Adam Dayan, Esq.
Curious Incident Podcast Episode 13: pt 2 of Implementing Decisions and Settlements
About This Episode
In this 2-part podcast, NYC Special Education Attorney Adam Dayan discusses the process of implementing favorable special education decisions and settlements with Janice Deutsch, Lead Paralegal at the Law Offices of Adam Dayan. This conversation highlighted how to move forward once a favorable outcome has been secured.
Together they discuss:
how the implementation process works once special education legal matters have been resolved favorably
what constitutes proper documentation and the importance of maintaining it
tips for making the implementation process smoother
This is a unique chance for parents of children with special needs to learn about the details of what must be done at the end of a case so that parents can keep accurate records from the beginning of the case and help expedite prompt payment from the school district. Listen to part 1 here and part 2 below.
(LISTEN) The Curious Incident Podcast Episode 13: pt 2: Implementing Decisions and Settlements
You can also listen to our discussion on your favorite podcast player including:
Do you have questions about your child's education? Call Special Education Attorney Adam Dayan at the Law Offices of Adam Dayan: (646) 866-7157 and request a consultation with our New York attorneys today.
Speaker 1: This is Curious Incident, a podcast for special needs families and your window into the world of special education. Special needs parenting can be challenging and we want to make it easier by providing you with the resources you need to help your child. Let's delve deep into the world of learning differently with your host special education attorney, Adam Dayan.
Adam Dayan: Welcome back. This is part two of our conversation with Janice Deutch about implementation. Welcome back.
Janice Deutsch: Thank you, Adam. It's good to be back.
Adam Dayan: What challenges are parents up against when it comes to implementing expeditiously?
Janice Deutsch: Expeditiously is always going to be conceptually a function of time, elapsed time from the time we've requested the documents to the time the documents are produced and static time. Where are we in the process? The beginning, the middle, the end, within the middle of the school year, at the end of the school year where all documents from the school might be cumulatively available, but documents from the bank for example, might no longer be as accessible. So if we know in advance that the parent is going to have to prove every payment that they made to a school, to a provider, to an evaluator, it's really a good practice to get those records immediately, contemporaneously with the event. Banks will allow their depositors to retrieve records online for up to a certain amount of period. You can get a bank statement going back a year.
You can get a canceled check going back six months and you don't have to go in the bank to get the record that you need. But after that period, documents are archived and you actually have to go out of your way to retrieve it and if anything happens in the interim such as closing that particular bank account, that documentation may not be available. You may have to jump through more hoops to get your hands on a copy of it. That elapsed time changes the concept of expeditiously implementing. So the one thing that is primary is whether there's delay in gathering the necessary supporting documents. The content of the documents is the second issue. We have had times when we couldn't reproduce a credit card statement, but the parent has produced the credit card receipt and it seems clear on the face of it, but the DOE operates by different standards, so we need the documents in the form that the DOE will accept.
As I mentioned earlier, a screenshot, they could say this is fabricated. It's not real. Whereas a bank statement or credit card statement with the logo of the financial institution on the top is not likely to be questioned. So the form of it, we have had times where we have gotten a copy of the front of the check, which is reproduced in the parent's statement, but we don't have the back of the check showing that it was actually deposited by the named payee. I mentioned earlier the cash affidavits. The longer we delay in getting the provider to attest to I received this money, the parent can say, "I paid this money," but if we don't have a corresponding affidavit that from the person who received it, there are issues involved in that. So at each step of the process, the parent is very aware every time money goes out of their pocket. They've handed over cash, they've given their credit card or the credit card number.
They've authorized an electronic transfer, they're aware of the money going out. If it's something they are seeking reimbursement for, that's when we need them to document it in a form that we will tell them is acceptable to the Department of Education. If it's a cash transaction and we need to create affidavits, it's really important that we don't have to at the end of the year construct every single time you called a cab for your child, you arranged an Uber or a Lyft and match that up with the dates of attendance at the end. It's really much easier if we do it monthly. It's also easier if we do flat fee instead of individual rides, but that's at the discretion of the parent and the transportation company. Each time a parent makes a payment, even if they're not sure if it's reimbursable in the end, we haven't gone to the hearing yet, we don't know what the IHO is going to authorize, but they might arrange for reimbursement for an evaluator, transportation, related services. We need that documented in real time.
Adam Dayan: And I just want to underscore the importance of that, gathering records incrementally as you go along rather than all at once. That is the best approach. It makes it easier on the parent at the end of the day. It makes it easier on our office at the end of the day and it speeds up the implementation process. Janice, how can parents help themselves in terms of working with their special education lawyers when it comes to getting matters implemented efficiently?
Janice Deutsch: One of the most important aspects of the document gathering process is the awareness of what you will need. And as I said you're aware of every time money is going out that should be documented, but it's also important that the parent be the custodian of their own records instead of relying on somebody else to provide a record or provide the information that you would need to search out whether you have the record. It's really important that you be the focal point of all document gathering. So if you have receipts and statements, you put them all in a folder, mark it by school year because some of these things will go from school year to school year, mark it by the school year and keep a record of all of the services that your child has received. You have to sign off if you are getting related services and you're paying a provider, you have to sign off that they actually provided those services on a day-to-day, hour-by-hou basis.
You can say, "Oh, well the provider is keeping those records. I don't need to." But you actually do need to. In order to work with us, if you don't have the information and we have to go and track it down from somebody else, they actually don't work for us so they are most... We establish a collaborative working relationship with most of the providers and say, in order to get you paid, or in some cases in order to get the parent reimbursed, we need this documentation. If they don't have it readily available and they'd have to create it, there's a time lag. Sometimes they can't recreate it. They've lost their records or their records were somehow destroyed or they moved and they don't know which box contains all of these things. All of that generates delay. So the first point I would make is be the custodian of your own records.
Know the details of everything you're seeking reimbursement or direct funding for. The second element is the manner in which you pay. As I mentioned, cash payments require affidavits from both the payer and the payee. The parent who paid it out and the person who received it. We of course will create those affidavits for your signature and the payee signature based on the information that each of you provides. That gathering of that information, the preparing of the documentation, the getting of the signatures, those things are affidavits. They have to be sworn to before a notary. All of those things add an element of time and delays the implementation. I mentioned before that sometimes you're not sure if something is reimbursable and you won't be sure until much later. Air on the side of caution. Get the documentation in, but when in doubt, ask. This is something that you, Adam had mentioned earlier, the concerns of the parents need to be addressed by their litigation team.
The paralegal and or the attorney that's assigned to their case will be able to tell them, "Yes, this is the documentation we need. This is the form in which we need it." We always advise our clients to air on the side of excess. We'd rather have more documentation than we need, than less. I mentioned earlier the form of the document, a screenshot, a receipt would not be acceptable, but a PDF of a bank statement, a credit card statement would be acceptable. Listen to what we ask for. We'll put it in writing. We'll say, this is what we need. This is the appropriate format. If it cannot be generated in that format, let us know and we'll find a workaround. But in general we don't submit JPEGs. We don't submit photographic images of things. We submit PDFs. We can take a JPEG and turn it into a PDF, but it's sometimes problematic. It's not always clear and it will be one of those questionable items. I mentioned before, we have missing information and mismatched information. Questionable items are things where it's not clear on the face of it.
Adam Dayan: And I just want to emphasize the IU doesn't always make clear the reason that they have not yet processed a disbursement, and so sometimes you don't want to take a chance that what's being submitted that you think is in a satisfactory state or form is deemed by the IU to be unsatisfactory and it holds up the disbursement process and you don't find out until many weeks or months later the reason for the delay. And so it's really important to get it right the first time round and avoid any such delays. Do you agree?
Janice Deutsch: I do. One of the things that we encounter fairly frequently, if the documentation is not in the proper form, we can have followed up three and four times to say, "Do you have everything you need?" before they actually tell us what the deficiency is and what we need to do to correct it? Sometimes they'll just tell us, "Your documentation is deficient," and we have to figure out what the process is to correct the issue. Normally when they're reaching out to us, they're asking us for a specific thing, but sometimes it's not clear and we have to go back and forth and clarify with them. All of these things add to the protracted timeline of implementing the FOFD or the pendency order or whatever it is. Speaker 1: If you like what you are hearing, please let us know by subscribing to the Curious Incident podcast and letting other special needs parents know about it too. If you have thoughts, questions, comments, or would like to suggest ideas for a future episode, we'd love to hear it. So email your feedback to firstname.lastname@example.org.
Janice Deutsch: As I mentioned earlier, we try to put the documents in as clear and concise a format as possible. There are things that parents can do to expedite that process before they get us the documents. When we get the documents, we're going to go through them. We're going to redact information that shouldn't be submitted. We're going to remove extraneous pages that aren't needed as part of the process so that instead of a 20-page credit card statement that has one page with the specific charge we're looking for, we're going to remove all of the extraneous documents. We can instruct the parents on how to manage that process before they send us the documents.
Sometimes a parent will send us a document directly from their bank and it will be in what they call secure format. It's a financial document. They of course want to protect your privacy. They send it encrypted and in order to submit it to the Department of Education in a way that they can see it, we have to unencrypt. We can give you instructions on how to unencrypt the document before you send it to us. We can, if you have the ability to eliminate certain pages and print other just specific pages that are relevant, we can instruct you on that and that will save us time in the review process, in the document management process and in the submission process. It will also save the IU time in their review process.
The other thing I want to mention is something I referred to earlier where there might be a discrepancy between the proof of payment and the information on other documents. If you know that the amount that you paid is different from the amount that the school charged for the particular thing that we're seeking reimbursement on, you paid for a lunch program in the same check that you paid tuition. You paid a fee for your child to have some other service, and it's all combined in one payment. We need to be aware of those discrepancies and provide the IU with an explanation. If that explanation comes from you with the documents, we don't then have to go back and ask you to explain the discrepancies in the amounts.
Adam Dayan: Can the complexity of a student's educational needs add complexity to the implementation process and if so, how so?
Janice Deutsch: Definitely. The more components of the child's total educational program, the more documentation we're going to need, the more detailed the submissions will get, and the longer it takes to both gather the documents on our end, on your end, and the longer it takes the review process on the Department of Education's end. So if you have a straight FOFD that says the Department of Education is required to pay 100% tuition to the private placement school, that's simple, it's straightforward, it's tuition only. It's not dividing the tuition between what the parent paid and what the school is owed. It's one payment. It's a much more straightforward process.
But if you have a child who is attending a school where the parent has paid a portion and the school is still owed a portion, the child is also receiving afterschool programs for ABA or at home services for speech language therapy, we have cases where there could be eight providers offering services to the child in their comprehensive program. There might be an evaluation component. There might be a transportation component. For every one of those components the same way that the hearing officer spells out individually what is payable and what is not, we have to compile our documentation accordingly. So the more components, the more submissions, the more details we have to ensure the accuracy of or explain the discrepancies of, and that will add to the amount of time it takes to complete implementation.
Adam Dayan: What other advice do you have to parents who are new to this process?
Janice Deutsch: The first bit of advice is don't panic. It's not as insane as all of these details are making it sound, and you're also not alone in the process. We are right there with you. We're giving you guidance every step of the way. We will explain why we need what we need, and if it's not available, we'll find a workaround if it's at all possible. We've been doing this for a dozen years or more. We're actually quite good at it. We have our people trained to understand the needs and the pitfalls and the ways of addressing any discrepancies in the process. You have us as a resource. You can ask for our input. You can rely on us to give you accurate information. The second element is it's not as insane as it sounds and we do our part very expeditiously, but the implementation process requires a great deal of perseverance on your part, on our part.
In fact, giving credit where it's due on the DOE's part. This is a big process and the DOE might be facing 10,000 cases that they're trying to implement. Ours is one, and we're not going to let it go by the wayside. We're going to continually call attention to it until we get paid, but it takes a great deal of perseverance and patience in order to get through that process. When you're frustrated, recognize that we're frustrated too, but we are in this together. We are going to get it done. Take a breath. Remember that these are obligatory payments. They're eventually going to come through. If there is some problem with the documentation we will eventually get it straightened out. We will do whatever is necessary to get the IU or the MPSP to pay what is owed and no matter how frustrating the process can be at times, there's always, I will say, always hold to hope.
Adam Dayan: What recourse do parents have if the DOE does not comply with implementing in a timely manner?
Janice Deutsch: There are a number of ways to escalate the matter both within the implementation unit and outside the implementation unit. There is a hierarchy at the DOE as there is in all bureaucratic institutions where we deal with one person for our submissions and they have a supervisor and that supervisor has a supervisor, and overall the Department of Education has a legal services department where we can escalate the matter before we consider going to litigation for the purposes of enforcing an FOFD disbursement award. The issues there are we want to handle it at the administrative level if it's at all possible before we take it to a litigation level. So we give a number of warnings before we take it beyond the implementation unit. There are time factors involved. There are expense factors involved in going into the litigation process. We want to limit that burden for our clients.
We want to limit that burden for our practice. We want the IU to have every opportunity to get the task done. We don't want to take it beyond, but if we have to, if months and months have gone by, sometimes a year can go by and we don't even know what the issues are, we will then say, "Hey folks, it's been a year. If we don't get a response from you immediately, we're going to have to escalate this to the litigation level." There were several steps in that process. It doesn't immediately say, "Okay, let's file a lawsuit." There are steps in the process, but there are avenues to pursue, and typically when we get to the pre-litigation notice point, we do get more immediate responses from the IU. It isn't necessarily going to be an immediate disbursement, but it's going to be we need this documentation. We don't have that information. This needs to be clarified and at least forward progress is being made.
Speaker 1: If you like what you are hearing, please let us know by subscribing to our podcast and letting others know about it too. If you have thoughts, questions, comments, or would like to suggest ideas for a future episode, we'd love to hear it, so email your feedback to email@example.com.
Adam Dayan: Janice, do you have hope for improvement at the DOE in the future?
Janice Deutsch: Actually, I do. It's sometimes strange to be able to say it because part of my job is following up on the glitches and the delays and the problem areas, but I have seen improvement in the two years that I've been doing this at our firm. I have seen progress being made both on our side for gathering documents and streamlining the implementation process, but also on the review process for the IU. There is a federal action that has been pending, that has created certain circumstances, certain requirements for the implementation unit, and as a result of some of those directives from the federal court we have gotten a new liaison for our office to review our documents and apportion it out to the handlers at the implementation unit, and we've gotten more responsiveness in terms of turnaround time, requests for clarification. It's not a hundred percent, but I'm seeing, I don't necessarily want to call it an expedited process because it isn't always fast, but it's thorough and it is more direct.
They're not talking at us and saying, you failed to do this. They're saying, this is what we need and please provide this and we'll get, we will do the processing. We're getting more notifications of the IU having completed their portion of the implementation process. I mentioned earlier that in certain cases, once the documentation is reviewed and approved for disbursement, the record goes to somebody else to actually do the disbursement. Sometimes there's a lag time in between those things, but we've been seeing an uptick in the number of approvals and authorizations that we're getting.
Adam Dayan: Before we conclude, tell me a little bit more about you. What makes your approach or outlook unique given your particular background, skills and experiences?
Janice Deutsch: I was born with a physical disability. Well, not severe, but a progressive condition where I was told I would be wheelchair-bound by the time I was 40. As it turned out I was wheelchair-bound by the age of 32. It took me a great deal of struggle and a great deal of time and effort to get out of the wheelchair. Two doctors said it would never happen, that I'd never walk again. I basically thumbed my nose at them and said, "You don't get to decide that. I get to decide that." There was a little bit of arrogance in that position, but I was determined that I was not going to spend the rest of my life in a wheelchair as predicted. I eventually graduated to a walker and then to canes and to the ability to walk unassisted without any devices for short periods of time.
In the process of doing that I developed a fierce determination that I would never let anybody else set my limits. People could tell me this is what's possible, this is what's not. They could tell me you have to do this and you cannot do that, but I am part of that process. I determine what I am capable of and what I am willing to do. Until I have tried everything and utterly miserably failed without any progress I believe that I can achieve whatever I set my mind to and have the resources to pursue. I don't accept. I can't until that failure, and even then if I had ended up in that wheelchair permanently, I would still be striving to make the most of whatever residual abilities I have, whatever opportunities I have.
It's crucial to my outlook on life, and it's also crucial to the work that we do in the firm. We deal exclusively with people, families of people, with special needs. We are seeking the best possible outcomes for them. We are seeking the services. We're seeking the program. We're seeking the financial compensation that the family is due. We want the best for them the same way that I wanted the best for me. There are people who will say, "This is not achievable," or, "This is too hard," or, "It's not worth the struggle." It's worth the struggle. I think it's worth the struggle, and I think that anybody else who comes to us for assistance, they're worth the struggle, so reach for the sky. I reach for the sky even if I'm doing it from a wheelchair, even if I have a cane in my hand, I'm going to reach for the sky because I can.
Adam Dayan: Janice, what fuels your passion? Why do you do what you do? What drives you to get out of bed and go into work every day?
Janice Deutsch: I am very mission driven. I have a sister who says that I was a soldier in a past life. Give me my marching orders and I march and I'm going to achieve the mission. Give me a good cause to go along with that drive and I am all in. Sometimes that drive and that cause is to seek justice, helping children, unburdening families, promoting educational opportunities. I can't think of a better cause than that. It inspires my passion, it activates my drive, and this is why I get out of bed and do what I do.
Adam Dayan: That's wonderful. I can't think of a better cause either. Janice, thank you so much for recording this episode with me. I know it's going to be hugely helpful to parents trying to understand the implementation piece of this puzzle. I also want to say that it's been wonderful working with you over the last two-plus years. I respect and share your passion for fighting for special needs children. You're an integral part of our firm and I look forward to continuing to fulfill our mission together and achieve more successes for the children we fight for every day.
Janice Deutsch: Thank you so much. I am looking forward to the same.
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 website and 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 the 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.