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(LISTEN) The Curious Incident Podcast: Episode 7: Simplifying The Legal Process
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About this episode:
New York City Special Education Attorney Adam Dayan speaks with Amled Pérez, Senior Associate Attorney at the Law Offices of Adam Dayan, about the special education legal process. They discuss
what a special education lawyer does
how special education legal matters are resolved through the impartial hearing process
the importance of proper documentation
tips for achieving a successful outcome
managing your expectations if you are a parent who is new to this legal process
Their conversation is a rare opportunity for special needs parents to understand the nuances of the legal process in a simplified fashion.
Since joining our firm in 2018, Amled has represented parents at impartial hearings and in settlement negotiations with the Department of Education, and has created lasting connections with parents.
If you have questions about special needs children and their education that were not covered in the podcast or need guidance about how you should move forward, please contact the Law Office of Adam Dayan, PLLC at 646-866-7157 to discuss your particular circumstances.
About the Law Offices of Adam Dayan, PLLC
Adam Dayan Esq. is a New York special needs attorney. Established in 2009, the Law Offices of Adam Dayan, PLLC has the primary purpose of making sure children with special needs receive a quality education and long-term financial security.
Transcript - Episode 7: Simplifying The Legal Process
Speaker 1:
This is Curious Incident, a podcast for special needs families and your window into the world of special education. Parenting can be challenging and we want to make it easier by providing you with the resources you need to best help your child. Let's delve deep into the world of special education with your host, Adam Dayan.
Adam Dayan:
It's a privilege to be able to welcome my senior associate attorney, Amled Perez, to this podcast. Amled has worked our firm for the last four years. During that time, Amled has achieved outstanding results while delivering the exceptional client service that our firm is known for and creating lasting connections with parents. Prior to joining our firm, Amled's legal experience ranged from representing clients in family law matters to conducting depositions in employment discrimination federal litigation. Amled has a Bachelor of business administration degree from the University of Puerto Rico, a Master's in law degree from Tulane University Law School, and a Juris Doctor from the University of Puerto Rico.
Adam Dayan:
Amled, it's great to be with you here today.
Amled Perez:
Thank you. Happy to be here too.
Adam Dayan:
Excellent. So let's get started. You've worked at our firm for four years now. Tell our listeners what made you become a special education lawyer in the first place.
Amled Perez:
Well, it was right after Hurricane Maria. Everybody reconsidered everything after that. I was working in an area of law that I found it interesting, but it wasn't fulfilling. I think most people that go to law school, they think they're going to have a cause, that they're going to be fighting for something. And what I was doing, I was like, "I'll go home and it means nothing to me." So when I found this opportunity, I thought, "This is great. This is something that I could love." I didn't know at the time what exactly I was doing. I know how to practice law. I didn't know the details. But I love children and I thought this would've been a great opportunity, and it has been.
Adam Dayan:
That's wonderful. Tell our listeners a little bit about you. What makes your approach or outlook unique given your particular background, skills, and experiences?
Amled Perez:
Well, my parents, they own a pharmacy. So it was open 365 days a year. So it didn't matter if it was Christmas, you open gifts and then you're going to the pharmacy to work. There's a hurricane, it's flooded, you're going to the pharmacy to give people their medicine.
Adam Dayan:
This is back in Puerto Rico, right?
Amled Perez:
Yes. So I've been used to seeing people on their worst or really, really bad days. So I always thought... And as a cashier, not a pharmacist or anything of real importance. So I was the person just charging you for whatever you were buying, but it was always good to ask you like, "Hey, how are you doing? How are the kids?" Or anything like that. Note, I was like 16, 15 and I'm asking about the children too. But I'm used to seeing people at the worst or when they most need help. And I think, in this area, we usually get people that are starved for information. They're desperate. They're overwhelmed. They're just tired of trying to find responses on their own, even when I-
Adam Dayan:
In the area of special education, what you mean?
Amled Perez:
Yes, yes. So if I tried to Google something like what we do, you're going to get 100 responses in many ads, but you're not really going to know what to do next. So I think being used to dealing with people in those situations, not just being used to it, but enjoying being able to help and give you some relief to that. It's not medicine, but the next best thing that I can provide. I think that helps. And well, also, my mom also knew that I was going to be an attorney my entire life because she-
Adam Dayan:
Yeah?
Amled Perez:
Yes. She was like, "You fight over everything." If she told me I couldn't go somewhere, I was like, "Okay, give me three reasons why I can't go to this thing." I will do whatever I need to do to get the result that I need.
Adam Dayan:
Great. So you mentioned before that you can Google special education law or special education lawyer and get a million different things. Many people don't know what a special education lawyer does. So can you simplify it for our listeners? What does a special education lawyer do?
Amled Perez:
I simplify things.
Adam Dayan:
Great, let's have it.
Amled Perez:
Parents come to us. Many times, they just have that intuition. They don't have a diagnosis. They don't know what's going on. Sometimes you have a teacher telling you that something's wrong or they're just telling you, "I don't know how to deal with this. Your child is a problem." They're not telling you your child has dyslexia, your child has this. They don't know how to determine that. So, in many instances, it's good to come in with a new set of eyes for the parents and to be able to guide them in the direction of an evaluator.
Amled Perez:
I'm no doctor. I cannot diagnose. I can tell you what a good person that I think could tell you what you can do next. So besides diagnosing the child, I also tell you what the next steps could be. If you are interested in keeping your child in the public education system, we can work with parents to give them the proper notices to send to the department to try to use the correct words because, in many instances, the department will use any excuse not to give your child what they need. So you're sometimes just out there trying to do the right thing for your child, but you're not using the right words. I come in, I give you the vocabulary to use and to communicate what it is that you need.
Amled Perez:
So, yes, simplifying what the steps are, evaluating the child, pointing you in the right direction. And sometimes you do have a diagnosis, sometimes you do know what you want, but you don't know how to get it or you're just determining, "My child needs this type of therapy, but I cannot pay for it." So how do I go about it to ask the department for this type of service? Can they fund it? Is this even in the realm of possibility? So we just try to guide you through the mains that the DOE creates for parents.
Adam Dayan:
Yeah, I think those are really important points, directing them to resources that they can utilize to figure out what's going on with their children, identifying school options, what might be appropriate for their child, and figuring out how to get what they want, the strategy of how to go about it. Correct?
Amled Perez:
Yep. Yep.
Adam Dayan:
Great. Once parents have taken this step of reaching out to a special education lawyer, what can they expect in terms of next steps in this legal process?
Amled Perez:
I take a look at all the documents. Sometimes there are no documents. This is the first time that you're noticing anything with your child and this is literally your first step. Meanwhile, there are other parents that come in and they've been fighting the department on their own for years. So, in this case, I review... In this case, I mean every day at work, I review documents. I let you know whether there's anything missing.
Amled Perez:
When you look at documents, sometimes you have an evaluation and you think, "Well I have a psychoeducational evaluation from the department," but what did you learn from it? Did you find out anything about your kid once you saw this document? Did they give you any recommendations? Did they give you a path for you to follow? The answer is usually no. They're maybe two, three pages long. It just summarizes what you told the department that your child was doing at home or in the classroom, but they don't really take the time to take a deep dive and find out what's wrong with your child. They don't have the time, probably not the resources, or if they do, they decide not to use them for your kid.
Adam Dayan:
Nor do they include programmatic recommendations about what would be appropriate, right?
Amled Perez:
Correct. So reviewing documents is a major part of my to-do list whenever I get a new parent coming in, guiding you about what is it that you want and that your child needs because sometimes there are not enough hours in the day. Your kid may need a whole variety of services. I think just this week, I asked the parent what she needed for her kid and it was, both applied behavior analysis and speech and language, and a classroom setting. And she said, "I need 20 hours of this one, 15 hours of that one, and a placement." So I said, "When would the kid sleep?" Your kid may need it. You may think that they need it. You may get separate evaluators telling you, "Well, for ABA, they need this amount for speech. They need that amount." But when you add it all up, we need to all work together and collaborate to make sure that this kid sleeps, they get enough time for transport from one place to the other, and that they have a kid's life too.
Amled Perez:
So it is sometimes looking at a lot of documents and making them merge into one thing that makes sense for you. Do you want to have your kid go to grandma's house for the weekend, or do you want them to go to speech for five hours? So it is your choice. Your kid may need it, but you make the final decision about what's appropriate and what you think they need.
Adam Dayan:
Absolutely. Makes sense. Putting it together into a coherent hole, right?
Amled Perez:
Yes. So after I review documents for the parents and guide you in determining what it is that you want, what the next steps should be, you are put in contact with the department. So we determine, based on your place of residence, what your district is, who you should be contacting. If you moved, we need to figure out where this letter is going, et cetera. So we draft letters to put the department on notice about where your child's needs are.
Amled Perez:
In the end, this is their responsibility and they should know, and it may be very ambitious of the federal statue, but it does say that the New York Department of Education needs to know about every single child under the age of 21. No matter if they're in a shelter, no matter where they are, the department needs to know what their needs are. They need to keep track of your kid. It doesn't matter if they're in a private school. It doesn't matter if they're in a charter school. They just have to.
Amled Perez:
So in these cases, we're doing the department a favor. You're going a step further and saying, "Maybe my child is diagnosed with X, Y, Z," or maybe, "I think my child may be diagnosed with something. Can you please check? Can you assess them? Can you give me funding for a neuropsychological evaluation or
a speech evaluation? Whatever it is."
Amled Perez:
Once we put those notices on the department's radar, which they call "a referral letter", you have put them on the department to-do list. If they do nothing, then we go ahead with the case. After drafting letters asking the department to do things, you're asking them to evaluate. You're asking them to give you an IEP. After drafting letters and putting the department on notice about what your child is going through, not even diagnosis-wise, we try to give the department as much information as possible as we have within the realm of possibility.
Amled Perez:
After that, once you've determined that your child needs a placement or needs specific services, we file what it's called a 10-day notice, or a TDN. That is filed, as the name implies, 10 business days before the start of the school year. The TDN basically tells the department, "This is my child. You have done or haven't done X, Y, Z." For instance, X, Y, Z can be you convened an IEP meeting but what you did was incorrect. The proper people were not part of it. There are some cases where the student has very intense physical therapy needs and they just brought a teacher and a district representative that's maybe a psychologist and that is not the area of need for the child.
Amled Perez:
So in these cases, we bring up what was wrong during the process. There are certain things that the DOE has to do. If they didn't do them, you point them out, and this notice gives the department 10 business days before the start of the school year to fix it. That's the ideal. Does it happen often, that within those 10 business days they do fix something, they give you a proper IEP, they give you an appropriate placement? Usually, no. In some cases, it may happen. They may call you. They may reach out and say, "Okay, let's redo this. Let's figure out how to fix it and create an appropriate program and give you an appropriate placement for your child before July 1st or before September 1st."
Amled Perez:
Once we do that, if the department has not fixed what we're telling them that is an issue with your child's program, then we file what is called a due process complaint, or a DPC. The DPC basically outlines what the TDN said and they tell the department what we're doing about it. So, for example, they didn't give you a placement that you told them on the TDN that that was an issue. They didn't do anything in those 10 business days. So you file a DPC and you tell them, "Well, I didn't have a place to send my child as of September 1st. So, Today, September 1st, I am filing a complaint and I am sending my child in the meantime until you fix this. I'm sending them to ABC school, for example, and I will need transportation to and from ABC school, and I may need after school services. You just need to list what is it that you're asking the department to do.
Speaker 1: You're listening to Curious Incident, a podcast for special needs families, with your host, Adam Dayan.
Adam Dayan:
I know you gave the example of where the school district hasn't provided an appropriate school placement and the parents have to choose or identify a school placement of their own. What other examples have you seen? Can you give an example of a situation that doesn't involve selecting a new school placement?
Amled Perez:
In some instances, we've had students that have seizure disorders and they need a one-on-one Hillsborough professional in the classroom with them at all times. This person basically walks your child to and from the bathroom, lunch, recess. They go with them down the stairs just in case there's a seizure and obviously that you cannot predict. I've also had cases where the child just needs somebody to redirect them within their mainstream classroom. They may get distracted. They may get a little rowdy. Their needs may change greatly. They vary greatly.
Amled Perez:
I think one interesting case was with executive functioning delays, where the student may have just superb cognitive abilities, they may be super intelligent and nothing is going to pop up for the department. They're not going to say there's an issue with this child because the kid can get all As and Bs and that just flies on their radar. But when you leave this child to do assignments on their own, they don't complete them. They don't start them. So these are needs that sometimes can just go fly by under the radar for many years and then they explode at a certain time.
Amled Perez:
The perfect storm was COVID. So, in many cases, the students were doing fine. Then you put them in their classroom, which is their bedroom with just a computer with no one-on-one support, no distractions, and then they realize, "Wait, I can't do this by myself." So sometimes the services can be provided in the classroom. Sometimes it's just an afterschool support to help you complete projects, to help you organize yourself. It can be any type of thing, classroom accommodations, testing accommodations. The possibilities are endless, just that kids are just completely different from one another.
Adam Dayan:
Right. And I think the point you are making is that it doesn't necessarily have to be a drastic change. Some of these small, significant tweaks can make a really big difference in the student's education, and special ed lawyers can help parents make those tweaks.
Amled Perez:
Yes.
Adam Dayan:
Amled, when is the right time for a parent who's new to this process to contact a special education lawyer?
Amled Perez:
Yesterday. The sooner is better. Maybe you don't end up needing a placement or the services right now, but why would it hurt to have more information right now? So you come to us. You show me what you have. And I tell you, "Well, I don't think your case is there yet. Maybe you haven't looked at more options. Maybe you haven't reached out to the right people." Sometimes parents are reaching out to the wrong context.
Amled Perez:
For example, your kid is turning for and you're still reaching out to the CPSE to the Committee on Special Preschool Education. So you need to know that once your kid turns a certain age, they go from early intervention to CPSE to CSE. And sometimes you continue to talk to the case administrator, or maybe this person left the DOE. So sometimes there are additional steps that you could take before deciding whether you want to sue the department for services. Sometimes there are things that you can put in place to be better prepared, to know your child better, and maybe find actually a DOE placement that is appropriate for them, or services that the DOE would be willing to fund that would be appropriate.
Amled Perez:
So even if you come to us, the case is not like, "Oh, yeah, this is slam dunk. You can get private services or you can get a placement." I can still help you to see what else is there. Has the child been evaluated in all areas of need? So maybe you're just looking at instruction. Maybe it's an occupational therapy issue. Maybe it's a sensory processing issue or some other type of need or delay that you haven't really looked at.
Adam Dayan:
Sure. Amled, what kinds of students have you represented? I mean in terms of ages and diagnoses.
Amled Perez: Ages, we've represented kids from two years old, turning three, which that would fall under the CPSE, the Committee on Special Preschool Education, all the way to 21 years old. Once they turn 21, this is a tricky one because they can be 21 at the start of the school year and then still complete it. It's a tricky thing to explain. As far as diagnosis, it could go from autism, developmental disabilities, executive functioning delays, ADHD, possibilities are endless, and anything in between. Sometimes it's just something that a neuropsychologist could not even point out and we just need to tell the department, "Hey, we can't tell what it is, but this is how it presents in my kid. So you figure out the disability. You figure out what classification you want to give the child in an IEP. I know how it's affecting him or her in the classroom." Adam Dayan: How have you helped them?
Amled Perez: In some cases, we've helped parents find out the area of issue because sometimes you just know my kid is getting into fights at school and it could just be a behavioral issue or there may be a diagnosis where the child doesn't even understand what's going on. Sometimes they say, "Oh, it's just puberty. Maybe in a year it will end." In the meantime, is your child learning? Yes or no? So sometimes it's just keeping an open conversation, keeping the parents' minds open to let's just explore. Let's just not think that this is a kid who's being stubborn and trying to get into fights. There could be something in there that we're not seeing, that we're not detecting.
Adam Dayan:
That's such a common one that comes up, right? They're being stubborn, or they're just bored, or they're not focusing, but the key is to get to the core of the issue.
Amled Perez:
Yeah. I think with executive functioning, that's the biggest one because they say, "He's just being lazy." They give him project and they understand. They acknowledge that they're going to do it. And then I hear from the teacher and she says it wasn't handed in. What am I going to do with this kid? I don't know what you're going to do at home. But as far as the school setting, I know ways where we can support the child. In other cases, parents come in with a pretty good idea of what their kid needs and it's not just like they need my help to figure out what it is.
Amled Perez:
Recently, we've had some parents that come in with very, I'm going to say unusual genetic disorder that the kids have, genetic disorders that I haven't heard of. So this is always a learning experience for me too. And they also educate me. They tell me, "This is how it reflects. This is how this happened. My kid has had X amount of surgeries since before they were two, three years old." So I always get a better sense from talking to the parents more than I would from documents.
Amled Perez:
And then, from there, we go to figure out whether you need to be put in contact with an agency, a therapist. And a therapist, it could be speech and language, occupational therapy, physical therapy, or if your child needs a full time special education setting, which would be a school. If your child needs afterschool services, whatever it is, I can put you in contact with people that we know do a good job at it or that could refer you out. And then, I would also add educational consultants sometimes because no matter how many schools we deal with, there are things that I'm not going to know at a certain point. Your kids' needs may be so specialized, so unique, it's not in my brain area to know a school that it could work. And it could be outside of New York too. So sometimes the placement for you is in Ohio, in Utah, and I am not familiar with those placements. But we could refer you out to an educational consultant or somebody that can and is aware of all these resources outside of New York and New Jersey and can help you out.
Adam Dayan:
And I would just add one thing you've had tremendous success with is helping parents secure reimbursement in those instances where the school district is not doing what it's supposed to do and is not responding to the 10-day notice letters or due process complaints. And those instances where parents have had to put in place their own private school program, or private school services, or after school services, or home services, whatever it may be, getting them reimbursement or funding for those programs and supports. Correct?
Amled Perez:
Yes. The DOE is very limited in what they decide to add in an IEP. But they say, "I just can't add something in an IEP. For example, feeding therapy. It's just a variation of speech and language therapy, but they will not or they refuse, in every case I have handled, to include feeding therapy. And feeding therapy is very specific. It needs to obviously happen at the time when the child is being fed. Sometimes it's training with the family. So, many times, these services need to be provided at home and the DOE refuses. So in these cases, a parent will come to us and say, "Hey, my child needs two sessions per week or three sessions per week. Can the department fund this?" The answer is they can. They will not willingly without litigation.
Amled Perez:
Other examples the executive functioning support, they say this is tutoring. It's not. It's executive functioning services. So the only options that the DOE has out there are either SEIT, S-E-I-T, if your child is younger than five years old. And if your child is from five to 21, they're just going to call it SET. But does this person that provide SETs have an understanding of executive functioning delays? In many instances they don't or they're just going to go with the child is lazy, they don't want to do it and then just move on and kind of disregard your child's needs.
Adam Dayan:
Can you talk about the impartial hearing?
Amled Perez:
It depends on who the players are. So it changes from case to case, but the parent is 100%, it's always a player. It's always important to have the parents' cooperation, participation, and to know that you're fully in. You will testify. If you're a parent, we need to hear from you. You're the person that first met this child, so we need to have your input.
Amled Perez:
If the child is attending a private school, I would have a teacher or a provider, somebody who's familiar and that sees this kid day-to-day and they know how they function, what they need. And specifically, I want them to compare how the child was when they first got to your classroom, your therapy session, how were they at that time, what have you been doing, and how does that compare to where the child is at now.
Amled Perez:
If the child is getting some services, like we were saying, feeding therapy, executive functioning, tutoring, or even CMEPT, Cuevas Medek Exercise Physical Therapy, which is very particular for children with Down syndrome or anything like that, those people are experts to us. They know things that I will never know. I try to understand them the best I can. So we just prepare them to bottle their knowledge into layman's terms so that a hearing officer can understand, can see how this relates to the student, and how the student could not go on and be successful without these services.
Amled Perez:
The other people that testify but are not on our side, it could be the DOE witnesses. DOE witnesses are usually two or three types. You can have an IEP witness, which means that this person was present at the IEP meeting. That's all it means.
Adam Dayan:
Hopefully, right?
Amled Perez:
Yes. I've had several cases recently where they bring an IEP witness who just read the IEP. So I could be an IEP witness for the doe because I read it. They also have a school location witness, is another possibility. This could be a unit coordinator for a public school. It could be a teacher from the public school that the department is recommending for your child. It could be anybody. The person that answers the phone at the public school could go and testify and say, "Yes, I reviewed the IEP and this is appropriate for this child. Or we have the 611 classroom that is recommended in the IEP. We have physical therapist, occupational therapist, and speech therapist. Hence, displacement is appropriate for your kid." Third option for an IEP witness could be an evaluator. I have not seen that many evaluators testifying on behalf of the DOE, but it does happen it. They're not impossible to get.
Adam Dayan:
Amled, you've talked about who appears and what happens, who testifies. Can you talk a little bit more about what other information is presented at an impartial hearing?
Amled Perez:
Yes. We want the hearing officer to get to know your child. So we talk about the needs of the kid. How is it for you as a parent from your perspective? Because you're not in the classroom, you're not facing these tantrums when you're asking them to count. You're just seeing it when you drop them off at school or over the weekend. How does that affect family dynamics? I just want to know everything that you go through as a parent as well.
Amled Perez:
From the point of the school or agency that's working with your child, we want to demonstrate that this school, or agency, or related service provider is doing something that's useful and appropriate for your child. How do we present that? With progress reports. Sometimes they draft goals before they even start seeing your child. They do a brief evaluation. They say, "Well, this is what the kid cannot do. This is what I think are reasonable, and ambitious, and good goals to address in six months. And then we will regroup and see what we actually did at the end of the six months." So we want to see session notes. We want to see how was the parent involved in these sessions. Did you give the parent anything to do at home?
Amled Perez:
With providers, I would say it's a little harder to pull that information. They know about it, but they're not great with paperwork, most of the ones we've dealt with.
Amled Perez:
For parent seeking reimbursement for services or tuition, we present proof of payment. So it's important to tell the department, not only this is the frequency of services that I need and this is the cost and the provider charges X rate, but I've also paid out of pocket and I need it back. So if you paid in cash, if you paid with a credit card, everything needs to be on paper, shown to the department. So it's either an affidavit or your bank statements. However you paid this person, we need proof of it.
Amled Perez:
If the parent is seeking direct payment, then we may need tax returns, which is a touchy subject for a lot of parents. They're like, "Why do you need this? What if I didn't file tax returns?" But it is important that when you are not paying the provider and you're asking the department to directly pay on your behalf, that you show that there is a need. "I make $5,000 a year and the provider charges 10, Can I pay for this provider directly? No. So I'm asking the department to pay the provider on my behalf." So I need to show with some documentation or some testimony that you are unable to pay this directly and this is why the DOE needs to do it on your behalf.
Adam Dayan:
And I think that's an important point to emphasize because parents have the ability or the opportunity to demonstrate their financial circumstances. And if they're not in a position to pay for services out-of-pocket, there is a way to get the department to pay for those services or for that school placement directly without the parents having to lay it out first. And so, it's hugely advantageous for those parents in those circumstances. But I think the point you mentioned is a very important one, that you have to be able to document it and demonstrate it. And I think that's important to remember.
Adam Dayan:
Ahmed, how does the impartial hearing end?
Amled Perez:
The DOE gets the first turn to present their case. What they have to prove is that the quintessential FAPE that they provided, the free and appropriate public education to your child for that particular school year. It may be very tempting to say, "But they didn't last year, or they didn't for the upcoming school year." But we need to keep in mind that it's just for that particular school year, there's a case for each school year.
Amled Perez:
So the DOE gets the first turn. They get to show what they did as far as evaluations, developing an IEP, and giving you either a placement or recommending services. When the department is developing an IESP instead of an IEP, they should be giving the parents a list of providers that could provide the services that they're recommending. You cannot just give the parent an IESP, tell them, "Okay, your child is supposed to get two sessions of speech per week," and then you just let them find their own. The department needs to put you in contact with providers that could meet your child's needs and that are available to give these services when you need them.
Amled Perez:
After the department presents their evidence, no matter how good or bad or if they even show up, then that's the parent's case to present evidence and witnesses. So we bring school witnesses. The ones I mentioned before, evaluators, the parent. In some instances we've even had a family friend participate in the-
Adam Dayan:
Impartial hearing.
Amled Perez:
In the impartial hearing, yes, because they were part of the IEP development process because they went with you and they have a better memory than you. We can use our imagination to build our case. What we need to show is, number one, that the program or placement that you selected for your child that was different from what the DOE was recommending was appropriate. So we need to bring school witnesses to say, for example, "We are providing occupational therapy to this kid, and the DOE never evaluated him for occupational therapy. This is not recommended in the IEP, but I looked at the child, and I identified this need, and this is why we're providing the services." Sometimes it's a one-on-one paraprofessional. So we just need these people that work day-to-day with your child at the school or that are providers, independent providers, they work for an agency, to provide the testimony to say, "How is this appropriate for your kid particularly?"
Amled Perez:
Then, some hearing officers may require a closing brief. The DOE put in their evidence or didn't show up. We presented our evidence and then they want everything summarized in one document, both the evidence that we presented in exhibits, the case law and the transcript, what they said. So, in there, we just address everything that was brought up. This is what the DOE said, this is what I say, and this is why the doe's wrong with case law, of course.
Amled Perez:
Once the closing brief is submitted, the hearing officer gets some time to draft a decision. Sometimes parents get very confused. They're like, "Well, the hearing ended yesterday. Where is my decision?" The hearing officer cannot just go on and say, "Okay, I've made my decision" once everybody's stopped testifying. They need to properly explain in their decision what they're basing it on. They need to cite case law. They need to cite who they believed, who they didn't believe, and why. The hearing officer will not issue a decision the last day of the hearing. They have a period of time to review transcripts, documents, evidence, and then they issue their decision.
Adam Dayan:
Great. Thank you for explaining that, Amled. One thing to emphasize here, the parent cooperation piece, because with any impartial hearing, we want to be able to demonstrate that the parents have cooperated with the school district throughout the process. And I think this goes to what you were saying earlier about communicating concerns. Parents have a responsibility to do that. And so, one of the points that an impartial hearing officer is going to consider, one of the points that will be argued at the impartial hearing is whether the parent cooperated throughout the process. Correct?
Amled Perez:
Yes. It's vital. You can have a case where the DOE did everything wrong. They didn't give you an IEP. They gave you a crappy school or they didn't give you a school at all. And then you enroll your kid in a special education school that does everything that your child needed, your child progresses, and you have a perfect case up to that point. And then, if you did not answer DOE emails, DOE calls, you just left them on red and said, "I'm too good for this. I'm not going to participate. My child is already attending private school, or I already have what I need. I don't need to talk to the DOE," then you lose your case. Regardless of all the other steps that you went through without the parent participation, collaboration, and overall just being there, you can't win. If you don't give the department a chance to get it right, to get it done at least, then you cannot get funding or you can get reduced funding.
Speaker 1:
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Adam Dayan:
Amled, can you talk about the settlement process?
Amled Perez:
The settlement process. When we filed the 10 day notice, the department assigns this 10-day notice to an attorney, or they're supposed to. This attorney will ask certain questions to themselves, not to me, whether there was an IEP meeting convened, whether they recommended a school placement or they recommended services, whether the parent was responsive. So based on these three or four questions, they determine whether your case is going to get referred for settlement.
Amled Perez:
As I said, they don't talk to me, they don't consult with me. I ask questions and they will not respond. This is just their mental process. It's not something that's shared with the attorney. That's our turn, our try number one, to get the case referred for settlement.
Amled Perez:
Then we filed a due process complaint. The due process complaint is longer than the 10-day notice, and it's more detailed. So instead of two pages listing what's wrong with the DOE's actions for the 2223 school year, the DOE has a whole, let's say, seven, 10 pages of things that went wrong, efforts that the parent made to reach out and was ignored, et cetera. So based on that information on the due process complaint, the same attorney, or maybe it's a different DOE attorney, gets to determine on our second try at the bat if the case gets referred for settlement.
Amled Perez:
So those are the two chances that your case has to get referred for settlement. Once we determine whether the case is going to be referred for settlement, we submit documents to the department and the DOE attorney goes with those documents to the city controller and they determine what the amount is that they're willing to negotiate with.
Adam Dayan:
Now, our firm is very successful on the administrative level, but there's always that rare instance of a bad decision with flawed reasoning or an impartial hearing officer who wasn't that impartial with respect to the particulars of the case. So how does the appeal process work in the event that you get an unfavorable or partially favorable final decision?
Amled Perez:
From the moment we get the decision, I discuss it with the parents and discuss what the reasoning was, what was favorable, and what the implications could be for appealing your case at this time. From the date of the decision, we have 40 days to go to the state review officer, which is and office that's in Albany, New York. You don't need to go in person. It's just, when I say go, I mean appear, be a motion with a request so that the state review officer looks at the hearing officer's decision and says, "Is this correct? Did the hearing officer act correctly or decide correctly based on the information they had in front of them at that time?" No new documents. Most of the time, it's no new documents, no new evidence, no new witnesses. With what the IHO had in front of him or her at the time, did they make the right decision.
Adam Dayan:
Are there any novel or unique cases that you've handled during your time at our firm?
Amled Perez:
I think the first one that jumps out is the CMEPT. It's Cuevas Medek Exercise Physical Therapy. It's a very specialized, and may I say expensive type of therapy. It's for children with Down syndrome or developmental physical disabilities. And I have seen the results. And the parents, they're so impressed. They could tell me, "My kid didn't walk until they were four years old. Then they started seeing this therapist, and all of a sudden, they're dancing." So it is very significant. I was not familiar with this therapy when the first client came up to us with it. So, since that time, I've become very familiar with it and with the providers and their practices. So it's a good experience to know that you're not always dealing with the same type of issues.
Amled Perez:
Another area that's been, I think, emerging, the executive functioning support and tutoring for students. There's not that many agencies or tutors that do specifically this type of support for kids. When these cases do come up, it may be that the child doesn't need a special education school. They may be able to pull through with the knowledge that they have, with the IQ that they have, and they only need the support to get organized, to get motivated, to finish something, to know that they can finish this. Although they're getting distracted or no matter what the obstacle is, that they know that someone's there to back it up and make sure that you're completing steps one, two, and three by this week and then doing the rest by next week. That, it seems like a minor thing, but it's very disruptive for kids that are in high school, that you're being asked to be more independent, that they're telling you, "Hey, you're going to go to college next year. No one's going to be there to support you." It's a very stressful time. So executive functioning support is also an area that I've seen it more in the last two years than before.
Amled Perez:
Last, I would say residential placements in wilderness programs out-of-state. After the pandemic, it has come up a lot. Children were just at home without the support that they needed without social interaction. So many mental health issues came up. The need for counseling, which they used to get once or twice a week, then it became a daily need. So some children, some students need the residential placements to pull them out of the rut that they're in, pull them out of the environment that's not working, that's toxic, that's just not conducive to learning. They need to be pulled out, which is a very stressful time for the whole family. So it takes so much handholding, and that has been new to me in the past year.
Adam Dayan:
Can you describe a typical day at work?
Amled Perez:
It's not typical day.
Adam Dayan:
That is not typical day?
Amled Perez:
No. I would say I review documents every day. I review emails, documents, evaluations, and anything that the parents forward that they got from the department. And it's always different because the DOE somehow gives them different advice every day. Depends if you're parent A to parent B. You could have children with the same disabilities and the department tells one, "Yes, I will conduct an evaluation tomorrow." And to the other one, they say, "Go through insurance. I'm not going to evaluate your child."
Amled Perez:
I consult a lot with paralegals about parent concerns. Sometimes I'm in a hearing for a few hours, so the parents will talk to the paralegals about something that came up, about something they heard. If they heard on the news that there's a dyslexia program that may be open, that day, I speak with a lot of parents about the plans for the city.
Amled Perez:
I speak with my colleagues about the status of their cases. As a senior attorney, I supervise other attorneys that are also doing the same thing as I'm doing. I participate in partial hearings, resolution meetings at the start of the school year and preparing witnesses for cross examination, for direct questioning. So it's a long list. Those are just the ones that I do more often.
Adam Dayan:
What changes have you seen in the students you've represented as a result of the firm's success securing the special education supports and services to which they're entitled?
Amled Perez:
I have seen a kid that used to get one-on-one ABA, go to a mainstream school. I have seen children that we represented that could not complete work on their own graduate at the top of their class and be valedictorian. We have clients that are in college. We have clients that have taken a gap year and then they're ready to move on. It varies. I mean, the children that have been getting CMEPT, to hear from parents that they're walking, that they're able to keep up with their peers or with siblings and can play around, it varies. So every child has different results, but I think parents know and they are able to appreciate when you know did the right thing. It brought everyone joy. It brought everyone together that the child is doing better or at least that they're not regressing in the most intense cases.
Adam Dayan:
It's the greatest joy of this job, hearing from parents that their kids have been making progress from the services or supports that we were able to help them put in place.
Amled Perez:
Yeah, it's very fulfilling.
Adam Dayan:
All right. Before we conclude, I have to ask, Amled, what fuels your passion? Why do you do what you do? What drives you to get out of bed and go into the office every day?
Amled Perez:
Well, it's always a professional relationship. Although, we talk so much that we end up like, "Hey, how are the other kids at the house?" I truly care about my clients. I want to know how they're doing, how they're feeling. Sometimes even though the kid is not doing great in school, they still want to talk. They want to check in about next year or something like that. So I'm fueled by knowing that I can be of support to these families. I wish I got to meet the kids more. I love kids. And we used to get more cards, like handmade cards. I still have one at home that said, "Thank you for helping me write." All the letters are facing the other way, but it's just the cutest thing. So I know, at least my nephews, they hate school. So to hear that a child is happy to go to school and that they're basically thanking us for helping them go to that school, be happy in school, learn and not feel like they're inadequate in the place where they are, that really just keeps me going.
Adam Dayan:
That's beautiful.
Amled Perez:
Thank you.
Adam Dayan:
All right. Amled, I'm so glad we had the chance to sit down in this type of format. I know this special education legal process can be overwhelming for many parents, and I'm sure this conversation is going to be very helpful in simplifying the process for them. Thank you so much for being here.
Amled Perez:
Thank you for having me.
Speaker 1: Thanks for listening to Curious Incident, a podcast for special needs families. Don't forget to subscribe for a new episode every month. For more resources and helpful information, check out our blog at dayanlawfirm.com. This podcast provides general information, which is not intended to and does not constitute legal advice. You should not rely on this information for any purpose. For legal counsel, you should consult with an attorney to discuss your specific circumstances. Your listening to this podcast does not create an attorney client relationship between you and the Law Offices of Adam Dayan, PLLC. No attorney-client relationship is established unless a retainer agreement has been executed between a client and the Law Offices of Adam Dayan. This podcast may constitute attorney advertising. Prior results do not guarantee a similar outcome. Any guests featured or resources mentioned on this podcast are for information purposes and are not endorsed by the Law Offices of Adam Dayan, PLLC.
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