We fill the communication gap between representative/lawyer and client by working on a set-fee basis, not an hourly rate, and by giving unlimited time to research and to discuss the facts and issues. Our goal is to assure each client that he or she has someone in their corner at all times and that the arguments presented are accurate and comprehensive. We keep all parties on the same page.

That's what Due Process Advocacy is all about: preserving the right to be heard and to have relevant facts considered.

Monday, May 3, 2021

Whistleblowers Need To Be Protected



If you are an employee in NYC I think you may have heard about a co-worker who sees another employee do something abusive, harassing, or wholly improper and the observer reports what happened, only to be discontinued or fired for making that report?

Whistleblowers need to have a say and be heard in the workplace.

Note: While I have posted the Outten and Golden LLP blog post below, I do not work for the lawfirm.


Congress Proposes Vital Protections for Whistleblowers as Workplaces Reopen

, Employment Law Blog of Outten and Golden, Apr 7, 2021 | Retaliation & Whistleblowing |


COVID-19 has devastated countless individuals and businesses, both economically and personally. Local, state, and federal agencies have hastily authorized economic relief programs to help ease the impact on families, communities, and the national economy. To address community needs, many agencies quickly distributed funds with minimal oversight.

Although this helped expedite relief payments, it also opened the door for improper distribution of these funds. To prevent fraud and misuse of federal benefits, members of Congress have introduced proposed legislation called the Coronavirus Oversight and Recovery Ethics (CORE) Act, which also includes critical whistleblower protection provisions.

Implementing Federal Oversight and Expanding Whistleblower Protection

Many small businesses need federal grants and loans to continue operations and reopen workplaces successfully. Some will use Coronavirus Aid, Relief, and Economic Security (CARES) Act programs, like the $500 billion corporate bailout fund and the Paycheck Protection Program. As the pandemic continues, Congress may pass additional legislation enabling other loan and grant programs to help avoid economic disaster for businesses and individuals.

To reduce profiteering and ensure that CARES Act benefits and other federal aid funds are fairly and lawfully distributed, the CORE Act proposes a multi-faceted approach, tackling potential fraud from many angles, that:

  • Empowers and funds the Office of Government Ethics to take steps to reduce conflicts of interest in the selection or hiring of contractors or advisors and the distribution of relief grants and loans, including prohibiting receipt of bailout funds by companies closely connected to government officials.
  • Protects Inspectors General from retaliation by requiring them to be removed only for cause, requiring Congress to be notified of their removal, and providing Inspector Generals a means to bring suit to challenge the firing.
  • Strengthens the authority of the Congressional Oversight Commission by expanding their jurisdiction to all COVID-19 relief funding and providing them with subpoena authority, as well as the oversight entities and Executive Branch accountability requirements of the CARES Act, including requiring a weekly reporting of instances in which they were unreasonably denied information from the executive branch.
  • Restricts lobbying and political spending by bailout recipient companies by requiring monthly reporting to prevent “quid pro quo” handouts.
  • Improves transparency about the disbursal of bailout funding by requiring public reporting detailing the use of the funds, the recipients, employee compensation data – including bonuses, and whether the company has been charged with violations of federal law.
  • Establishes strong whistleblower protections for government employees, government contractors, and private-sector workers who witness and report waste, fraud, or abuse or are victims of misconduct.
  • Creates individual causes of action for individuals harmed by the prohibited misconduct, allowing private lawsuits, and establishes personal responsibility for senior executives for their corporate wrongdoing.

Fleshing Out Employee Whistleblower Protections

Several laws are already in effect to protect employees who blow the whistle on misuse or theft of federal funds during the coronavirus pandemic. The federal False Claims Act (FCA), for example, protects and even provides incentives for workers who report employers misusing, misappropriating, or improperly obtaining government funds. Properly making a claim under the FCA, however, can be complicated, and the law contains numerous restrictions and exclusions limiting who can file a suit.

The CORE Act would protect most workers who reasonably believe their employer is misusing economic aid related to COVID-19, allowing them to report alleged improprieties without fear of reprisal or retaliation. It would also protect workers from retaliation after reporting conduct they “reasonably believe[] would require the employee to violate th[e] Act . . . with respect to any Coronavirus pandemic-related program, project, or activity.” The proposed Act leaves it to the Secretary of Labor to establish the rules and procedures for administrative investigation and hearings, appeals, and relief, indicating that – as much as possible, it should mirror the Taxpayer First Act.  As more organizations apply for and receive these vital federal benefits and use them to reopen, returning workers will play a critical role in preventing employers’ unscrupulous behavior.

Employees who know of or suspect their employers of fraud or who have concerns about the safety of their workplace should consult an attorney immediately. Numerous state and federal statutes protect whistleblowers, but every situation is unique. An experienced attorney – like the lawyers in Outten & Golden’s Whistleblower-Retaliation Practice Group – can help you chart the best course of action for your situation.


Section 740 - Retaliatory personnel action by employers; prohibition

Whistleblower Claims on the Horizon Amid COVID-19 Pandemic

  1. Proskauer Rose LLPSteven J. PearlmanApril 20, 2020
    The NLRB held that such a policy restricted the employee’s right to publicly complain about workplace issues of common concern to all employees, and therefore, the employee was “discharged for engaging in protected concerted union activity in violation of Section 8(a)(1) and 8(a)(3).”New York Whistleblower StatutesNew York has two whistleblower statutes—New York Labor Law § 740 and New York Labor Law § 741—that may be relevant to claims arising from COVID-19, but differ from one another in significant respects, as discussed below. As we have previously reported, the New York whistleblower statute, New York Labor Law § 740, protects employees from retaliation for reporting a violation of the law that “creates and presents a substantial and specific danger to the public health or safety.”
  2. Can I be Fired for Refusing to Report to Work During the Coronavirus Pandemic?

    Sanford Heisler Kimpel LLPAndrew MelzerMarch 28, 2020
    For example, New York State law protects employees who “object to, or refuse to participate in any activity, policy, or practice” “that is in violation of law, rule, or regulation which violation creates and presents a substantial and specific danger to the public health or safety.” NY Labor Law § 740(2). This would seem to include refusals to violate official stay-at-home or social distancing orders.
  3. Port Authority Not Subject to Worker-Friendly New Jersey Whistleblower Law, State Court Rules

    Jackson Lewis P.C.Richard CinoMarch 29, 2017
    Sullivan maintained he was pushed out because, in 2011, he reported to his superior, the Chief and Director of Public Safety, that he confronted an officer who had obtained photographed copies of an examination to become a sergeant in the Port Authority’s police department. In August 2012, Sullivan served a notice of claim on the Port Authority, alleging violations of the New York Whistleblower Law (NYWL), N.Y. Lab. Law § 740, and the New York Civil Service Law. N.Y. Civ. Serv. Law § 75(b). On May 15, 2013, he filed a complaint in the Superior Court of New Jersey, Hudson County, alleging retaliation and civil conspiracy in violation of CEPA, and sought reinstatement and damages.
  4. Healthcare Litigation - February 2017

    Manatt, Phelps & Phillips, LLPBarry LandsbergFebruary 23, 2017
    Id., § 1-502, 1-505(5), (6). Other states with similar healthcare employee whistleblower statues that authorize money damages in actions brought by an employee physician against a hospital include (but are not necessarily limited to): Illinois (210 ILCS 86/35, 86/40); New York (N.Y. Labor Law §§ 740, 741); and Texas (Health & Safety Code § 161.134).
  5. Health Update - February 2017

    Manatt, Phelps & Phillips, LLPKinda SerafiFebruary 22, 2017
    Id., § 1-502, 1-505(5), (6). Other states with similar healthcare employee whistleblower statues that authorize money damages in actions brought by an employee physician against a hospital include (but are not necessarily limited to): Illinois (210 ILCS 86/35, 86/40); New York (N.Y. Labor Law §§ 740, 741); and Texas (Health & Safety Code § 161.134).
  6. Employees Need Not Identify Specific Law, Rule or Regulation Violation in Pleading Retaliation Claim Under New York’s Whistleblower Statute

    Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.David KatzMay 29, 2014
    Earlier this month, in Webb-Weber v. Community Action for Human Services, Inc., New York’s highest court overruled several appellate court cases in holding that an employee need not identify the specific law, rule or regulation allegedly violated by his or her employer in pleading a retaliation claim under New York’s whistleblower statute. Ms. Webb-Weber served as COO of Community Action, a not-for-profit organization providing social services to the mentally and physically disabled and subject to oversight by the State. Plaintiff filed suit against Community Action claiming that it terminated her in violation of New York Labor Law § 740, the “whistleblower statute,” for registering complaints with public agencies concerning certain policies and practices of Community Action. Specifically, according to her complaint, Ms. Webb-Weber alerted Community Action to issues she claimed endangered the welfare and safety of patients, including falsification of patient medication and treatment records, inadequate fire safety, mistreatment of residents and deficiencies in patient care and in the facility itself.
  7. New York’s Court of Appeals Makes it Easier to Plead Whistleblower Law Claims

    Hodgson Russ LLPJoseph BrownMay 23, 2014
    The Court of Appeals’ decision in Webb-Weber v. Community Action for Human Services, Inc. likely means that more whistleblower claims will be able to survive the motion to dismiss stage and can proceed to the discovery stage, which can be expensive and time consuming. By way of background, New York Labor Law § 740, commonly referred to as the “whistleblower statute,” prohibits an employer from retaliating against an employee who “discloses or threatens to disclose to a supervisor or public body an activity, policy, or practice of the employer that is in violation of the law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or…constitutes health care fraud.” To prevail under this law — which applies to both private and public employers — a whistleblower must ultimately establish an act

Trending Now: Attempts To End Employment-at-Will

 


For many years there has been an effort to undo unionization and to give employers the right to fire employees whenever they want, for any reason.

Today, the trend is against this power imbalance between employer-employee, and give the workers powers of their own. 

We are all for this movement.

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials


The Movement to End At-Will Employment
Is Getting Serious

On March 31, a group of worker centers, unions, community groups and policy organizations in Illinois officially formed a new coalition, Stable Jobs Now, that aims to dramatically shift the power balance between workers and bosses by eliminating ?“at-will” employment?—?the practice that allows employers to fire their employees on a whim.

In most of the rest of the world, workers are protected by the ?“just cause” principle, which says they can only be terminated for legitimate, documented reasons connected to poor job performance. But in the United States, the at-will doctrine allows bosses to arbitrarily fire employees for any reason or no reason whatsoever, with the burden of proving it was an unlawful dismissal placed on the worker. 

“It’s like we’re disposable to them,” said Estrella Hernandez, who was abruptly fired from her stitching job at a Chicago-area factory in December 2020. ?“I got to work one morning at 4am and the supervisor told me I couldn’t be there, that they had let me go the day before… I asked the reason and they said they didn’t have to tell me and told me to just go home.”

Hernandez believes she was fired as illegal retaliation for raising concerns about the inability to practice social distancing in her cramped work area, but she can’t prove it, especially since her employer never provided a reason for her dismissal. 

Predominantly Black and Latino workers in Chicago’s low-wage jobs routinely face illegal retaliation for reporting workplace injustices like unsafe conditions, wage theft, injuries, sexual harassment and discrimination. The at-will doctrine makes it practically impossible for employees to prove they were fired as retaliation for speaking up against illegal abuses.

new study published by Raise the Floor Alliance, a group of Chicago worker centers, and the National Employment Law Project (NELP) found that 37percent of Illinois workers have been fired for an unfair reason and 42 percent have been terminated for no reason at all, with Black and Latino workers the most likely to be fired. A third of those who faced unfair discharge say it was over raising concerns about problems on the job.

“While conditions were bad for working people well before the pandemic, this past year has highlighted and exacerbated these conditions,” said Sophia Zaman, executive director of Raise the Floor Alliance.

The Stable Jobs Now coalition is pushing for passage of the Secure Jobs Act, a bill recently introduced in both chambers of the Illinois General Assembly. The legislation would make Illinois the second state to adopt a just cause system. Only Montana currently restricts at-will employment, a law dating back to 1987.

Among other measures, the Secure Jobs Act would lay out valid reasons for termination, grant workers a fair chance to improve their job performance before being fired, prohibit ?“constructive discharge” where employers pressure workers into resigning by creating a hostile work environment, outlaw ?“Do Not Hire” lists (a practice prevalent in the temp industry), and allow workers to accrue severance pay that employers would have to disburse upon termination. The law would be enforced by the Illinois Department of Employment Security, but would also permit fired workers to sue their employers under a private right of action.

“At-will employment has been a longstanding problem in the state and at-will termination has long endangered the stability of our communities,” said State Rep. Carol Ammons, the Secure Jobs Act’s chief sponsor in the Illinois House of Representatives. Ammons previously spearheaded a successful legislative effort to enshrine more rights for temp workers in Illinois. 

The new campaign in Illinois is part of a budding national movement to end the at-will employment system. In the past two years, Philadelphia and New York City have both enacted just cause bills covering parking lot attendants and fast-food workers, respectively. 

“This cries out for a signature federal bill, however long it takes to pass,” said Shaun Richman, an In These Times contributor and advocate for a national just cause rule. ?“In the absence of that, you’ve got these sort of rebel cities and blue states that are introducing their own bills as signal efforts.”

“This movement is still at an early stage, perhaps where the Fight for $15 or the paid sick days movements were a decade ago, which is why the work being done here in Illinois is so important and exciting,” explained NELP senior researcher and policy analyst Irene Tung.

Proposals to enact just cause laws are widely popular, with a recent pollfinding that 67 percent of likely voters support the idea.

“At-will isn’t a law anyone voted for, it was just made up by judges in the 19thcentury,” Richman said. ?“Let’s actually have a vote on this. Let’s put this to the people.”

Traditionally, U.S. employers only have to follow just cause rules in workplaces governed by union contracts, but only 11 percent of the national workforce is currently unionized. Several unions have joined the Stable Jobs Now coalition, including the Chicago Teachers Union, SEIU Healthcare, SEIU Local 73, Amalgamated Transit Union Local 308, Cook County College Teachers Union, and the United Electrical, Radio, and Machine Workers of America.

Coalition organizers say they are also in communication with the Illinois AFL-CIO. The state labor federation supported a similar wrongful discharge bill in 2017, but so far has not endorsed the Secure Jobs Act and did not respond to In These Times’ requests for comment. 

“The American labor movement has this weird, total exception to the rule that we base this right in collective bargaining,” Richman said. ?“It’s time to get over that. This really should just be a law. It sucks up so much time in collective bargaining. Also, workers know they will be fired for organizing a union. Let’s make it a law that you can’t be fired unless it’s for a good reason, and then we’ll get more unions.”

Importantly, the Secure Jobs Act includes a provision that would restrict bosses from using data gathered through electronic monitoring to make decisions around discipline or dismissal, instead limiting such decisions only to human-based information. The new study by NELP and Raise the Floor Alliance found that 52 percent of Illinois workers are observed, recorded, or tracked at work through various forms of surveillance technology.

Delivery driver Jesus Ruelas told In These Times that he was fired by Amazon last year partly because he had a low score on Mentor, an app he said the company uses to monitor ?“how fast we’re driving, if we’re reversing, how fast we’re turning, how hard we’re braking, and whether we’re putting a seatbelt on.”

Amazon drivers nationwide complain that Mentor often provides glitchy, inaccurate, or misleading data that doesn’t take real-world conditions into account?—?leading to unfair discipline and discharge. 

“The app just records what you do, it’s not advanced enough to know if you’re doing it for a reason. If you brake on a slick road, it records that as a negative thing,” Ruelas said. ?“Amazon will let you go for anything they can think of.”

The proposed legislation is certain to face opposition from employer groups, but since 2019, the Illinois General Assembly has managed to pass a host of progressive reforms, including a $15-an-hour minimum wagelegalization of recreational marijuana and abolition of cash bail.

“At its core, this is a racial justice and economic justice issue that can no longer be ignored,” said State Sen. Celina Villanueva, the bill’s chief sponsor in the Illinois Senate. ?“We have to catch up with the rest of the world and end this perverse and broken system that seeks to subjugate workers.” 

This blog originally appeared at In These Times on April 6, 2021. Reprinted with permission.

About the Author: Jeff Schuhrke has been a Working In These Times contributor since 2013. He has a Ph.D. in History from the University of Illinois at Chicago and a Master’s in Labor Studies from UMass Amherst.

Saturday, November 14, 2020

NYC Infohub Best Practices For IEP Team Functions During Remote and Blended Learning

 


Best Practices for School-Based IEP Team Functions During Remote and Blended Learning

On this page...

Open Cases 

Assessment 

Comprehensive Data-Driven Assessment 

Referrals and Consent 

Initials and Re-evaluations 

IEP Meetings 

The IEP Process 

Interpretation and Translation 

Service Recommendation and Implementation 

At the conclusion of the meeting 

Prior Written Notice 

Placement or Initial Provision of Services 

Comparable Service Plan (CSP) 

Manifestation Determination Reviews (MDRs) 

The use of a comprehensive data-driven model was launched in Spring 2020 to support the assessment process during remote instruction. We have fostered successful partnerships between teachers, clinicians, parents, and students to gather and analyze multiple sources of data to gain information regarding the reason for referral, evaluate student progress, glean information regarding student’s academic strengths and weakness, and plan for the needs of individual students through this special education evaluation process.

Our purpose in continuing in this direction is to provide a means for assessment of students who are participating in school exclusively remotely, to assess students in blended learning to limit face-to-face interactions, and to provide additional qualitative data to use in conjunction with other sources of data. The National Association of School Psychologists (NASP) suggests caution in interpreting traditional standardized assessments, as the norms do not apply to students that have experienced a 5-6 month disruption in school-based learning; therefore, the flexible comprehensive data-driven model will also be used to supplement traditional standardized assessments.

Clinicians should refer to the SOPM as needed for further detail throughout the evaluation and IEP process. This guidance and the best practices document to supplement the SOPM during remote/blended learning and will be updated as needed throughout the school year. 

Open Cases

At the beginning of this school year, clinicians will create a case management structure that will address each student on their caseload for SY 19/20 and SY 20/21. The Case Management Framework gives concrete guidance for the completion of open cases from SY 19/20 and how to best move forward with open cases for SY 20/21. On a monthly basis, a case management log must be sent to your supervisor with a CC to the associated school principal. Guidance regarding case management can be found here.

To minimize risk, remote comprehensive data-driven assessments must be the primary mode of assessment and used for all evaluations requiring a psychoeducational. If the school psychologist – in consultation with the family and supervisor of school psychologists – determines that face-to-face assessment(s) are necessary to answer the referral question, the school psychologist should seek to conduct the assessments. Comprehensive data-driven assessments can be conducted remotely (e.g., developmental history, review of existing data, web-based rating scales, student pre-assessment forms, response to intervention data, and information gleaned from consultation with teachers and parents) and through socially distanced social interviews. The Supervisor of Psychologists may assist in making the determination of whether a remote (virtual) or face-to-face assessment is required through individual case consultation. The family should also be consulted to get their input into whether a face-to-face assessment is necessary. In making such a determination, the school psychologist and Supervisor of the School Psychologist will consider all relevant factors. The final determination of whether an assessment will be conducted in person will be the sole discretion of the school psychologist. 

Assessment

The SY 2020-2021 assessment policy can be found here. Note that students who participate in remote-only instruction and for whom face-to-face assessments are necessary should be offered the option of face-to-face assessment through a Request for Assistance (RFA).

At this time, the following activities will continue to take place remotely:

Comprehensive data-driven assessments

Individualized Education Program (IEP) meetings

Social History Interviews

Manifestation Determination Reviews (MDRs)

Definition of psychoeducational assessment:

A process by which a New York State-certified school psychologist or licensed psychologist uses, to the extent deemed necessary for purposes of educational planning, a variety of psychological and educational techniques and examinations in the student’s native language, to study and describe a student’s developmental, learning, behavioral and other personality characteristics. 

Definition of comprehensive data-driven assessment:

A flexible form of assessment that can be conducted remotely using developmental history, review of existing data, web-based rating scales, student pre-assessment forms, response to intervention data, and information gleaned from consultation with teachers and parents through socially distanced classroom observations and clinical interviews if needed. 

Comprehensive Data-Driven Assessment

The Comprehensive Data-Driven Assessment is used in all evaluations requiring a psychoeducational. Upon completion of a data review, interpretation, and analysis, the school psychologist must prepare a written report documenting the eligibility determination of a student suspected of having a disability. This report shall include the basis for how the decision was made and should specify if and/or how the student has participated in the RTI process.

A comprehensive data-driven assessment will be detailed in a written report. The written report will accurately describe the student’s academic levels, functioning, and performance in the following areas: Oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, mathematics problem solving and adaptive behavior.

To develop the written report, the school psychologist will collect multiple sources of information and multidisciplinary data and then conduct an analysis. The report will include the following:

Results of classroom assessments(Open external link) over a period of time (informal and formal assessments such as benchmark, curriculum-based assessments, benchmark assessments and end of year assessments)

Teacher reports

Summary of progress monitoring data associated with the intervention process (academic and/or behavior)

Completed Student Pre-Assessment Teacher Report

Aptitude and achievement tests (if available)

Parent input related to the suspected disability

Student’s physical, mental, and emotional condition

Social or cultural background information relevant to the suspected disability

Adaptive behavior skills

Prior testing data such as a psychoeducational (if applicable)

Results of the Social History Evaluation

Classroom Observation(s)

Results of most current NYS assessments (ELA, Math, NYSESLAT, Regents)

Educationally relevant medical reports and findings

Attendance history, including participation in remote instruction

Results of standardized assessment, when appropriate

A comprehensive written report integrates a variety of psychological and educational techniques and examinations to study and describe a student's developmental, learning, behavioral and other personality characteristics. The results of the written report will support in determining a student’s eligibility or continuing eligibility for special education services. In some instances, the results from the comprehensive data-driven assessment may support the need for targeted face-to-face assessment(s) in the area of cognition (selected subtests of a psychological assessment) or achievement (selected subtests of an educational assessment) as a necessary component of the assessment process. If a face- to face assessment is deemed necessary after the completion of a written CDDA, subsequent targeted face-to -face testing should be uploaded to SESIS using the appropriate report template in SESIS. That is, the psychological report template of the targeted assessment is focused on areas of cognition and educational template if the area of focus is academic functioning. It is recommended that an event be created in SESIS that indicates the area of targeted assessment.

Student Pre-Assessment Teacher Form

The first required component of data collection associated with a comprehensive data-driven assessment will include the Student Pre-Assessment Teacher Report. The Pre-Assessment Teacher Report serves as a tool to learn about a student’s current level of functioning in multiple areas, strengths, weaknesses, access to core instruction, and response to interventions. This source of data should be completed as a team and/or by the multiple stakeholders who currently or previously work with the student. The sections of the form include Identifying information, cognitive functioning, academic/classroom functioning, participation in pre-referral interventions, social-emotional functioning, and a summary. To support teams in completing the form, training is available through the Special Education Office. The training includes examples and assessments for teachers to capture the student’s current performance. As a reminder, the data collected through this form will inform eligibility determinations for students. As such, it is crucial that teachers completing the report respond accurately and fully. To access the elementary form click here(Open external link) for middle/high school click here(Open external link).

Functional Behavior Assessments during Blended and Remote Learning

The shift to a new environment, whether fully remote or blended, requires us to collect new data on student behaviors. The new data will help to identify if the same behavior(s) are still occurring or if a new behavior is occurring.

If the same behavior is occurring in the new environment, the team will use the data along with the Considerations of a Student’s Need for Positive Behavioral Supports, FBA, or a BIP [link] to determine if an FBA does not need to be conducted, but the intervention strategies in the BIP need to be adapted. See below for guidance on adapting the BIP for the new environment.

If the behaviors are not occurring in the new environment, or if the behaviors are different than in the past, the team will use the data along with the Considerations of a Student’s Need for a Positive Behavior Supports, FBA, or a BIP to determine if an FBA needs to be conducted.

When appropriate, families and caregivers should be included in the planning process to obtain data to inform the FBA. 

Classroom Observations during Blended and Remote Learning

As part of an initial evaluation, an observation of the student in the student’s learning environment is required and must be conducted during this period of remote and blended learning. Additionally, classroom observations are a necessary component of Functional Behavior Assessments. Guidance on the completion of classroom assessments can be found below:

Learning environment observation

Observations of live (synchronous) remote learning sessions can be conducted through the remote learning platform in use by the school. To arrange the remote observation, take the following steps: 

Contact the student’s school or agency to determine if live instruction is being provided and to make logistical arrangements.

For K-12 students attending DOE schools, reach out to the student’s classroom teacher via email to schedule a lesson to observe. You may alternately reach out to the special education liaison or school administrator to schedule the observation.

For K-12 students attending NPS or charter schools, reach out to the school’s special education liaison or administrator to schedule the observation.

For T5 students who are engaged in remote learning, contact the agency or school providing these services to schedule the observation. 

Note that for observations of students attending bilingual classes, the observation should be conducted by an observer who understands the language of instruction. If that is not possible, contact your supervisor.

Ensure that the parent’s consent for assessment has been sought and obtained and that the remote assessment process (including a description of the remote observation process) has been explained to the parent.

Conduct the remote observation on the remote learning platform in use by the school. The staff member should log into the live instruction classroom. They should mute their audio and turn off their video to ensure there is no disruption to the learning environment. Depending on the live remote learning platform in use, the observer should “pin” the student in the platform to ensure they can continue to observe the student for the duration of the class. If possible, the teacher should ensure in advance that the student’s audio and video will be turned on for all or part of the lesson and the teacher can organize the lesson to facilitate select interaction to take place involving the student. The goal would be to permit the observer to see student to teacher participation or student to student participation. If instruction sessions are short (e.g., under 30 minutes), a second observation may be scheduled (when warranted) to ensure sufficient opportunity to gain a meaningful understanding of the student’s functioning in the live remote classroom.

When completing the observation report, in the Classroom Observation in SESIS, state the following in the “Findings” section:

The following observation has been conducted during remote instruction. Information gathered from this observation should be interpreted with caution, as this is a novel learning environment for the student and teacher and there may be multiple variables (e.g., COVID-19, home environment, alternative learning format) that impact this observation. This observation should be used in conjunction with other evaluations, school-based assessments, teacher input, and most importantly, student performance prior to school building closures. 

In-Person classroom observation

If a student is participating in blended learning, an in-person classroom observation may be completed if it is clinically warranted and necessary (e.g., initial referral, functional behavior assessment (FBA). When possible, clinicians should plan to group observations of students in the same class on the same day in order to reduce the number of classes entered.

In-person classroom observations should only be completed when necessary and appropriate (e.g., initial referral, functional behavior assessment (FBA).

All classroom observations – including observations for FBA data collection – should be scheduled with the classroom teacher or designated staff member at least 24 hours prior to the observation. 

The clinician should request that a chair be designated for the observation that is 6 feet from all students, but within visual range of the student to be observed. The chair should not be used by anyone prior to the observation or after it unless it has been disinfected.

Clinicians should schedule observations in a limited number of classrooms each day. The clinician may observe multiple students in one class per day, but it is best practice to refrain from observing in more than 2-3 classrooms in a single day.

Clinicians must wash or disinfect hands prior to entering the classroom and after leaving the classroom.

Clinicians must wear, at minimum, a face mask throughout the observation.

Clinicians should bring their own supplies (e.g., pens, paper, computer) to the observation and take all these items out of the room once the observation is complete.

Observations may not be conducted during lunchtime, when students are not wearing masks.

The assessment process and eligibility determinations for the 2020-21 school year

Students are facing unprecedented challenges as they acclimate to the new school year, routines, and expectations. When making special education eligibility determinations, IEP teams should consider the impact on students and families of the school building closure, transition to and from remote learning, and other environmental changes. When making an eligibility determination, an IEP team should consider whether a student’s academic challenges existed prior to school closure or emerged as a result of the change to instruction during remote learning and/or environmental factors or personal factors related to the pandemic. Social and academic challenges may not necessarily be indicative of a disability, as they may emerge for many, if not most, students, when in remote learning and/or readjusting to a blended or in-school learning environment. However, the referral process must not be delayed to allow the student to readjust to classroom routines and expectations. Further guidance and considerations for eligibility can be found here.

Referrals and Consent

Guidance on the remote process of referrals can be found here(Open external link).

Fax Bypass is currently available for the following SESIS documents:

Initial Referral

Request for Reevaluation

Social History Package

Prior Notice Package for Placement

Prior Notice Package for Placement/Parentally Placed

Case Closing

Please note that the parent may consent to the initial evaluation or additional assessments by stating in an email that they consent to have their child evaluated. If a parent does not have access to their own email account:

Consent can be received from the student’s email account, as long as the email states that consent is being given by the parent; or

Consent can be received by text message from the parent from a phone number associated with the parent. If consent is received by text, a screenshot of the text received should be forwarded to the DOE staff’s email address and then uploaded to SESIS.

If the parent is unable to provide consent through the student’s email account or by text message, contact your supervisor for support in identifying another available method. When contacting the parent to discuss the referral and consent, if the parent’s preferred language is other than English, ensure that interpretation is provided.

All social history meetings should be conducted remotely regardless of whether the student is engaging in face-to-face instruction.

If the school-based members of the IEP team – in consultation with the family and supervisor of psychologists – have determined that face-to-face assessments are necessary to determine eligibility, the student’s parent must be contacted and informed that the team has made this determination. The face-to-face assessment process must be reviewed with the parent, including the extent to which social distancing and PPE will be used, as well as any concerns about the reliability of the results based on the testing environment. The school members of the IEP team must also address any parent concerns. While no additional consent form is required beyond the consent for an initial evaluation or additional assessments, the school members of the IEP team should seek the parent’s agreement for this mode of assessment to take place. To the greatest extent possible, the social history meeting or the social history update meeting should be utilized to inform parents of the assessment options.

While the referral process must not be delayed, consideration when determining eligibility should be given to the transition to and from remote learning and allowances made for the student to readjust to classroom routines, expectations, and regaining foundational skills. 

Initials and Re-evaluations

For all initial evaluations and reevaluations, the student’s teachers must provide the case manager and parent with relevant, up-to-date information regarding the student’s functioning, performance, and behavior prior to the IEP meeting. [See SOPM page 45 and 53.] This information must include (but is not limited to) the pre-referral teacher form, data, and comprehensive information regarding literacy skills. In addition:

If the student has been served by a literacy coach, IEP teacher, or speech literacy teacher, among others, those teachers should make available information concerning the student’s literacy skills.

Others who deliver additional supplemental instruction (e.g., AIS and RTI providers), and/or student support services (e.g., guidance, counseling, attendance and study skills), should make relevant information available prior to the IEP meeting, regarding the student’s functioning, performance, and behavior.

For reevaluations, the teachers should provide the most recent progress reports if any exist from the last 6 months. They should also report updated information regarding the student’s functioning, performance, and behavior during the period of remote and blended learning.

For initial evaluations and reevaluations for which there are no recent progress reports, each of the student’s teachers should compile relevant information regarding the student’s functioning, performance, and behavior, including up-to-date information regarding the student’s functioning during the period of school closure in addition to using the elementary(Open external link) and middle/high school teacher report (Open external link) form. The school-based members of the IEP team or family worker must notify the teacher(s) at least 15 school days in advance of the IEP meeting that this written information or progress report is required. The teacher(s) should complete the written information or progress report and provide the report to the school-based members of the IEP team and case manager with enough time so that the report can be provided to the parent at least 7 days before the IEP meeting. 

As part of the assessment process, school teams should conduct social history interviews, gather teacher progress reports, and assess students as needed using remote web-based assessment scales and observations of live remote learning sessions to make informed decisions in IEP meetings, in addition to any other assessments that can be conducted remotely as agreed upon by the DOE and UFT.

Considering this information, the school psychologist must submit a comprehensive report, integrating information gathered through assessments and data collection, that describe the student's developmental, learning, behavioral, and other personality characteristics. The CDDA report should be uploaded to SESIS using the psychoeducational assessment template. If a face-to-face assessment is deemed necessary after the completion of a written CDDA, subsequent targeted face-to-face testing should be uploaded to SESIS using the appropriate report template in SESIS. That is, the psychological report template if the targeted assessment is focused on areas of cognition and educational template if the area of focus is academic functioning.

If the clinician determines during this process that additional face-to-face assessments are needed, they should bring this to the attention of their supervisor of school psychologists to explore whether those assessments should occur at this time and to develop a targeted assessment plan. If the targeted face-to-face assessment cannot be completed at this time, create an event in SESIS to indicate the area of targeted assessment(s) needed.

If, at the IEP meeting, there is not sufficient evaluative information to make a program(s) or service(s) recommendation in a traditional, comprehensive manner, the IEP team should determine the student’s eligibility and recommend any programs and/or services that can be appropriately recommended based upon the evaluative information available. Clinicians should consider appropriate classifications based on the evaluative information available. As additional testing becomes available, the team should revisit cases and determine whether the student meets the criteria for the classification that was considered, as well as the modification of services, but for which sufficient data was not available.

The IEP team should also:

Inform all team members (including the parent) that, while recommendations can always be revisited, failing to make recommendations now will delay the provision of appropriate programs and services;

Provide the school with intervention options and strategies that will address the student’s learning, behavioral, physical and/or management needs pending completion of the evaluation.

There may be rare cases in which a student is participating in remote learning and the family declines a face-to-face assessment. At the IEP meeting, the IEP team determines that no appropriate programs or services can be recommended based on the evaluative information available. In those rare cases, the IEP team should not finalize a determination that the student is ineligible. The IEP team must record an event in the SESIS Events Log specifying that there is insufficient evaluative information to make an eligibility determination and that it was not possible to conduct an in-person assessment at this time. The team should provide the school with the intervention options and strategies that will address the student’s learning, behavioral, physical, and/or management needs pending completion of the evaluation process. The case should not be closed. In no case may any DOE staff request or advise that a parent withdraw a referral or consent. Consult with your supervisor if you think it is necessary to take this action.

IEP Meetings

IEP teams should continue to meet remotely. When conducting IEP meetings using an online platform, teams should use Microsoft Teams, Google Meet or Zoom to conduct IEP meetings. These platforms are compliant with FERPA (Family Educational Rights and Privacy Act). 

Microsoft Teams

Clinicians will be able to schedule meetings using their Outlook calendar from Office 365. They will use the Teams meeting toggle to set their location to conduct meetings using the Microsoft Teams Video conferencing. In addition to allowing for video conferencing, Microsoft Teams allows for telephone participation by any IEP team member by also providing a dial-in phone number and PIN for each meeting.

Google Meet

Clinicians will be able to schedule meetings using their DOE Outlook account. They will be able to have video conferences and audio conferences when selecting the “Meet” application. They will find the “Meet” application in the Google waffle grid. Once they select “Meet”, they will be prompted to join or start a meeting. To start the meeting, enter a nickname (name) for the meeting. Then select Continue and Join. The clinicians will have the option to join using a phone for audio. IEP teams will send meeting invites to participants by email once they have been added to the meeting. Google Hangouts Meet creates a dial-in phone number and PIN for each meeting allowing each participant to communicate via phone conference. For security purposes, all video and audio streams in Meet are encrypted.

Zoom

Clinicians will be able to schedule meetings using central account access to Zoom. When using Zoom, all staff and students must use the new DOE central account to access Zoom. All NYCDOE Zoom users will sign onto nycdoe.com.us(Open external link) with their DOE user credentials to be able to use the full complement of Zoom features.

Please visit the Zoom for Remote Learning page to learn more about accessing Zoom, including:

How to access DOE Zoom

How to schedule or join a meeting

Participate in live or prerecorded training

New security settings and instructions for use

Contacts for technical support

The summary of the new agreement between the NYCDOE and Zoom

Details of the original concerns with the Zoom platform

The official NYCDOE press release

The IEP Process

Prior to IEP Meeting

To the greatest extent possible, ensure and maintain the privacy and confidentiality of information, files, and communications. Conduct telephone calls and meetings in a place where confidential information will not be overheard or viewed by individuals who are not involved in the meeting. Use Microsoft Office 365 online tools and approved platforms, which provide appropriate safeguards for maintaining the confidentiality and security of DOE information and records.

Contact parents and schedule meetings at a mutually agreed upon time. If parents require an interpreter, arrange for an interpreter to be present for the meeting, and follow the SOPM with respect to arranging for translation of documents upon request.

Inform all participants that they should be present for the entire duration of the meeting and that they will be actively participating throughout the meeting. 

Contact school principals and administrators if contact information is needed for the required participants. Meetings must not be held without the participation of mandated IEP members. All outreach efforts must be documented in the SESIS Event Log. Document School/Non-Public School/Private School requests to reschedule meetings due to COVID-19 related unavailability by creating an event in SESIS. These meetings will be rescheduled to the extent feasible.

Clinicians with clerical support will oversee that at least 48 hours prior to the meeting, families are contacted to confirm attendance and to ensure that parents have and can utilize the dial-in phone number and PIN for the meetings. For video conferencing, confirm that parents have access to a smartphone/tablet/laptop/desktop computer with webcam and speakers and that parents have video and audio components for the entire duration of the meeting.

Discuss video conferencing and audio conferencing with parents and select the method of the conference with proper consideration given to the parent’s comfort with and access to the necessary technology. Supervisors are currently setting up training for clinicians on how to effectively hold meetings on Microsoft Teams.

Be prepared for IEP meetings. Review all pertinent documentation, evaluations and reports that will be considered during the meetings and ensure that all participants have all pertinent information/ documentation to make appropriate IEP recommendations prior to the IEP meeting. 

Ensure that parents and DOE IEP meeting participants have access to the content of the meeting. Send evaluations and reports that will be considered during the meeting to parents electronically at least 7 days prior to the IEP meeting and inform DOE participants that all pertinent documentation and records are available in SESIS or electronically prior to the IEP meeting. If the parent does not have an email address, ask the parent if they consent to the material sent to them via the student’s email address. If they decline to receive the materials by email, contact your school leadership for assistance in mailing materials to the parent.

Sending special education records to families via email

The parent may elect for special education records to be sent to them by email. During blended or remote learning, you may accept a parent's email requesting materials by email as their consent.

To send a document stored in SESIS to a parent, the user should follow these steps:

Print or save the document as a PDF on the DOE network (Information available in the SESIS Wiki)

Attach the saved PDF to an email to the parent using Outlook in Office 365

Select "Encrypt"

Send to the parent's email address

Special education records include any meeting notices, prior written notices, IEPs, assessments, progress reports, or other material requested by the parent.

**If the user does not have access to the DOE network, the user should save to an encrypted flash drive. If the user does not have an encrypted flash drive, the user may save on their local drive into a private folder. All contents of that private folder should be deleted as soon as the clinician has access to the DOE network.

Best practices for holding remote IEP meetings

To the greatest extent possible control background noise before starting the meeting. Find a quiet location, minimizing external noise, and dedicate uninterrupted time for the duration of the meetings. The space should be quiet and free from distractions (e.g., noises, other conversations, other persons in the space).

Ensure that the background of the location is appropriate and professional for all video conferences. 

Present in the same professional manner as if it were a meeting face-to-face meeting.

Establish the online video conferencing connection several minutes before the meeting start time and test the dial-in phone number and PIN for the meeting before the conference call (15 minutes are recommended).

Holding IEP Meetings

The DOE members of the IEP team must arrange for families, teachers, and/or services providers to participate in the IEP meeting via Microsoft Teams, Google Classrooms, or Zoom. All IEP attendees will be notified 7 days prior to the date of the meeting. SESIS contact information will be used to identify the family's preferred method of remote communication and preferred language. The invitation should include the date, time, phone number, and access code for each meeting. If the parent’s preferred language is other than English, ensure interpretation services are arranged for the IEP meeting.

School staff should share and update Outlook calendars daily to determine availability to facilitate the planning and organization of IEP meetings.

Ensure that all participants can see and hear all other participants. Ask participants to indicate if they are having any difficulties with their video and audio at the start of the meeting. 

Start the meeting by allowing all IEP meeting participants to take turns introducing themselves by name and title.

Ask participants to mute their microphones if their location has background noise and when not speaking. Microsoft Teams and Google Meet support the use of computer audio. If joining a virtual meeting using a cellular phone or landline use *3 to mute the phone and for desk phones use *6. 

Start the meetings by presenting an overview of topics to be covered and planned outcomes. Confirm that all DOE participants and parents have received and have access to the content of the meeting and will share any pertinent documentation that will be considered during the meeting with any DOE participants or parents as needed.

Engage and encourage parent participation and contribution to the discussion, and check for understanding and alignment during the meeting. 

Listen closely and monitor participant’s turn-taking during the meeting to ensure engagement and contribution of all IEP participants.

Indicate IEP meeting participation of participants by phone on the SESIS attendance page. For further guidance see: SESIS Fax/Scan Guidance for School and CSE Staff(Open external link).

For guidance regarding attendance sheets and Initial Placement/ provision of services see here(Open external link)

Interpretation and Translation

The DOE members of the IEP team will arrange for interpretation services at the IEP meetings and translation of special education documents, as necessary. Schools’ language access coordinators can assist in arranging interpretation services during an IEP meeting. For more information about the DOE’s Language Access Plan, including information about interpretation and translation please visit the Translation and Interpretation of InfoHub Page.

Service Recommendation and Implementation

During this period of time, the IEP team should make the same recommendation of special education programs, services, and placement as they would make if the school were in session. If the IEP team believes that different programs/services are needed remotely as a result of the IEP meeting, the school should develop or revise the Special Education Program Adaptations Document (PAD). The PAD along with the student’s schedule, documents how key elements of the student’s special education program will be implemented during the blended/remote learning period. The PAD should be discussed with the family at any IEP meeting and should be revised as needed following that discussion. If there is a change to the IEP recommended special education program, paraprofessional service, or assistive technology, the PAD should be revised to reflect and address the new IEP recommendations. Finalize the IEP before revising the PAD, so that the new IEP recommendations will be auto-populated from the new IEP. For guidance on completing the PAD, please access this training deck(Open external link). For guidance on completing the PAD in SESIS, please access the SESIS step-by-step document. (Open external link) For guidance on completing the PAD, please access Special Education Program Adaptations Document (PAD) for Blended and Remote Learningthis training deck(Open external link), and this PAD Frequently Asked Questions. For guidance on completing the PAD in SESIS, please access the SESIS step-by-step document, The Special Education Program Adaptations Document (PAD)(Open external link)

At the conclusion of the meeting

Prior to the conclusion of the IEP meeting, ensure that families provide IEP teams with a valid email address and agree that special education records, including the IEP, should be sent via email. Teams should make every effort to obtain Consent for Use of Electronic Mail from families during this time, but in the event that the consent cannot be obtained, teams should move forward with the process. At the conclusion of the IEP meeting, if the IEP cannot be immediately finalized and sent to the parent, the DOE members of the IEP team are to provide the parent with a copy of the Recommended Special Education Programs and Services page of the draft IEP from SESIS. This should be emailed to the parent if they have the parent’s agreement to do so. The IEP must be finalized in SESIS and sent, along with the Prior Written Notice, to the parent via email no later than 10 business days after the meeting was held. All efforts must be made to ensure that IEPs are completed within the compliance date. 

If the parent does not have an email address, ask the parent if they would consent to have the material sent to them via the student’s email address. If the parent declines, contact your school leadership for assistance in mailing materials to the parent.

For issues related to SESIS documentation, please see SESIS Guidance during School Building Closure FAQs Working from Home for School and CSE Staff(Open external link).

Prior Written Notice

Guidance can be found here(Open external link)

Placement or Initial Provision of Services

Guidance can be found here(Open external link).

Please note that the parent may consent to special education services by stating in an email that they consent to their child receiving special education services. If a parent does not have access to their own email account, see above for alternatives.

Comparable Service Plan (CSP)

If a student is admitted or readmitted to the NYCDOE and has an IEP from a prior school district, the IEP team may need to create a Comparable Service Plan (CSP). The IEP team should follow the SOPM with respect to the creation of the CSP and opening of the case. The CSP should be provided to the parent via email, with the parent’s agreement. Placement or Initial provision of services will be as per guidance below.

If the parent is unable to provide all the necessary documentation electronically, the team should document all the relevant information provided to them via telephone in SESIS events. The team should also reach out to the previous school/school district to receive the appropriate documentation electronically and to also secure verbal confirmation. If the IEP team is unable to secure sufficient confirmation of previous special education placement/services after contacting the prior school/school district, the parent should be provided with contact information to the Family Welcome Center for General Education admission.

To contact the Family Welcome Centers, click here. (Open external link) 

Manifestation Determination Reviews (MDRs)

When making MDR determinations, the team should consider the impact on the student's disability related to:

The school building closure

Transition to and from remote learning

Other environmental changes during the pandemic

These and other issues can impact a student’s disability and the way that disability may manifest in behaviors, including the behaviors that may lead to disciplinary action. 

At this time, Manifestation Determination Reviews (MDRs) should be held remotely, utilizing one of the platforms specified in the IEP Meetings section above. The following guidelines should be followed when conducting remote MDRs:

MDRs should be held at a mutually agreeable time for families and relevant school staff.

To the extent possible, and with the parent’s consent for electronic communication, provide the parent with any relevant materials in advance of the MDR that will be discussed at the review.

Discuss the platform in advance with the family to ensure that they are able to access the technology to participate in the MDR. If not, the MDR should be held via telephone.

During the MDR, when any documents are being discussed, it is best practice to share the screen so that all participants can review them at the same time.

Control for background noise during the MDR, finding a quiet space that is free from distractions. Ask participants to mute their microphones when not speaking.

Discuss in the same professional manner as if it were an in-person meeting.

Ensure that the parent has the opportunity to participate and contribute in the MDR.

Complete the MDR worksheet as per standard practice.