), Multiple Disabilities (MD), or Autism qualify for OPWDD services. There are no age restrictions for a person to apply for OPWDD eligibility. We encourage everyone to explore this resource and eligibility.

OPWDD determines whether a person has a developmental disability and is eligible for OPWDD funded services. This administrative determination process is separate and distinct from the legal proceedings in which we represent our clients. Services provided by OPWDD are not an alternative to the FAPE (free and appropriate public education) that a school district must provide to a child with a disability. OPWDD, however, offers a wide range of supports and services that parents of children with developmental disabilities can access. For further information, please contact your local OPWDD office or visit the OPWDD website: opwdd.ny.gov

Most OPWDD services are funded through the Medicaid Program, including a special Medicaid Waiver called the Home and Community-Based Services (HCBS) Waiver. See Jean Marie Brescia's article below for additional information.

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Is Your Child Eligible for "Medicaid Waiver" Benefits?
Jean Marie Brescia

New York State's Office for People with Developmental Disabilities (OPWDD) provides funding for supports and services for children with developmental disabilities under the age of 18, without regard to families' income, through a "Medicaid Waiver" program. It is characterized as a "waiver" program because parental income is not part of the eligibility determination.

Medicaid waiver funding can cover a wide-range of services such as summer and other special needs recreational programs, music and arts programs, parent training and consultation, behavioral services, support groups for parents and siblings, respite services, and community programs.

The application process starts with a telephone call to OPWDD's intake number at (631) 434-6000 and a follow-up telephone call from intake personnel to commence the eligibility and enrollment process. Medicaid waiver applications require an evaluation to be submitted. OPWDD makes free evaluations available through specified agencies. Parents must attend an introductory presentation about OPWDD. These free presentations are held monthly in each county. Once OPWDD makes an eligibility determination for a child, then parents secure a care coordinator from an approved care coordination agency. The overall application process can be lengthy.

It is important to note that at age 18, the Medicaid waiver becomes standard Medicaid for your child without having to go through a separate application process. When children transition from educational programs provided by school districts to adult programming, they will need Medicaid for acceptance to adult programs. We encourage families to explore eligibility under the Medicaid waiver program early on in order to benefit both from services in the near term as well as to start preparing for the eventual transition to adulthood.

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We hope that everyone has a peaceful and fulfilling summer!

 

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