Our New Chancellor and New State Review Officer - Time for High Hopes and Expectations
By: Gary S. Mayerson

There has been quite a bit of controversy over Mayor Bloomberg's appointment of Cathie Black as the new, incoming schools Chancellor (replacing outgoing Chancellor Joel Klein), and equal controversy over the conditional confirmation of Ms. Black by Dr. David Steiner, New York State's Commissioner of Education. Some parent rights groups, fearing the worst, have filed suit to block Ms. Black's appointment.

I do not share this view.  At the Chancellor level, many of the NYCDOE's greatest challenges are financial/management in nature.  Given Ms. Black's extensive background  and track record, she deserves a full and fair opportunity to show what she can do.  If Ms. Black is able to trim fiscal and administrative waste, as is hoped, this could easily translate to a greater availability of financial resources for our children.  Just as the president of the United States must necessarily rely on cabinet level positions for specific information and advice, there is nothing untoward if Ms. Black relies upon her deputies for the "educational" issues.

At the state level, and while there are no media accounts at this time, a recent flurry of decision-making by the State Review Office ("SRO") shows that we apparently have a brand new SRO to replace the embattled Paul Kelly, who resigned his position earlier this year amidst numerous lawsuits challenging his bias and lack of impartiality.  Our firm filed a number of those lawsuits.

The new SRO making this quiet entrance is Justyn Bates.  The educational rights community does not know much about SRO Bates beyond what is revealed on internet search engines, but if the recent  decisions by SRO Bates are any indication, they may well indicate a greater sense of balance and fairness in the State Review Office.  That is, of course, all that any party to the appeal process can expect.  We will be analyzing SRO Bates' decision-making in the months to come.

Compensatory Education Awards and the 2nd Circuit Court of Appeals

By: Tracey Spencer Walsh

Where there is evidence of a “gross” failure to provide services that should have been provided, parents may be able to seek a “compensatory education” (“comp ed”) award in addition to other available avenues of relief.

In a recent case, Streck v. Board of Education of The East Greenbush Central School District, the Second Circuit Court of Appeals ordered the school district to establish an escrow account to ensure payment of a compensatory education award.  The court held that “the prevailing party’s ability to utilize that award cannot turn on its ability to finance the costs of the education awarded” and further ordered that “the value of the prospective compensatory education must be set aside by the school district and placed in escrow for use in paying up-front for the compensatory education expenses.”

The court’s decision provides that the escrow funds will only be available for three years and the parents are entitled to recover from the escrow account only the amount that they actually spend on the comp ed services for their son (i.e. they must produce receipts or bills to the escrow account manager who will then pay the bills).  The court order also directs that any money left in the escrow account after three years will be returned to the school district.  It is worth noting that here also was a reimbursement award and the court directed the payment of “interest” to the parents (normally, there is no “interest” component).

Requiring that the district escrow the comp ed award “in advance” helps ensure that the student’s services will be financed even if a school district were to go bankrupt or have any other fiscal problems or budgetary delays.  A compensatory education award can be a valuable award.  When preparing to bring a due process proceeding against your school district, you should give thought to whether or not you may have a viable compensatory education claim.  For example, did the school district recommend on your child’s IEP that she receive 5 hours of speech therapy, but actually only delivered 2 hours a week during the school year? Or, perhaps your child was mandated for occupational therapy, but there was a four month lapse in the provision of these services. You may be entitled to bring a comp ed claim for those “missed” hours. There normally is a two year statute of limitations, so you should act promptly to assess and assert any claims you might have.  As always, if you are in doubt, consult with counsel.

Gary To Speak at Manhattan JCC Feb 3

By: Doris Fernandez

On February 3, 2011, at 7:00 p.m., Gary will be speaker at the JCC in Manhattan as part of its popular "In The House" speaking series.

Whatever may be your child's eligibility classification, Gary will explain how parents can access appropriate programming and funding, including prospective ("Connors") funding.  He also will discuss strategies that can address and neutralize this year's crop of roadblocks and hurdles.

For further information, or to register, please call 646-505-5708 or log onto the JCC website, at http://jccmanhattan.org.

Tracey to Speak in Texas at
Annual COPAA Conference

By: Doris Fernandez

Tracey will be a featured speaker at the 13th Annual Annual COPAA (Council of Parent Attorneys and Advocates) conference in San Antonio, TX during March 3-6, 2011, where she will give a presentation for attorneys, advocates, parents and related service providers on "How to Prepare for Due Process." 

For more information, please go to www.copaa.net.