The State Education Department Releases a ‘Blueprint for Improved Results for Students With Disabilities’

Posted in Uncategorized

Blueprint for successLast week, the New York State Education Department announced that it has developed a “blueprint” for local school districts to develop effective special education programs for students with disabilities. SED stated that the blueprint is intended to “ensure that students with disabilities have the opportunities to benefit from high quality instruction, to reach the same standards as all students, and to leave school prepared to successfully transition to post-school learning, living, and employment.”

SED developed seven core principles for the blueprint, and encouraged local school districts to review these principles and assure that its procedures are consistent with them. The seven core principles are:

  1. Students engage in self-advocacy and are involved in determining their own educational goals and plan.
  2. Parents and other family members are engaged as meaningful partners in the special education process and the education of the child.
  3. Teachers design, provide, and assess the effectiveness of specially designed instruction to provide students with disabilities with access to participate and progress in the general education curriculum.
  4. Teachers provide research-based instructional teaching and learning strategies and supports for students with disabilities.
  5. Schools provide multi-tiered systems of behavioral and academic support.
  6. Schools provide high quality inclusive programs and activities.
  7. Schools provide appropriate instruction for students with disabilities in career development and opportunities to participate in work-based learning.

A copy of the “blueprint,” with further explanation of these core principles, may be found here.

OSEP Issues Guidance Requiring IEPs to Be Aligned With Grade-Level Content Standards

Posted in Student Issues

Teacher in classroomEver since New York State adopted the common core standards, there has been questions about how these standards would apply to students with disabilities. The response to these questions has been fairly consistent—disabled students are expected to meet the same standards as their nondisabled peers. This was the answer that the U.S. Department of Education gave earlier this year to New York State when they sought permission to test disabled students based on their developmental level rather than their chronological age. There also has been extensive discussion about schools using “standards-based goals” on student IEPs that align with the common core.

On November 16, 2015, the Offices of Special Education Programs (OSEP) and Special Education Rehabilitative Services (OSERS) further memorialized this expectation. Continue Reading

EEOC Issues New Guidance Concerning Pregnancy Discrimination and Accommodations

Posted in Personnel

Pregnant employeeOn June 25, 2015, the U.S. Equal Employment Opportunity Commission issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (the Guidance). As stated on the EEOC’s website, the Guidance supersedes the EEOC’s earlier guidance on the Pregnancy Discrimination Act (PDA), which had been issued in 2014. The Guidance was also issued, in part, in response to the Supreme Court’s decision in Young v. United Parcel Service., Inc.

The Guidance reflects the Supreme Court’s conclusion in Young that women may be able to prove unlawful pregnancy discrimination if the employer accommodated some workers but refused to accommodate pregnant women. In Young, the Supreme Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the PDA if the policy imposes “significant burdens” upon pregnant employees “without sufficiently strong justification.” Continue Reading

Teacher Discipline Pursuant to §3020-a of the New York State Education Law: Significant Changes

Posted in Personnel

Scales of justiceSeveral years ago, there were changes made to §3020-a intended to streamline the process of disciplining a tenured teacher/administrator. Effective July 1, 2015, even more significant changes have been made to the statute based on the enactment of a new state budget. The changes also create §3020-b, which establishes procedures related to termination based on ineffective APPR ratings. Many of these changes will be advantageous for school districts.

The amended law eliminates the ability of a tenured teacher or administrator to opt for a three hearing officer panel in cases related to pedagogical concerns. All cases will be heard by a single hearing officer. This will make it easier for districts to move cases along without struggling with the calendars of both parties, their witnesses, and three hearing officers. Continue Reading

OSEP Issues Letter Expanding Parents’ Right to an IEE

Posted in Student Issues

child evaluationOne of the most significant safeguards that parents of students with disabilities have under the Individuals with Disabilities Education Act (IDEA) is the right to an independent educational evaluation (IEE). In essence, this allows parents to obtain a second opinion regarding a school district evaluation that they do not agree with or feel is inaccurate.

The parents’ right to an IEE is not unfettered. A school district can impose limitations on the cost and geographical distance of an IEE. Until now, the school district could also refuse an IEE request in a suspected area of disability, if the school district had not first evaluated the student in the same area of disability. This right was important, since it assured that school districts at least have the chance to evaluate a student in house before assenting to (and paying for) a private, outside evaluation.

This restriction, however, has been recently challenged by the U. S. Department of Education, Office of Special Education Programs (OSEP). Continue Reading

HIPAA Breach Affects Many Western New York School Districts

Posted in Personnel

Computer HackerRecently, a national BlueCross BlueShield affiliate, Anthem, Inc., discovered that its information technology systems was hacked. The information believed to have been accessed includes names, member ID numbers, dates of birth, addresses, social security numbers, e-mail addresses, telephone numbers, and employment information, including income data. Many local school districts’ group health plans were affected by this breach because it not only affected group health plans directly insured or administered through Anthem, but also plans that utilize the BlueCross BlueShield “BlueCard” program.

If a school district’s health plan has been notified by BlueCross BlueShield or Anthem that their participants’ information was disclosed, the district must take immediate action to comply with the HIPAA breach notification requirements. This includes notifying affected individuals, the Department of Health and Human Services, and, in some cases, local media. In addition to the federal HIPAA notice requirements, if the disclosed information includes an individual’s social security number, the school district must also notify three state agencies as required under the New York State Technology Law. Failure to comply with these notice requirements in a timely manner could subject a school district to significant penalties. Once the notice requirements have been fulfilled, districts should review and update their HIPAA compliance documents (e.g., HIPAA Privacy & Security Policies, Business Associate Agreements, HIPAA Notice of Privacy Practices, training log, etc.) in preparation for a potential audit.

OCR Issues Guidance Regarding Immunization Requirements for Students With Disabilities

Posted in Student Issues

Immunization historyThe U.S. Department of Education Office of Civil Rights (OCR) recently issued guidance regarding how schools should address situations where a student with a disability is unvaccinated. This guidance recognizes that there are certain medical conditions where a disabled student should not get vaccinated, such as HIV/AIDS, Leukemia, or certain types of cancers. OCR states that in these instances, it may be appropriate to exempt the disabled student from the immunization requirements based on medical reasons. However, OCR states, school districts “must make reasonable modifications to policies, practices, or procedures that otherwise require vaccinations, in order for these students to attend school.”

By making the above comments, OCR is reminding schools that they must take into consideration whether a child is unvaccinated due to disability or medical reasons and not prevent the student from attending school as a result. Continue Reading

Governor Cuomo Vetoes His Own Common Core Bill

Posted in Personnel

Thumbs downOn Monday night, December 29, 2014, Governor Cuomo vetoed a bill that promised to protect “New York’s standing as a national leader in teacher evaluation.” Specifically, the legislation would have created a two-year safety net that excluded Common Core state tests from teachers’ and principals’ annual professional performance reviews if the teacher or principal was rated developing or ineffective. A teacher or principal who is still ineffective or developing based on the non-state factors would still face all of the consequences under the current law, including an expedited hearing process for termination of teachers who are rated ineffective for two years in a row.

This veto is particularly interesting given that the governor’s own administration drafted and negotiated the bill in response to lobbying efforts from the New York State teachers’ union. The union supported the bill and claimed that it “ensure[d] that teachers are treated fairly.”

The governor referenced the teacher evaluation results released by the State Education Department as his basis for vetoing the legislation. Cuomo wrote in his veto message that “the 2013-2014 teacher evaluation results…are not an accurate assessment—only 0.7% of teachers were rated ‘ineffective’ under the APPR, and so the legislation is unnecessary.” He went on to state:

The temporary provisions do not fix the foundational issues with the teacher evaluation system. Given what we know now, it would make no sense to sign this bill and further inflate these already inflated ratings. Instead, it is critical that we make systemic improvements to the evaluation system so that it acts as a rigorous, accurate, and reliable measure that will allow districts and schools to meaningfully differentiate between educators.”

NYSUT released a statement opposing the governor for vetoing the bill. Cuomo promised that he will propose “comprehensive reforms” to the current APPR system in the next year. Stay tuned in the upcoming year for further developments to New York’s teacher evaluation system and Governor Cuomo’s proposed reforms to the system.


Melanie Beardsley is an associate in the Education Practice at Hodgson Russ LLP. You can reach her at

Department of Education Issues Guidance on Sufficient Communication Modalities

Posted in Student Issues

Kids in a ClassroomOn November 12, 2014, the U.S. Department of Education’s Office for Civil Rights (OCR), the Office of Special Education and Rehabilitative Services (OSERS), and the U.S. Department of Justice distributed a joint Dear Colleague Letter (DCL) regarding schools’ responsibilities to ensure that students with hearing, vision, or speech impairments have sufficient communication modalities. This guidance focused on the interplay between two relevant federal laws: the Individuals with Disabilities Education Act (IDEA) and Title II of the Americans with Disabilities Act.

The DCL notes that while many of the obligations between the IDEA and Title II overlap, compliance with one law does not necessarily mean compliance with the other. Title II requires school districts to take appropriate steps to ensure that communication with students with disabilities is as effective as communication with students without disabilities. School districts must provide appropriate auxiliary aids and services so students with disabilities have an “equal opportunity” to participate in the schools’ services, programs, and activities. Notably, under Title II, schools are required to give “primary consideration” to any accommodation, aid, or service that is requested by the parent and/or student with a disability. Continue Reading