Read All About It! Fall, 2016
Transgender students and how to address their unique educational needs in a school setting is a topic that has been in the forefront of the news of late. This can be credited to the U.S. Department of Education’s Office of Civil Rights (“OCR”) December 2014 opinion letter “Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities.”1 OCR reinterpreted the definition of “sex” for the purpose of sex discrimination to implicitly include the gender expressed by an individual under Title IX of the Education Amendments of 1972.

Read All About It! Fall, 2016
In this installment of the Attorney’s Corner, we review a decision from the Second Circuit Court of Appeals, two federal district court decisions, one decision from the Office of State Review, and an advisory opinion by OSEP.

Willingly or Not, Many Districts Heed Transgender Guidance
"Timothy Mahoney was interviewed by Special Education Connections on the topic of transgender students and gender expression in public schools."

Months in Review: May 2016, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review two decisions of the Second Circuit Court of Appeals, and two decisions from the Federal District Court in the Southern District of New York. Each of these decisions explores the importance of fully documenting the information contained in a student's IEP, including all sources of information – whether from an evaluation, report, or participant – and why it is critical to follow the meeting with well-written prior written notice letters...

Permissible Drug Use: The Administration of Medication in the School Setting
By Laura Ferrugiari and Tim Mahoney
We are pleased to announce that an article written by Laura Ferrugiari and Tim Mahoney has been featured in the Nassau County Bar Association's monthly newspaper, The Nassau Lawyer. The article, entitled "Permissible Drug Use: The Administration of Medication in the School Setting," reviews the administration of medication in emergency circumstances in school, and advises districts about who is authorized to administer emergency medication and under what circumstances.

Months in Review: March 2016, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
We are pleased to present our next installment to the Attorney's Corner: "The Month in Review" (March, 2016). In this installment of the Attorney's Corner, we review two decisions of the Second Circuit Court of Appeals, a decision from the Federal District Court in the Southern District of New York, one appeal from the Office of State Review ("SRO"), and an Opinion Letter from the United States Department of Education, Office of Education and Special Services ("OSEP")...

Months in Review: February 2016, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
We are pleased to present our next installment to the Attorney's Corner: "The Month in Review" (February, 2016). In this installment of the Attorney's Corner, Jack Feldman and Timothy Mahoney review 1 Second Circuit Court of Appeals decision, 4 Federal District Court decisions and 1 SRO decision. The major focus of this publication revolves around a series of decisions regarding retrospective testimony and a school district's burden of proving it provided FAPE at...

Months in Review: January 2016, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review a series of decisions dealing with bullying from the Second Circuit Court of Appeals to a federal district court in New York to a New York State court, to the SRO. In addition, we discuss a decision of the federal district court addressing how graduation with a Regents diploma ends a student's entitlement to IDEA services, and a decision by the SRO exploring a district's responsibilities when a parent refuses...

Months in Review: November - December 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review two district court decisions and several Office of State Review ("SRO") decisions. In one decision, the district court issued an interim order describing the standard by which additional evidence not reviewed during the impartial hearing may be considered. We also review a case in which, after the district court judge upheld the appropriateness of a district's...

Months in Review: September 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review several District Court decisions. One decision found that the School District did not offer a free appropriate public education ("FAPE") when it did not consider the Parents' concerns regarding the student's placement after the Committee on Special Education ("CSE") made its recommendation. The Court determined that this prevented the Parents from being able to meaningfully participate in the CSE process. Another case modified the amount of...

Months in Review: August 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of Read All About It, we review several District Court decisions. One decision ordered a public school district to provide compensatory education services, including credit-bearing instruction, past the student's 21st birthday. Another decision held that a Committee on Special Education ("CSE") appropriately considered the Parents' input, even though it did not grant their requests when developing the student's individualized education program ("IEP"). We review another speculation...

Months in Review: July 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review an important Second Circuit decision holding that a Parent cannot speculate that a District will not appropriately implement an otherwise adequate individualized education program ("IEP"). We review a similar District Court decision where a Parent did not prevail on a speculation case even after testifying that the school principal stated that the proposed placement would not be appropriate for the student. Another District Court case held that...

Months in Review: June 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review an important Second Circuit decision indicating that public school districts must develop individualized education programs ("IEPs") for students who are parentally placed at private schools regardless of where they are located. Failing to offer a free appropriate public education ("FAPE") IEP as though the student...

Months in Review: May 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review a Second Circuit decision which found that a District risks denying a free appropriate public education ("FAPE"), when it adopts a private school's Individualized Education Program ("IEP") goals without also using the private school's teaching methodology to implement those goals. We also examine several District Court decisions. The Southern District Court found that school districts cannot be compelled to contract directly with private schools...

Months in Review: April 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review a Second Circuit decision that found a District provided FAPE by adding a 1:1 aide to a student's IEP in response to Parental concerns regarding a high student-to-staff ratio. We review several District Court decisions that examined whether a Parent was entitled to tuition reimbursement for a unilateral private school placement due to a FAPE denial. In one decision, the Parent did not prevail when she relied on retrospective testimony and...

Months in Review: March 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review six federal district court decisions and two SRO decisions. A number of these federal district court decisions examine whether a school district provided a free and appropriate public education ("FAPE") to students who were unilaterally placed by their parents in nonpublic schools. One decision found that an individualized education program ("IEP") that did not comply with state regulations did not result in a FAPE denial when considering...

Second Circuit Upholds New York's Mandatory Vaccination Requirement
Nassau Lawyer April 2015 Edition
In this installment of Nassau Lawyer on page 5 is Brendan B. Barne's article: Second Circuit Upholds New York's Mandatory Vaccination Requirement

Months in Review: January 2015, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of the Attorney's Corner, we review a decision from the Second Circuit that favors deference to the decisions of the SRO rather than district courts when both the SRO and district court review the same record. This is based on the SRO's educational expertise. In a Federal District Court decision it was found that the short-term objectives for a student who was alternately assessed should be considered in determining whether IEP goals are measurable... Months in Review: November - December 2014, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of Read All About It, we review a decision from the Second Circuit that affirms the propositions stating that a CSE is not required to conduct updated evaluations or identify a Parent's preference for teaching methodology on a student's IEP. Rather, as long as evaluations fall within the three year reevaluation period and absent a specific request for updated evaluations from Parents or District staff, CSEs may use available information to develop a student's IEP...

Executive Sessions and the Open Meetings Law
We are pleased to attach for your review an article prepared by Laura A. Ferrugiari and Joseph Lilly, which recently appeared in the November 2014 edition of the Nassau Lawyer the Nassau County Bar Association monthly newsletter. The article entitled "Executive Sessions and the Open Meetings Law," addresses closed-door school board meetings and compliance with the Open Meetings Law when it is appropriate for Board of Education to adjourn to executive session, and how to do so.

Months in Review: August 2014, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of Attorney's Corner, we review decisions from the Second Circuit Court of Appeals and federal courts. Both the Second Circuit and Southern District of New York held that deference will be given to the opinions of state education authorities regarding the use of particular educational methodologies for students. The specific type of methodology to be...

Months in Review: June - July 2014, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of Attorney's Corner, we review decisions from the Second Circuit Court of Appeals and federal courts. The Second Circuit has clarified that claims that a District delays the provision of related services to all IDEA-eligible students until after the start of the school year, despite IEP mandates, as a general policy or practice, are not subject to IDEA's...

Latest Legal Publication 6/11/14
Enclosed please find a copy of the latest article published by Frazer & Feldman, LLP, associate Christie R. Jacobson, Esq. The article is entitled, "Solutions to Five Common Problems Involving Unpaid Leaves of Absence." It is featured in the June 9, 2014 Edition of On Board, which is the statewide newspaper published by the New York State School Boards Association ("NYSSBA"). The enclosed new article provides recommended solutions to five common problems regarding unpaid leaves of absence in order to help school districts avoid the most common – and costly – errors.
Download Solutions to Five Common Problems Involving Unpaid Leaves of Absence

Months in Review: April - May 2014, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of Attorney's Corner, we review several federal district court and SRO decisions. One federal district court reminded CSEs that diagnoses do not drive IEPs. Rather, the way the student's disability presents in school academically and behaviorally drives the IEP, including the annual goals that are developed to address the student's special education needs...

Months in Review: March - April 2014, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of Attorney's Corner, Frazer & Feldman, LLP reviews two decisions from the Second Circuit Court of Appeals and four federal district court decisions. The Second Circuit has instructed that IDEA's LRE mandate applies to extended school year ("ESY") programs in the same manner in which it applies to placement recommendations for the 10-month school year.

Months in Review: February 2014, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In the February, 2014 installment of Attorney's Corner, we review, among other decisions, one U.S. Supreme Court case which preserved a Circuit Court's decision that dis-enrolling a student with a disability, despite the student being excessively absent from school, may violate IDEA's stay-put provision.

Months in Review: January 2014, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this installment of Attorney's Corner, we are reminded that a school's history of difficulties and failures in providing IEP-mandated services does not automatically render a CSE's recommendation of that school inappropriate. "Failure to Implement" claims can only be raised after the district's duty to implement the IEP has been triggered, and the district has failed. Raising such claims prior to such time will be premature and result in the dismissal of the parents' claims.

Months in Review: November - December 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
As you approach annual review season, this issue of Attorney's Corner may prove to be particularly useful. With the increased number of IEPs to review at the end of the school year, many of you may be finding it difficult to hold annual reviews in May and June. One District held an annual review meeting in January, and despite the parents' challenges to the timing, the Federal Court concluded that based on the circumstances, there was no error in convening the annual review five months prior to the end of the school year. IDEA has only two timing requirements - (1) that all IEPs be reviewed at least annually, and (2) that CSEs have IEPs in effect for all children prior to the start of the school year.

Months in Review: October 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this month's issue of Attorney's Corner, we learn that Districts may draw criticism from the New York State Education Department if they use the Resolution Process as a subterfuge to avoid New York State's policy on the ability of districts to place students with disabilities in SED-approved schools. One district was found to have violated this policy by engaging in a practice of agreeing, at the Resolution Session, to place students with disabilities in bilingual Yeshivas - something that the CSE was otherwise precluded from doing.

Months in Review: September 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this month's issue of Read All About It, we review cases concerning various special education-related issues. In particular, we review a Case of Interest from the New York Appellate Division for the Second Department, which reassures Districts that they have no duty to supervise students placed by the CSE out-of-district. In Begley v. City of New York, 2013 WL 5225242 (2d Dep't., 2013), the Parents of a student who suffered from asthma, as well as severe allergies to a wide range of foods and substances, sued the School District following the student's death at a New Jersey private school, where the student was placed by the District's CSE. The student died after an apparent exposure to blueberries. In denying the Parents' claim that the District was liable based on a claim of negligence, the Court held that the district had no duty to supervise the staff at the out-of-district placement.

Months in Review: July - August 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
The Second Circuit has reiterated that the introduction of retrospective testimony to attempt to cure a defective IEP is prohibited. However, the Court explained that, before considering whether retrospective testimony was relied upon to cure a defective IEP, it will first review whether the absence of the service, accommodation, modification or support (collectively referred to as "service") from the IEP resulted in a denial of FAPE. If not, the reliance on retrospective testimony that the service would have actually been provided will likely be deemed to be of no consequence.

Months in Review: June 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
On June 10, 2013, the U.S. Supreme Court declined to review the Second Circuit Court of Appeals' decision in R.E. et al v. New York City Department of Education, 694 F.3d 167 (2d Cir., 2012). As a result, the Supreme Court has preserved the "Retrospective Testimony" holding. No longer may school districts present testimony during the impartial hearing regarding "programmatic services" that are not included in the student's IEP. If the services are not enumerated in the IEP, the District cannot prove they would have been provided if the parents had sent their child to the District. All school districts within the jurisdiction of the Second Circuit must now be meticulous when including all programmatic special education services (i.e. services provided only to special education students, not those provided to all students) in each special education student's IEP.

Months in Review: April - May 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
The Second Circuit has made it clear that although R.E. v. NYC Dept. Of Educ., 694 F.3d 167 (2d Cir., 2012) was decided in late 2012, the principals regarding retrospective testimony will be applied retroactively to administrative decisions decided prior to R.E. The impact of R.E. is such that it is important for CSEs to remain diligent about documenting in their IEPs all of the special education services that will be provided to the student. The concept of "programmatic special education services" should not be relied upon. IEPs should describe the actual program and services a child is scheduled to receive.

Months in Review: March - April 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
This month, we learn that microwaving a student's lunch although a preferred rather than medically necessary accommodation, is not reasonable; it is within the scope of the responsibilities of a 1:1 classroom aide or paraprofessional working under the supervision of a certified teacher to record discrete trial data, that $1,800 is a reasonable cap for IEEs; and that the Second Circuit Ruling in R.E. regarding Retrospective Testimony applies to the substance of IEPs as well as to the District's implementation of the IEP.

Months in Review: February 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
This month, we review several cases concerning procedural deficiencies in the development of IEPs that did not rise to the level of a denial of FAPE. Specifically, one federal court reiterated the principle that an omission of parent counseling and training ("PC&T") from the IEP by itself, does not rise to the level of a denial of FAPE. In that case, the court found that the omission of PC&T, coupled with the district's failure to conduct an FBA or develop a BIP, despite the parent's indication that the student had behavioral needs, did not rise to the level of a FAPE denial.

Months in Review: January 2013, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
This month, we review federal district court cases, which contemplate procedural and substantive missteps in the IEP development process. Specifically, as a result of a cursory district-conducted classroom observation of a student in his parental placement, one district was ordered to pay the parents $125,000 in tuition reimbursement. The court reasoned that the district erred when it relied solely on an insufficient, 75 minute, classroom observation in making its 6:1:1 placement recommendation, and ignored clear evidence from the private school that the student could only learn in a 1:1 placement. The main lesson in this case is that when a student is parentally placed, it is safe to assume that the parents will seek tuition reimbursement. Therefore, districts must be especially meticulous when gathering information about the student's current functioning, so that the CSE can develop an accurate and reliable IEP, which makes a well-reasoned and appropriate placement recommendation.

Months in Review: December 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
In this issue of Read All About It, we review several decisions, which contemplate issues ranging from IDEA's LRE requirement to the well-settled legal principle that a parent's speculation that the district will be unable to meet the student's IEP requirements will not warrant a finding that the district denied FAPE. Specifically, one federal court determined that in light of the student's failure to actually participate in the proposed program, speculation that the district would have been unable to satisfy the student's IEP-mandates did not warrant a finding that the district denied FAPE. Another decision from the same court, concluded that based upon the unique facts of the case and clear evidence that the district would have been unable to meet the student's IEP mandates had the student actually participated in the proposed program, the parent's speculation was founded, and thus, determined that the district denied FAPE.

Months in Review: November 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner
This month we review several cases regarding issues that special education administrators and CSE chairpersons will encounter in their everyday roles. A landmark federal district court decision will modify how districts treat special education students who have been parentally placed in private schools in DOLs. Specifically, the federal court has proclaimed that the issue of whether the parent has made clear his or her intention to place the student in the DOL is not relevant to the question of whether the DOR owes a FAPE obligation to the parentally placed student. Rather, this issue is only relevant to whether the equitable considerations warrant a reduction in all or some of the costs of the child's private education. Thus, the Southern District has held that, regardless of the parents' intention to unilaterally place a student in the DOL, the DOR continues to owe FAPE obligations to the student. This is the case even where the DOL has developed an IESP.

Months in Review: October 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Months in Review: August - September 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Months in Review: June - July 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Months in Review: May - June 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Months in Review: April - May 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Months in Review: March - April 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Months in Review: January - February 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Months in Review: December 2011 - January 2012, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman and Eboné Woods
NYSE Directors Attorney's Corner

Months in Review: November - December 2011, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman and Eboné Woods
NYSE Directors Attorney's Corner

Months in Review: September - October 2011, Read All About It!
A Synopsis of Salient Cases in Special Education
By Jack Feldman and Eboné Woods
NYSE Directors Attorney's Corner

Months in Review: August 2011, Read All About It!, October 17, 2011
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Months in Review: July/August 2011, Read All About It!, September 15, 2011
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Month in Review: June 2011, Read All About It!, August 2, 2011
A Synopsis of Salient Cases in Special Education
By Jack Feldman
NYSE Directors Attorney's Corner

Parents Lose Bid to Enroll Unimmunized Daughter, July 27, 2011
New York Law Journal

Workers' Compensation: Controlling Costs and Employer Obligations, January 2010
By Christie Jacobson
Nassau Lawyer

Family Law May Clarify Education Law When Enrolling a Child in Public School, February 2009
By Christie Jacobson
Nassau Lawyer

For further information on earlier updates, or if you have questions about any of the above items, please email info@ffedlaw.com.

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