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The Wall
Street Journal recently broke a story suggesting corruption at the New York State Department of Education, where State Review Officer
Paul Kelly’s impartiality appears to be compromised by his relationship
with his live-in girlfriend Kate Surgalla, an attorney with the Officer of Counsel
of the State Education Department. Or perhaps we should say that Paul Kelly is the live-in, as the home they reside
in together is listed in Surgalla’s name. Paul Kelly, the State Review Officer, is supposed to be an independent
and impartial review officer who decides the fate of special education children. Yet statistics on his recent decisions
in these matters suggest something else is occurring. Kelly regularly rules in favor of school districts. Jeff
Marcus, an attorney in Williamsville, NY, compiled the following:
“From the beginning of 2006 to present, of the cases that were appealed to the State Review Office, parents prevailed
on 43 cases at impartial hearing. Of those 43 cases, the State Review Office reversed in favor of the school district 36 times.
Of the remaining 7 cases, the district partially prevailed on 2 of them, leaving only 5 cases in which the State Review Office
affirmed a ruling in favor of the parents. 14 out of the last 15 decisions in favor of parents have been reversed by the SRO.
The last 19 SRO decisions have favored the district. 37 out of the last 39 SRO decisions have favored the district completely
and one of the remaining 2 favored the district in part. Out of the last 47 SRO decisions, 43 favored the district completely,
only one favored the parents completely, one the parent prevailed in part, one was remanded for further proceedings and one
the parent's petition was dismissed without prejudice. Bottom line, out of the last 47 SRO decisions, the parents have only
prevailed once in whole and once in part.
Of cases in which the district prevailed at hearing, there has been only
one partial reversal in favor of the parent in the last 52 cases. One must go back 73 decisions to get to a case in which
the parent prevailed significantly on appeal to the SRO in a case in which the district prevailed at hearing.”
An article in the New York Sun on Wednesday, July 25th, indicates that Kelly’s ethics have been called into question, as lawyers
have left his office concerned that his conduct violated the law. Staff members indicated that as many as ten lawyers
left Kelly’s office recently, due to his unethical conduct.
Hearing officers, whose decisions on special education cases are appealed to Kelly have voiced their concerns over
his review of their decisions. Lynn Almeley is reported to have said that Kelly’s decisions are “very tortured
reasoning to arrive at a predetermined conclusion,” reported the Sun’s Elizabeth
Green. Hearing Officer John Farago reportedly is attempting to orchestrate a vote of no confidence among the hearing
officers against Kelly.
Kelly’s agenda appears to be protecting school districts from the costs of special education programs and protecting
school districts from having to pay the parents’ attorney fees when parents prevail in special education matter. An
attorney who has worked with Kelly quoted him as saying, “Reimbursement was
not meant for poor kids.” This is a reference to the parents of children who seek reimbursement for private
schools when the public schools fail to offer appropriate services. Kelly is also reported to be opposed to parents
who attempt to mainstream their disabled children, and has referred to these parents in a derogatory manner as “inclusionistas.”
Andrew Cuddy, a special education attorney for parents and author of The Special Education Battlefield, requested the state attorney general, Andrew Cuomo, to investigate this situation. He believes that the actions
of those involved in these events may rise to the level of a criminal conspiracy to deprive disabled children of their civil
rights. Other complaints have already been registered by the New York State Office of Investigations and the Office
of the Inspector General of the U.S. Department of Education.
One has to wonder where these investigations will lead? Certainly, these attorneys that worked with Kelly must
be interviewed and convinced to speak openly about the shenanigans at the State Education Department. We suggest that
these investigators talk to Amy Vanden Broeke, who reportedly has been outspoken
about Kelly’s agenda and conduct. Is it true that Kelly has misrepresented quotations from transcripts and evaluations
in the decisions he has rendered? Is it true that he stated he intends to prevent parents’ attorneys from recovering
fees in order to “shut down” those attorneys whose names he frequently sees? Is it true Kelly stated he
is ruling against parents because “the Office of Counsel says”?
These investigations should also include an interview with Laurel Bohl.
Ms. Bohl is now an attorney working in Andrew Cuomo’s office. Did Ms. Bohl leave Kelly’s office because
she felt his conduct was so outrageous that it would cause her to loose her license to practice law if she participated in
it? Is it true that she left the office in tears fearing that his actions would cause injury to a child? Is it
true that before leaving the office she secured documentation damaging to Kelly? Has she already provided this information
to Cuomo’s office where she is now employed?
James Whitney is an honorable man who
managed the Office of State Review prior to Kelly’s takeover. (The scuttlebutt is that Surgalla orchestrated her boyfriend’s
appointment.) Whitney has been outspoken in the office against Kelly’s agenda, and as a result was relegated to
a back room. What does Whitney know of the violations of law that occurred at Kelly’s command? Has Kelly
really announced his intent to violate parents’ rights to due process? Has Kelly really ridiculed Whitney and
told him that he could render decisions in any manner he chose, as he was “exercising his discretion?” Was
Whitney relegated to the sidelines in the office because of his integrity and because Kelly did not want an honest witness
to this scandal? As Whitney nears retirement, has he taken steps to remedy this situation and bring the scandal to the
attention of the proper investigatory authorities in order to protect his own reputation for integrity?
Schoolwatch has a number of sources on this story, and there will be more to follow. We will keep you posted as this
story develops. Stay tuned…
More…
Is
State Review Officer Paul Kelly under investigation for abusing his staff?
Schoolwatch has learned that State Review Officer Paul Kelly is under
investigation by the Public Employees Federation as a result of inappropriate conduct toward staff. A senior investigator
from PEF is leading the investigation. The PEF office would not release details of the complaints made against Kelly. It
is unknown whether the PEF investigation into Kelly’s conduct is linked to the allegations forwarded to Attorney General
Andrew Cuomo. The PEF investigation is focusing on Kelly’s inappropriate behaviors with or toward subordinate staff. The
question remains whether the allegations being investigated by PEF are related to the other allegations in some way, or are
of a sexual nature.
The State Review Officer is responsible for deciding the appeals from Impartial Hearing Officers’
decisions on disputes over special education programming. Kelly has come under fire as he rarely finds in favor of parents
in these disputes, and former staff members have complained that he has an agenda that has been dictated by the State Education
Department. Kelly is required by law to be impartial and independent, and not take directives from the State Education
Department. Reports from inside his office indicate that Kelly has been anything but independent in his conduct as the
State Review Officer. One must wonder if his paramour, Kate Surgalla, an attorney with the SED, may also involved in
these shenanigans.
SchoolWatch has learned that the Office of State
Review has had a turnover rate four times higher than other State Education Department Offices. Individuals that have
left that office voluntarily blame Kelly’s behavior for their departures. Obviously, the State Review Office story
will continue to unfold.
Schoolwatch will
be keeping you informed about this story. Stay tuned...
More... 7-28-07
DOES STATE REVIEW OFFICER PAUL KELLY VALUE THE LIVES OF SPECIAL EDUCATION CHILDREN,
OR ARE HIS INTERESTS SOLELY ON PROTECTING SCHOOL DISTRICTS FROM FINANCIAL CLAIMS?
The State Review Officer, Paul Kelly, is in the heat of a controversy and multiple parties are questioning
his independence and impartiality. As the State Review Officer, Kelly is required
to review the decisions of Impartial Hearing Officers that are appealed to his office addressing the needs of special education
students. The law requires that his office be operated independently and with
impartiality. The Wall Street Journal
named Kelly in a story on July 24, 2007, breaking the news that Kelly lives with a senior attorney of the State Education
Department, suggesting this compromises his independence from the State Education Department. Staff
members working under Kelly have anonymous reported to both the WSJ and the New York Sun that Kelly has an agenda aimed at protecting school districts from the
cost of the services these children need.
SchoolWatch
has uncovered cases that Kelly has overturned regarding students with disabilities
that indicate he has little regard for their safety or lives. In a case in the
Allegany-Limestone Central
School District, the parents complained of the unsafe restraints being
employed against their child with autism. Dr. John Miller and his wife Carole
expressed their continuous objection to the inhumane and dangerous conduct of untrained staff against their child in middle
school. Impartial Hearing Officer Joan Alexander heard the matter and ruled largely
in favor of the parents.
“The parents proved that District staff members were trained in prone physical restraints on
and after 04/26/05, and that they engaged in at least six prone restraints before that date.
Furthermore, all of the prone restraints involved the student being face down rather than face to the side, which is
entirely inappropriate.”
“I agree with the parents that the IEP has never authorized use of physical restraints and that
the student's clinicians have recommended against it, and instead advised use of a "safe" room. This matter is capable of repetition and, therefore, is not moot.”
“Between 03/18/05 and 06/02/05, the student was physically
restrained at the middle school on approximately ten occasions, and each of the restraints involved two or three middle school
staff members holding the student prone and face down (rather than face on its side) on a mat.”
“The mother testified that the physical restraints had a severe negative effect on the student
and resulted in, among other things, teeth grinding and nightmares. The parents
arranged for counseling for the student and themselves to help the student work through the problems that arose because of
the restraints. The student was still upset about the restraints in 01/06.”
Repeatedly throughout her decision, the IHO identified misrepresentations and inconsistencies in the
evidence of the District.
“NOTE: By
email dated 10/19/05, the District superintendent denied that staff ever used a two-person prone restraint on the student
and forbid its future use. Said email contradicted the testimony of the student's
sped teacher, the student's counselor and the middle school principal.”
“Said letter and the School Psychologist's 2003 evaluation show that the CSE Chair was aware
of the student's Autism spectrum diagnosis as of 2003, despite her testimony
that she was unaware of it until the spring of 2005.”
IHO Alexander emphasized that the District failed to comply with the recommendations of the child’s physician
or the wishes of the parents. She pointed out that the District actions “(1)
caused the behaviors to escalate and (2) endangered the student.” [Bold
added]
The IHO concluded:
“The District has maintained that its actions were appropriate. I disagree. In light of the District’s position, the appropriateness of the restraints is neither “academic”
nor moot. These same unrepentant individuals might again engage in this same
misconduct! Fortunately, the student's negative behaviors have become sporadic. Nevertheless, the following are all “capable of repetition": the impropriety
of the physical restraints employed during 2005; the inappropriate delay in developing the FBA and BIP; the inadequacy of
the FBA in that, among other things, antecedents to negative behaviors were not identified and the parents' participation
was limited; and the District's denial of parents' requests to halt the 2 - person prone physical restraints.”
Kelly dismissed the parents’ concerns, suggesting that the District that had repeatedly provided
false testimony and lied to the parents and the hearing officer should not be held accountable for the conduct. Kelly said:
“Petitioner [the District] argues that the impartial
hearing officer should not have made a determination on respondents' claim regarding physical intervention techniques because
it will have no actual impact on the parties. Under the circumstance presented in this appeal, I agree.” State Review Officer Decision 07-028.
Other hearing officers have expressed their outrage with Kelly and his handling of the IHO decisions
that come before him. John Farago, a special education law professor and part-time
hearing officer stated Kelly is “rewriting the rule book,” according to Dan Golden, the WSJ reporter. Another IHO Lynn Almeleh called Mr. Kelly's decisions
"a very tortured reasoning to arrive at a predetermined conclusion." There is
scuttlebutt that the 300 hearing officers in New York State are attempting to orchestrate a “no confidence” vote in the performance
of Kelly.
Kelly and his paramour Surgalla have declined comment, and when SchoolWatch attempted to reach them on Friday, July
27, we were told that they were out of town. It is a frequent occurrence that
when scandals break in education stories that those involved “leave town.”
The public should know that the spokesperson referred to in the WSJ, Kathy
A. Ahearn is the stand-in Commissioner as Dick Mills is out on a medical leave for prostate treatment. Ahearn however, is Kate Surgalla’s immediate supervisor in the Office of Counsel, the office that
is linked in this scandal as being involved in compromising Kelly’s independence and dictating his agenda. Could Ms.
Ahearn be covering for her own involvement in this scandal?
SchoolWatch is investigating further the decisions of Paul Kelly. It is obvious in reviewing the Limestone-Allegany CSD matter that Kelly values little
the safety of our children with disabilities. It is also apparent that no matter
what lies that District staff tell parents and Impartial Hearing Officers, Kelly will find some twisted reasoning to protect
the District at the expense of the disabled child.
Be certain that SchoolWatch is on top of this matter, and will be reporting further. The contact information for the Millers is available through SchoolWatch, and they are more than willing to share their
story with the press. The decision of Kelly is being appealed to the U.S. District
Court of the Western District of New York.
More... 7-30-07
It has been
reported to SchoolWatch that Paul Kelly, the State Review Officer who is being investigated by multiple
public and private agencies regarding his handling of the claims of the parents of special education children, has added a
new member to his staff.
Attorney Bethany Mattone was hired this past week to a position where she will be reviewing the work of other
attorneys in the office and “editing” the drafts of decisions that they prepare.
Previously, this was a task that Kelly engaged in directly, where he reportedly changed the outcomes of these drafts
in order to protect schools from incurring the financial costs of services for the children.
Ms. Mattone will be “supervising” the work of the other attorneys in the office.
Attorneys that were in the office
prior to Kelly’s appointment seem to have been driven from their positions by Kelly for speaking out against his agenda. One must wonder about the appointments that Kelly himself is making. Are they hired to support his agenda? Must they express a
willingness to participate in his office shenanigans that put children in danger? Is
these individuals highly qualified attorneys capable of the legal analysis that special education matters require?
SchoolWatch has developed some information regarding Ms. Mattone.
She is a graduate of SUNY at Stonybrook, attended Brooklyn Law School . She was admitted to
practice in 2004. Her first job as an attorney was working for the New York City
Department of Education handling special education matters. (Wow, if there is
one district intent on denying children appropriate services, it is NYC!) It is not surprising that someone who reportedly
stated “reimbursement was not meant for poor children” would be hiring attorneys from the NYCDOE.
Indications from the attorneys inside
Kelly’s office are that they are outraged. Some of the attorneys that were
in the office prior to Kelly have been admitted to practicing law for over 14 years.
Ms. Mattone’s only has two years of experience which is limited to representing the worst special education school
district in the state. And Mattone is being hired to supervise them? Wow! Is this the formula for more departures from the office? It appears that is Kelly’s desire -- cause all those that are resisting his
agenda to leave and replace them with inexperience, impotent minions that will comply with his dictates without objection.
One has to wonder if Ms. Mattone was
the best selection for Kelly in carrying out his agenda. Sure, she is a petite
young girl, naïve perhaps in the ways of the world, who Kelly might have seen as one easy to manipulate to cooperate in his
brazen agenda. Perhaps he imagines the wiles of an older man could seduce her
to his will. But Ms. Mattone is also known on a personal level to be something
of a compassionate individual. She is known to listen to NPR, to meditate, to
be something of an artist. Can an individual like Kelly bring an individual like
Mattone to heel? Or might she too join the outspoken attorneys in the office
that are rebelling against the agenda of the NYSED that Kelly is carrying out.
Ms. Mattone has some of her writing
posted on-line. She spends a great deal of her time engaged in introspection. She wrote:
“I realize now that the
fact that I just can't understand those who voted for Bush is based in a fundamental misunderstanding in what it is I believe
this society should be. So, it's time to get back to that--define it, narrow it down, and hopefully, be better able to convey
it in another 4 years, when--how lucky is this--we get another chance!”
-Bethany Mattone
It will be extremely interesting
to watch Ms. Mattone define, narrow down, and convey what her fundamental understanding of what this society should be as
she performs her duties at the Office of State Review. Will she conform to the
views that the NYSED administration apparently has regarding the needs and rights of disabled students? Or will Ms. Mattone’s introspection cause her to be one of those voices of opposition crying out
about the injustice that the office is meting out? Is it possible for Ms. Mattone
to be seduced into conforming her view of society to the view of Kelly, which disregards the law, disregards due process,
and disregards the needs and safety of the disabled? Stay
tuned as SchoolWatch continues to investigate and report on this matter...
More Evidence of Kelly’s
Indifference to the Safety of Children with Disabilities?
SchoolWatch is continuing its investigation into the shenanigans at the Office of State Review. We have just recently been able to obtain a copy of the underlying decision of Impartial Hearing Officer
Aaron Turetsky, which was overturned by Paul Kelly in State Review Officer Decision 07-047.
The hearing largely focused on the services being provided to a child with cerebral palsy and whether those services
were being provided by qualified and competent staff. IHO Turetsky found that
the aide for the student was a danger to the child. Turetsky wrote:
“I find the entirety of her testimony unworthy of belief and further find that provision
of services by her would endanger the student. Based upon the foregoing, it is hereby
ORDERED that school district shall not provide the student with the services of the monitor or
aide who was assigned to the student in September and October of 2005…”
[SchoolWatch providing the emphasis.]
What
did Kelly do to address the danger posed by this aide to the student? Read on.
The parents in the proceeding sought services by a properly trained one-to-one aide.
The IHO determined that the aide was not qualified to provide services to the student, and was not truthful during
the hearing. In fact, he found that this aide as the service provider would “endanger
the student.” In its appeal to the State Review Officer the District indicated
its desire to continue to use the aide.
“Petitioner
appeals and requests an annulment of that portion of the impartial hearing officer's decision which found that the provision
of services by petitioner's aide would endanger the child and ordered petitioner not to provide the child with her services.
Petitioner argues that the aide is qualified and trained to serve as the child's one-to-one aide, and in the event that the child returns to petitioner's elementary school, she will continue to receive additional
training on a frequent and ongoing basis. [SchoolWatch providing the emphasis.]
Kelly
dismisses the parents’ claim because the hearing continued past the end of the school year, with a specious suggestion
that the matter is moot, even in the face of the District’s expressed intentions of continuing the services with this
same individual!
Oh, and Kelly does not finish there. He chastises these concerned parents
as if he was bothered to have to hear this issue.
“Lastly,
the crux of respondents' concerns at the impartial hearing focused on the propriety of petitioner's staff assignments and
training. If future disputes arise despite the previously mentioned new evaluations and IEP, I remind respondents of the availability
of mediation (8 NYCRR 200.5[h]) and the state complaint procedures of the Regulations of the Commissioner of Education (8
NYCRR 200.5[l]) as alternative dispute resolution procedures which may also address IEP implementation issues.”
Parents
employ the requests for due process because these alternatives he suggests are widely known to be impotent. The State Education Department does little or nothing when parents bring complaints before it. Mediations are seldom successful and only cause delay to the child’s programming and cause the parents
additional expense for the assistance of an attorney. Now that the SED has its puppet Paul Kelly carrying out their agenda
in the Office of State Review, parents will have only one option, proceed through this sham of an administrative proceeding
and then bring the matter to court.
As parents, we in New York must express our outrage.
SchoolWatch encourages each of you to take the
time to write the Attorney General Andrew Cuomo and your State representatives. Express
your concern over this situation. We believe that this is nothing less than a
criminal conspiracy intended to deprive children of the free, appropriate public education to which they are entitled, and
intended to interfere and deprive parents of their due process rights.
SchoolWatch will
continue its reporting on this situation, stay tuned…
More 8-28-07
…
Could Kelly
be any more obvious in his unwillingness to ensure that children with disabilities in NY State receive a FAPE than to deny
them goals and objectives that address all the areas of need and are meaningful and measurable? SchoolWatch analyzes
State Review Officer Decision 06-052 in which Kelly ignores the fact that the district’s IEP did not address the child’s
needs – AND STATES IT RIGHT IN HIS DECISION!
Our “esteemed”
State Review Office, in his efforts to discourage parents from pursuing a FAPE for their child, created a decision upon which
districts can rely in defending the indefensible – denial of meaningful and measurable goals and objectives that address
the child’s unique needs. It is common knowledge in the special education community that an Individual Education
Plan for a child is developed after the child’s needs are determined by comprehensive evaluations of those needs.
Once the needs are identified, goals and objectives are included in the IEP so that the child’s progress can be measured
and parents can be informed of progress, or lack of progress. Addressing the needs of the child is the PURPOSE of the
IEP.
Apparently, part
of Kelly’s agenda is to undermine the child’s right to have these needs addressed. In a Niskayuna
Central School District case,
which the parent won before the impartial hearing officer, Kelly overturned the IHO decision by blatantly ignoring the law
and even had the audacity to state this in the decision! Why would he be so reckless as to brazenly include in a decision
his unwillingness to uphold the special education regulations? It is clear, and has been reported, that Kelly has an
agenda of creating a pattern of decision intended to discourage parents and advocates from pursuing claims. By posting
a decision on the State Education Department website, those advocating for children will be discouraged from pursuing claims
regarding missing or deficient goals and objectives. As nearly every special education case involves the appropriateness
of the goals and objectives on an IEP, nearly every parent’s case is impacted by this decision. A posted decision
such as this also emboldens districts to approach goals and objectives in a half-assed manner, knowing that they will not
be held accountable at the SRO level. And if goals and objectives are rendered meaningless in New York, so to is every report made to parents regarding their child’s progress.
In fact, by eliminating any meaningful tracking of progress, District’s can win every hearing just be making oral and
unsupported claims of progress.
Susan T. Johns
represented the School District in this matter. Ms. Johns is from a Syracuse
law firm, which just happens to be in the same town that Kelly resided in before he shacked up with his paramour in Albany. We are currently looking into whether any personal relationship
existed between Kelly and Johns while he resided in Syracuse.
SRO decision
06-052 involved a 12 year old child whose parent believed he was not receiving a FAPE from Niskayuna.
The child needed a program that addressed the needs of students that were "socially unskilled" and who need support, structure
and stability. The child’s many diagnoses include an attention deficit hyperactivity disorder (ADHD)-combined
type, Post Traumatic Stress Disorder (PTSD), and Reactive Attachment Disorder (RAD). The private psychologist of the
student reported that the student was competitive, aggressive, and at times violent at home. She also reported the student
exhibited a sleep disorder. There was a history of psychiatric commitments of the student. It was recommended that the student be placed in a smaller, more self-contained classroom or day treatment program "where
he could receive the level of psychotherapeutic services he needs in an integrated manner." It was recommended by that
the student’s psychologist that the student be placed in a small group setting with staff trained in addressing mental
heath problems and trained teachers. She opined that a regular public school environment with supports could not meet
his needs at that time, and recommended that the student be placed in a day treatment setting. The student's psychiatrist
stated that, because of the complexity of his psychiatric condition and multiple changes in his medication, the student needed
a psychoeducational focus with therapeutic interventions in his program.
The parent requested that her son be placed in a therapeutic day program. The CSE recommended that the child
remain in the public school with minimal supports and no therapeutic component. The program was neither a small self-contained
nor a day treatment program. The psychiatrist for the student again stated the student needed a small, full-time self-contained
classroom with a high teacher to student ratio or a day treatment program as recommended by the independent psychological
evaluation report, but the District only provided minimal support with regular education classes for Social Studies, Science,
English, Math, Spanish, Art and Physical Education with the support of a teaching assistant.
In a decision dated April 17, 2006, the impartial
hearing officer determined that that petitioner failed to recommend an appropriate placement for the student for the 2004-05
and 2005-06 school years, that HCS was an appropriate placement, and that equitable considerations supported an award of tuition
reimbursement. Specifically, the impartial hearing officer found that the IEPs for the 2004-05 and 2005-06 school years
failed to include testing results, failed to identify the student's needs and how to address them, and failed to include
an adequate behavioral intervention plan or sufficient goals. He further held that petitioner's recommendation was predetermined
prior to a May 2004 CSE meeting. He concluded that petitioner's recommendation was not appropriate because it was not
a small, self-contained structured environment. The impartial hearing officer awarded tuition reimbursement at HCS
for the portion of the 2004-05 school year in which the student attended HCS, as well as for the 2005-06 school year, and
also awarded the expenses of sending the student to HCS.
In this case, Kelly outlines how the child is regressing behaviorally, emotionally and socially. He focuses entirely
on the child having passed academic courses. We all know however, that special education is required to address the
social/emotional, management, physical and academic needs of the child. Kelly apparently wants to ignore those other
components. In this case, the child’s program was so inadequate to address those social and emotional issues that
the child’s classification had to be changed from Other Health Impairment to Emotional Disturbance! The issues
surrounding this change of classification alone should be evidence of a program not meeting the child’s needs.
Kelly goes on to state the standard:
“An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to
identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and
provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No.
04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability,
Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must include
a statement of the student's present levels of educational performance, including a description of how the student's disability
affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).
School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests,
diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas
of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
An IEP must also include a statement of the special education and related services and supplementary aids and services
to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school
personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]). Such
education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her
annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]).”
But then Kelly goes on to render that language meaningless by stating that a district can ignore some of the child’s
needs, have in place unclear goals and objectives, and not have any meaningful means of reporting progress to the parents.
In fact, it appears that reports of progress, in Kelly’s mind, can be made in hearing rather than in writing to the
parents at regular and timely intervals. Here is Kelly’s language that ignores the regulatory requirements of
goals and objecting, ignores the requirement to report progress to the parents, and substitutes hearing testimony for the
requirement of regular reports that parents are entitled to under the law.
“The written
IEPs in question do contain certain deficits, although under the circumstances of this case, I do not find that these
deficits rise to the level of a denial of FAPE. Upon review of the IEPs and supporting information in the record, I
find that the IEPs contain sufficient information to allow for measurement of progress in most of the student's areas of
need. Those goals and objectives, which lack clarity and specificity, are supported in part by testimony
and by narrative progress reports. The inadequacies in the goals and objectives do not rise to the level of requiring
a conclusion that the child was not offered a FAPE; however, I strongly encourage petitioner to ensure that all service providers
work to develop more specific language for describing measurement criteria for IEP goals and objectives.
Oh, parents,
keep in mind, that with this SRO, the penalty for a district not addressing all of the identified needs of the child and only
reporting progress to parents during the hearing is the “heavy handed” admonishment of Mr. Kelly – no reimbursement
for you!
In this matter,
the IHO is the trier of fact. He is the one, who in our legal system, determines the credibility of witnesses. Over
and over again, this IHO determined the District witnesses not to be credible. Kelly, the reviewing authority, oversteps
his role and substitutes his judgment regarding credibility for the judgment of the IHO. This is a “foul”
and Kelly knows it, but he is acting knowing that he is only accountable to the Commissioner and the paramour that secured
him this job and that is pulling his strings.
All those concerned
with the rights children with disabilities need to contact Attorney General Andrew Cuomo, in writing, and demand a full investigation
into what we believe is criminal activity at the Office of State Review that is intended to deprive children of their civil
rights. Please take the time to write the Attorney General today.
Stay tuned as SchoolWatch continues to investigate and report on this matter...
More 8-30-07…
My, my, my. Could there be any stronger evidence of corruption
in the Office of State Review than the recent shift of decisions in favor of parents?
As reported previously
by SchoolWatch, prior to the Wall Street
Journal’s breaking story about the “Pillow Talk Scandal” at the Office of State Review, the chances
of a parent prevailing in a hearing were almost non-existent. However, a recent
analysis of decisions since the WSJ article of July 25th shows a decided
shift in decisions favoring parents.
There have been
fourteen decisions rendered by Paul Kelly since July 25th. Of those
fourteen, five are clearly issues of procedure only (not taking an appeal within the regulatory time frame, or remanding a
matter for a hearing which an IHO had denied to the parent). Of the remaining
nine cases, here is the breakdown.
At the IHO level
At the SRO level
Parent prevailed.
Kelly upheld, in favor of Parent.
Parent prevailed,
mostly.
Kelly upheld, mostly, in favor of Parent.
District prevailed.
Kelly overturned in favor of Parent.
District prevailed.
Kelly overturned, in part, in favor of Parent.
District prevailed.
Kelly overturned in favor of Parent.
Parent prevailed.
Kelly upheld in favor of Parent.
District prevailed.
Kelly overturned in favor of Parent.
District prevailed.
Kelly upheld in favor of District.
Parent prevailed.
Kelly upheld in favor of Parent.
Does Kelly really
believe that by “balancing” the numbers he can undo the injustice that he had brought down on disabled children
and their families in past years? Does he really think that this sudden shift
in decisions in favor of parents was going to go unnoticed? Of course, the fact that such an obvious shift has occurred is
really just further evidence that there is corruption. Have any of those corrupt
individuals been brought to justice? Of course not. They remain in power and as soon as the “broo-ha-ha” calms down those same individuals that
robbed children of FAPE in the past will be at it again, but perhaps with a more careful approach intended to avoid scrutiny.
SchoolWatch also wants to point out to its readers that the one case that Kelly decided to rule against parents
on was one in which the parents were represented by Andrew Cuddy. Cuddy is the
guy who was quoted in both the WSJ and NY
Sun articles that exposed this story, and as a result made a complaint to the Attorney General asking for a criminal investigation.
Kind of odd that when Kelly determines to issue decisions in favor of parents that the one decision not in favor of the parents
is the one handled by Cuddy, isn’t it? How transparent can Kelly be in
his actions? SchoolWatch called Cuddy
to bring this to his attention. Of course, he was already aware. He pointed out
that the most outrageous thing about this was that Kelly’s decision left the child in a residential program, which the
residential program staff were saying was, “unsafe” for the child. Because
of Kelly’s determination, the child remands at home while the litigation continues, as the parents are not going to
return the child to an unsafe environment. The District involved, Mexico Central School District, refuses to provide alternative services during pendency and insists
the child return to the unsafe program. Cuddy described the administration in
Mexico as “only caring about the
child being sent as far away as possible from the district, and not caring at all about appropriate programming or even safety.” Mexico CSD is represented by Susan T. Johns, Esq.
The
State Review Office scandal continues. Stay tuned! SchoolWatch
will keep you informed...
More 9-01-07…
Let’s take a look at how Kelly
is undermining the Individuals with Disabilities Education Improvement Act (IDEIA), to the detriment of our kids.
When the IDEIA came into effect in July of
2005, one of the key components of that Act, intended to improve educational outcomes for children with disabilities, was
addressing the issue of methodologies. Methodologies have long been a heated
area of debate and litigation. These methodological issues affect kids with all
types of disabilities, but most frequently involve children on the Autism Spectrum or kids with Reading Disabilities. There is a great deal of research regarding the different methodologies that have
been proven through scientific research to work with particular types of children.
The IDEIA created a right for children with
disabilities to receive instruction that was based on scientifically based research. [Section 1411(e)(2)(C)] In fact, the IDEIA requires that the IEP include “a statement of the special education and related
services and supplemental aids and services, based on peer-reviewed research to the extent practicable, to be provided
to the child.” [Section 1414(d)(1)(A)(i)(IV)] Prior to the reauthorization,
our NY State Education Department issued a memorandum to districts stating that it was not necessary to include methodologies
on the IEP. Yet, the IDEIA specifically states that they are to be included. The memorandum has not been retracted by the NYSED (the office of Kate Surgalla, by
the way), or addressed further. Kelly has addressed this issue in a number of
his decisions, basically stripping parents and students of that right to those methodologies in New York State
What is a district’s motivation in not
providing a particular methodology to a child? Methodologies require staff to
be trained in the methodology. Some of this training is time consuming, and therefore,
expensive. Some of these methodologies must be employed on a 1:1 basis or in
very small groups. This can cause a district to need additional staffing, and
therefore causes expense. Nearly all of these methodologies require tracking
of data on a regular basis. This allows parents to find out whether their child
is or is not making progress. This allows parents to hold districts accountable
when no progress is being obtained. This is probably the biggest motivation for
districts to resist or refuse to provide an appropriate methodology for a child –- they do not want to be held accountable
for the implementation of the program.
What is Kelly’s motivation in undermining
the IDEIA and its expressed mandate that “peer reviewed” services be provided to a student to the “maximum
extent practicable?” Obviously, the agenda of Kelly is to save school districts
the cost of providing appropriate services at the expense of these families. It
also allows for districts not to be held accountable for any of the failures that result from the deprivation of services,
as there will be no evidence of the child’s progress or lack thereof. [See
our previous report how Kelly undermines the reports of progress to parents by allowing districts to cover themselves simply
with statements of progress at a due process hearing, meaningless goals and objectives, and vague reports regarding progress. Kelly’s decisions allow Districts to deprive parents of the reports of progress
mandated in the regulations.]
Let’s take a look at a couple of the
recent decision of Kelly.
In SRO decision 07-065 the CSE removed references
to verbal behavior ABA as the instructional methodology and
did not refer to a specific instructional methodology in the child's 2006-07 IEP. (Note,
in this case the methodology was being provided in the pre-school program, which is a program funded by the County. As soon as the District is required to fund the service, it is removed.)
The Parents presented evidence from experts
that the child required verbal behavior ABA as an instructional
methodology and that he made progress using this approach. The district staff,
who had no experience working with the child, maintained that the inclusion of a specific instructional methodology on the
child's IEP would "tie our clinical hands" and respondent "wanted [the child's teachers] to be able to utilize other methodologies
if they felt that those would be appropriate." Another extreme problem with the
District’s approach, which Kelly adopted, is that it completely eliminates parents from participation in this decision-making
regarding methodologies. Kelly does not mind diminishing parent participation
in the due process proceedings, however, and seems to consider them something of an inconvenience. [See the prior report of Kelly referring to parents seeking mainstreaming opportunities for their children
as “inclusionistas.”]
Consider the twisted reasoning of Kelly in
this decision, where he notes that the evidence
“…supported the conclusion that
their son received educational benefit and made progress through the use of verbal behavior ABA instruction, the evidence did not support the conclusion that it was the "only" way the
child could learn.”
So rather than correcting this situation by
directing the District to identify what other methodologies they intended to use with the child, instead he allows the District
not to include any methodology. This completely cuts the parents out of the educational
decision-making process and provides them no notice of what the District intends to use with their child. The end result – no accountability for the District – Kelly’s agenda. What other methodologies
might be used? Seclusion? Rifton chair restraints? Shock treatment? Yes, this may sound a little extreme, but all of these things have been used and justified by educators
as appropriate methodologies. One must be suspicious of a District that is excluding
a parent from participating in the decision-making regarding methodologies. What
are they going to use. In this case, the District never identified to the parent
the other methodologies they hoped to employ when Kelly allowed their “hands to be untied.”
Part of this decision by Kelly may be evidence
of his general incompetence – although we know there is an agenda at work. Check
out this excerpt from the decision:
“Although an IEP must provide for specialized instruction
in the child's areas of need, a CSE is not required to specify methodology on an IEP and the precise teaching methodology
to be used by a child's teacher is generally a matter to be left to the teacher (Application of a Child with a Disability,
Appeal No. 07-054; Application of a Child with a Disability, Appeal No. 07-052; Application of a Child with a Disability,
Appeal No. 06-022; Application of a Child with a Disability, Appeal No. 05-053; Application of a Child with a Disability,
Appeal No. 94-26; Application of a Child with a Disability, Appeal No. 93-46; Matter of a Handicapped Child,
23 Ed. Dept. Rep. 269. The impartial hearing
officer applied the proper legal analysis in determining whether the child was offered a FAPE and whether respondent was required
to include a specific instructional methodology on the child's 2006-07 IEP.”
Here Kelly concludes that the IHO applied the
proper legal analysis in determining whether the methodology needed to be included in the IEP!
Take a look at where that string of decisions starts. 1993! And all of those decisions referred to after the IDEIA became effective are Kelly’s decisions that
also rely on pre-IDEIA cases! Kelly is completely ignoring the re-authorization
that mandates that the IEP include a statement of the services that are based on peer-reviewed research. A lawyer presenting legal arguments in this disingenuous manner in Federal Court may end up being sanctions. Of course, Kelly is only accountable to those that appointed him and appears free
to carry out his agenda unhampered. [Of course that may change with the number
of investigations that have been started or as a result of a parent(s) initiated law suit.
Perhaps having Kelly’s “hands tied” with handcuffs will help right the NYSED ship.]
SRO Decision 07-052 is another methodology case. Again, the professionals who evaluated and worked with the child made numerous recommendations regarding
the child's educational program. These included maintaining a program and therapies similar to the child's preschool program
as he transitioned to kindergarten; providing the child with 1:1 instruction using ABA and discrete trial teaching; providing
the child instruction using a verbal behavior approach; and incorporating a picture exchange communication system (PECS),
visual schedules, and sensory diet activities into the child's daily program.
The District even recognized in the child's
IEP that he required instruction using a verbal behavior ABA
approach. Yet the District refused to provide for that need, and removed the ABA
methodology that the CPSE had recommended for the child.
When the parents initiated a hearing, they
even brought to Kelly’s attention the new regulatory requirement that the IEP include a statement of the "[s]cientific
[r]esearch [b]ased instructional practices based on peer reviewed research" that were to be employed. Specifically, the parents
demanded that the child's IEP reflect verbal behavior ABA,
which includes a discrete trial teaching component, as the appropriate teaching methodology for the child. The parents also
requested that the IEP include parent training [which is mandated in an IEP of a child with autism under Part 200.13 of the
Regulations of the Commissioner of Education], staff training [which is necessary to provide particular methodologies] and
other things. Kelly did not even direct the District to provide the services mandated in the Regulations for a child with
autism. [SchoolWatch will analyze
how Kelly ignores or misapplies the Regulations to screw kids in a later report.]
During the hearing the parents presented evidence
that the child requires instruction through verbal behavior ABA
(which the District even acknowledged in the IEP) and that he has made progress by using this approach. The District argued
at the impartial hearing that including a statement of a particular methodology on the child's IEP might unnecessarily "tie
the teacher's hands" by compelling the teacher to use a particular methodology to the exclusion of other methodologies. Of course, this was an argument by the school district attorney, and no evidence of
this nature was offered by the District in the hearing. Lastly, the District
apparently came into the hearing with testimony that the ABA
was going to be provided all along, they just did not want it on the IEP. [Again,
Kelly condones a District cutting the parents out of educational decision-making by not causing the CSE to make a decision
with the parent, and then defend their actions by making claims at hearing that are not supported by the record. ] At no time prior to the hearing did the District inform the parents that the ABA methodology would be used. In fact, they
claimed they did not have the trained staff. The District also did not inform
the parent of these other methodologies they hoped to use. Seclusion? Rifton
chair restraints? Shock treatment? The parents never had any idea.
The fact that Kelly is so willing to undermine
the IDEIA here in New York is just further evidence that
proceeding through the administrative process in this State is futile. Should
our Courts really be affording any deference to an administrative hearing office such as Kelly who is so obviously corrupted,
and so blatantly ignoring the provisions of the re-authorized IDEIA? How many
children’s lives can we allowed to be ruined by this man and the others at NYSED that have created this situation? Please take the time to write to the Attorney General and your elected state representatives
to voice your concern.
SchoolWatch will continue
to report on this matter until the due process rights of parents and disabled children are restored in New York State...
Submitted to The New York Sun by Laurel Bohl, Sep 20, 2007 15:04
"Skoolwatch" or National Enquirer?
I must advise Mr. George Deabold and Mr. Frank Gerace ("cofounders" of the "skoolwatch" website), that if they continue
to use my name in these wild, unprovoked, unsubstantiated, baseless, suggestive slurs against my good name and my reputation,
that I will be forced to take any and all legal action available against them, including seeking an injunction to shut down
their "National Enquirer" style website. Neither Mr. Deabold nor Mr. Gerace were ever in the office they speak of, did not
talk to anyone who worked in that office, have no idea what happened there or what information individual attorneys were privy
to or not privy to, or indeed if the attorneys there were actually fighting to make things better; yet they attack the attorneys
with fabricated scenarios, self-created false hypotheses and negative character assaults that are unsupported by a single
iota of evidence and have no basis in either fact or fiction. In short, they have no idea what they are talking about, and
are simply making things up as they go along for sensationalistic value and their own personal aggrandisement. By denying
they are "journalists" they proudly seem to proclaim they can lie about anything they want to and print it without any ethical
or legal constraints. I note that I am not the only attorney from that office who has instructed Mr. Deabold and Mr. Gerace
to stop using their name in connection with false information and allegations, or face legal action.
Ironically, Mr. Deabold and Mr. Gerace, by attacking good, decent, honest and ethical attorneys, have now achieved the
exact opposite of their espoused objective, and likely have discouraged anyone from cooperating with an investigation for
fear that their names too will be randomly dragged through the mud for no reason. Sadly, the people that are hurt by this
the most are the parents and children with disabilities who really do want and deserve a fair investigation into the decision-making
process behind their appeals, and may have been close to achieving that end. There is no need for this. Mr. Deabold and Mr.
Gerace, if you truly do care about these children with disabilities, as you say you do, be adults and please find a shred
of decency within yourselves and stop the totally unnecessary wild, unsubstantiated accusations and negative slurs against
people you know nothing about in situations you know nothing about, and let a full and fair investigation proceed untainted.
Otherwise, I would advise Mr. Deabold and Mr. Gerace, if they do have an amateur interest in reading up on the law, to spend
less time reading up on the code of professional responsibility for lawyers, and more time reading up on libel law; they may
need it in the future. I also implore all reputable journalists, such as the New York Sun, to refrain from printing anything
from Mr. Deabold and Mr. Gerace or their scurrilous website that cannot be journalistically corroborated from several first-hand
outside sources; which, at the moment, will leave nothing from them or their website that's fit to print.
|
Submitted by SCHOOLWATCH, Sep 30, 2007 04:25
In response to Ms. Bohl's hysterical rant, which she posted on the NY Sun, I thought it necessary to respond. Ms. Bohl
suggests that some "unprovoked, unsubstantiated, baseless and suggestive slurs" were made against her good name and reputation.
If Ms. Bohl turned off her emotions for a moment and read the SchoolWatch posts, she would see that SchoolWatch only suggested
a line of inquiry to any investigative authority looking into this matter. Ms. Bohl appears to be engaging in a propoganda
campaign suggesting that she has no knowledge about the shenanigans at the State Review Office, but as she let on in her previous
attack on SchoolWatch, she acknowledges that an investigation into this matter is warranted. She seems to lack the integrity
to cause that investigation to be undertaken or to participate in it. (Remember, Ms. Bohl is an attorney now with the Attorney
General's Office, which is the office that has been requested to investigate the SRO situation by a group of parents attorneys.)
Ms. Bohl threatens to seek an injunction to shut down the SchoolWatch website. Perhaps that is exactly the kind of attention
this issue needs. We welcome her initiating such an action so that there will be a forum where all of these issues can be
explored. It would be wonderful to have an opportunity to depose Ms. Bohl in a legal forum where her involvement in the SRO
situation could be explored fully. SchoolWatch would then have to expand our site, so that all the testimony could be exposed
to the public. We will welcome the opportunity of a legal forum so that Ms. Bohl's knowledge of the SRO scandal can be fully
exposed to the public. Ms. Bohl seems to forget that the Wall Street Journal broke this story, not our piddly little website.
And Ms. Bohl also seems to forget that these claims she states are unsubstantiated were in fact substantiated by the WSJ,
the NY Sun, and The New York Times. The fact that unnamed sources cited by these highly credible newspapers substantiate much
of what has been written. SchoolWatch cannot be responsible for the desire of sources to remain anonymous. Of course Ms. Bohl
just makes a blanket statement that SchoolWatch has made reports with no basis in fact, but this scandal at SRO is based in
fact, and these facts continue to be exposed. Ms. Bohl alleges that some other attorney(s) has contacted SchoolWatch to threaten
us with a law suit. This is simply not true. No other attorney has made such a threat. Perhaps it is Ms. Bohl that should
be checking her facts. If there is such an attorney, we would welcome that attorney opening a forum to investigate these allegations
through deposition, just as we would welcome any action by Ms. Bohl. Wow! Is Ms. Bohl indicating that she is not willing to
cooperate in an investigation into this criminal conduct? Has she really made this public statement that she would obstruct
justice if asked to cooperate in an investigation? Is she aware of other attorneys that have expressed these sentiments? Well,
sometimes the cover-ups are more serious matters than the original conduct complained of. It is humorous that Ms. Bohl suggests
that SchoolWatch calling for investigation into a scandal injures children. Ms. Bohl worked in SRO, and has not indicated
that she has taken any action to right that situation. Gutless? Ethical? Legal? We think not. Ms. Bohl wants to direct the
publics' attention at SchoolWatch, with the apparent desire to direct attention away from the scandal and any involvement
she may have had. She appears desirous of deflection, rather than correction. Ms. Bohl should get her priorities straight.
Ms. Bohl cites no reason that SchoolWatch reports and inquiries into this matter has somehow caused an investigation not to
occur. Talk about baseless claims! It seems that Ms. Bohl is aware of some decision made by the Attorney General, who was
asked to investigate this matter, that he has declined to investigate it for some reason. I hope we have an opportunity to
explore that decision-making process when we depose Ms. Bohl, should she actually make good on her threat. Ms. Bohl's personal
attacks demean her profession, and she continues to withhold from us all her knowledge of the scandal at the Office of State
Review. Bring it on, Ms. Bohl! We need a forum to get all of this aired before the public, and your current office, the Attorney
General's Office, seems to have made a conscious decision to let those involved in the Office of State Review scandal to escape
accountability. ITS YOUR MOVE ! Seek an injunction, we have lawyers that will fight to get a shot at you. It also
seems that there is a turn around in SRO decisions. hmmm...we wonder why? | |
9-30-07
UPDATE FROM A PARENT...
Hi SchoolWatch:
I am the Dr. referred to in the Inside Scoop Story which followed the headline below.
I wanted to update by letting you know that physical assaults were resumed on my son by
school personnel during this past week.
My son's positive intervention behavior plan was not followed. His IEP was not followed.
This resulted in my son being thrown to the floor three times in rapid succession by one of his teachers.
Neither the IEP nor the behavior plan authorizes any type of such physical intervention.
My son ran off the school grounds after the incident.
He intensely perseverated for over ten hours after the incident. He has already been psychologically
and emotionally damaged, per opinion of IHO, from multiple repeated endangering multiple person prone restraints by untrained
individuals for inappropriate reasons.
The teacher called me after my son left the school grounds. He advised me of what had happened,
stated it was wrong and that he was sorry and that it would never happen again.
I sent an email requesting he call me, as I had some additional concerns.
The email was sent on Wednesday morning after the physical assault of the previous day.
The teacher did not respond to my request for additional contact until an email on friday in which he
stated he would rather speak to me in person than on the phone.
Before receiving said email, I left a message for the school district superintendent to call me.
She returned the call on Friday evening at about 7:00 pm. When I expressed my concerns, the school district superintendent
asked me to repeat word for word what my son had described. When I advised the description was from the teacher who
was the perpetrator of the assaults, she was quite taken aback, as she had no knowledge of the events.
I do not believe any documentation of the event was made.
The IHO found the school had engaged in approximately 10 restraints over a 4 month period of time.
We believe there were many more undocumented restraints.
I believe this most recent event is an example of a swept under the table undocumented aversive
physical intervention not authorized by my son's IEP or BIP.
This very same teacher, in an audio recorded CSE meeting of June 2007, gave assurance that he would never
engage in such physical intervention with our son.
Xxxxx
DOES STATE REVIEW OFFICER PAUL KELLY VALUE THE LIVES OF SPECIAL EDUCATION CHILDREN, OR ARE HIS INTERESTS
SOLELY ON PROTECTING SCHOOL
DISTRICTS FROM FINANCIAL CLAIMS?
10-13-07 BREAKING
NEWS...
HAS KELLY ALTERED GOVERNMENT DOCUMENTS IN ORDER TO DECEIVE A FEDERAL COURT JUDGE?
The Federal
Law demands that the state level review officer render decisions on appeal within 30 days of the appeal being initiated by
either party. SchoolWatch learned today from its sources that Kelly is personally making decisions to violate the law in order not to
render timely decision.
Currently,
a Mexico Central School District case if before Kelly. Had Kelly complied with the regulatory time
lines, the decision in the Mexico case
should have been rendered on September 30th. In fact, Kelly’s office originally indicated that they
would render the decision on September 30th and his staff inputted that date into the computer tracking system.
However, at Kelly’s direction, the staff in his office changed the date the decision would be rendered in the computer
system to read October 13th.
Why was this
change in the computer system made? The explanation is simple. A few years ago the Office of State Review was
sued in a class action suit because they were not rendering timely decisions. (Most decisions at that time were taking
over a year to be issued.) As a result of that law suit, the Office of State Review is being monitored by the Federal
Court to ensure that it complies with the law and renders decisions within 30 days of the appeal being taken. This change
was made in the computer system to deceive the court that is monitoring the timeliness of decisions rendered by Kelly.
Kelly submits reports to the Federal Court, and this change in the tracking data is a deliberate attempt to provide false
information to a court. It is an egregious violation of ethics, in the opinion of SchoolWatch, to provide false
information to a court. We’ll all wait and see whether action is taken by the court to sanction Kelly in
some way.
SchoolWatch also learned that
this particular case involves a child with autism that is sitting at home without any services at all being provided by the
District. The District is maintaining that the child attend a program at the Anderson School despite the Anderson School
informing the District that this placement is not safe for the child. Kelly’s deliberate violation of the law,
and his deceit in changing the records, is depriving this child of services.
Stay
tuned. There is more to come...
Jan 2, 2008
Has the Northern District Court Recognized the Corruption of Paul Kelly?
SchoolWatch has just learned that a judge in the
Northern District of
New York has overturned a decision rendered by State Review Officer
Paul Kelly, recognizing his
mischaracterization of the facts of the
case in order to rule against the parents. Justice Lawrence E. Kahn,
in
very strong language questioning the means by which Kelly reached
his decision, overturned the decision and ordered the
relief originally
ordered by the Impartial Hearing Officer, James P. Walsh.
This case involved a child that was
in need of residential placement.
Both the School District and the parent agreed. Yet the District failed
to
identify a program for the child prior to the start of the school
year. The parents, in desperation, made a unilateral
placement, paid
the tuition themselves, and sought reimbursement through a due process
hearing.
The District’s
defense in the hearing was that it had suggested the
parents visit one more placements before the start of the school
year
that might be appropriate, and because the parents did not visit that
placement they did not cooperate with the
district and therefore should
be denied reimbursement under the “equities prong” of the analysis. If
parents interfere with a district developing an appropriate IEP, they
may be denied reimbursement as a result.
IHO
James P. Walsh, who is known to by the entire special education
community to be one of the truly outstanding IHOs, did
not buy into the
District’s defense. He found that the parents had diligently worked
with the District
in their attempts to find a placement, had visited
multiple placements, and had ruled out this last one as inappropriate
after thorough investigation of the school by phone and internet. He
also noted that the parents were only given
notice by the District of
an opportunity to visit the School (which was located out of state)
only a couple of days
before the start of the school year and after
they had committed to the private school in order to ensure their child
had a place to attend on the first day of school. Walsh also
determined that the District denied the child a
FAPE and that the
parents selected placement was appropriate. He awarded reimbursement
of tuition to the parents.
State
Review Officer Kelly, displaying his true colors and
demonstrating for the world the agenda he is carrying out on behalf
of
the State Education Department and School Districts, overturned the
well-reasoned decision of IHO Walsh. Kelly
agreed with the IHO that the
child had been denied a FAPE by the District. Kelly agreed that the
private school
that the parents paid for was appropriate. He took away
the reimbursement ordered by Walsh based on a ridiculous
assertion that
the parents failure to visit an out of state placement on August 27th,
just days before school was
supposed to start, was grounds to overturn
the decision. As we have pointed out, Kelly has been directed to carry
out an agenda for the State Education Department, which partly includes
protecting Districts from reimbursement claims
for this type of
unilateral placement.
In the appeal to the District Court for the Northern District of New
York,
there was no dispute that the District had denied the child a
FAPE and that the parents had obtained appropriate services
for the
child. The only dispute revolved around “the equities prong” of the
analysis, as this is
what Kelly overturned Walsh’s decision on.
In his decision of January 2, 2008 Justice Kahn stated:
“The
decisions of the SRO and IHO differ only with respect to the issue
of tuition
reimbursement. In making a record-based
determination that the equities
did not favor reimbursement, the SRO rejected the IHO’s conclusions
about witness
credibility without experiencing the testimony of those
witnesses. Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp.
2d
530, 534 (N.D.N.Y. 2001). The major factor given by the SRO for denying
reimbursement was the parents’ act
of failing to make their child
available for intake interviews at two of the District’s recommended
placements.
SRO Decision (Dkt. No. 13, Attach. 4) at 13. The
SRO finds support for his view that it is equitable to deny
reimbursement
based solely on this factor only in a few SRO decisions,
which certainly do not bind this Court. Id. at 14-15. The Court
finds
no decision by a federal court holding that such an extreme result is
appropriate here.”
This Court
highlights a couple of important points with this paragraph.
First, it is recognized in law that the “trier
of fact” be the
individual that makes credibility determinations. The trier of fact
views the witnesses
testimony; observes the demeanor and temperament of
a witness. In these cases, the trier of fact is the IHO. The
person
deciding the appeal only has papers before them. Kelly substituting
his own determination on credibility
for Walsh’s was entirely improper.
(This is not the first time Kelly has done this.) Second, the Court
points out that Kelly arrived at the “extreme result” of stripping the
parents of the tuition reimbursement
relying only on a few SRO
decisions. (Of course these SRO decisions were also rendered by Kelly
as he carried
out his agenda.) The Court correctly reminded Kelly that
his administrative decisions are not precedent setting,
and that
Kelly’s result flies in the face of every decision ever rendered in
this type of matter in all the
federal courts in the United States. The
Court seems to be highlighting in its decision the fact that Kelly is
rendering
decisions without a basis in the law. Could the Court be
aware of the agenda that has been dictated to him?
Justice
Kahn did not end there. He blasts Kelly about his analysis of
the facts.
“Furthermore, in reaching
his decision, the SRO incorrectly
characterized facts that were apparently central to his analysis: the
record reflects
that respondents knew about the interview dates at
these two potential state-approved residential placements because
personnel
from each facility contacted respondents, directly, to either
advise of the interview date or to schedule the interview
date. SRO
Decision (Dkt. No. 13, Attach. 4) at 13. In fact, Plaintiff and
Defendant agree that only one facility directly
scheduled an intake
interview with A.V.’s parents. Material Facts (Dkt. No. 14, Attach. 9)
at ¶¶ 45-46; Pl.’s
Mem. of Law (Dkt. No. 13, Attach. 7) at 12-13. The
intake interview with the other facility was scheduled by the District
for August 27, and the District notified the parents of this interview
by letter dated and mailed on Friday, August
20. Id. Although A.V.’s
parents spoke via telephone with a representative of that facility,
they agreed only
to accept information from that facility.”
What Justice Kahn is saying in his decision when he says Kelly
“incorrectly
characterized facts that were apparently central to his
analysis,” is exactly what SchoolWatch
has been reporting to you –
Kelly has been dictated an agenda, and is distorting the facts in the
record to
fit a pre-determined outcome!
Now, Justice Kahn, in a very diplomatic way states, “The Court is more
convinced
by the credibility determinations and reasoning of the IHO
than those of the SRO.” However, it should be noted
that shortly
before this decision was rendered the Albany Union Times reported on
Kelly’s independence having
been compromised. Sources throughout Albany
government circles and close to the Court have confirmed that the
corruption
of Kelly is a hot topic, and no doubt the federal court
justices have taken note.
SchoolWatch
would like to thank reporter Rick Karlin, of the Albany
Times Union, who helped bring this corruption to the attention
of the
Albany area with his front page story. Kelly continues to carry out
the agenda that has been dictated
to him. Perhaps this decision of
Justice Kahn will help to bring further light upon the shenanigans
within the
NYSED.
Also, BRAVO to Jeff Marcus and Jason Sterne who secured this parent
victory in the federal court.
There is a dearth of parent attorneys throughout NYS, and Kelly’s agenda is intended to cause fewer lawyers to practice
in the area of special education. This case aided this one parent by securing the reimbursement and aids and by helping
to expose Kelly for the puppet that he is.
Stay tuned. There is more to come...
Jan 7, 2008
A Closer Look at the Decision of Justice Kahn and the Kelly Agenda:
As has been reported
by SchoolWatch and others, Paul Kelly, the State Review Officer that rules
on appeals of special education decisions that are rendered by Impartial Hearing Officers, has been directed to carry
out an agenda. Those orders have come from the Commissioner of Education through his Office of Counsel. As noted
previously, Kelly obtained his appointment largely because of his sexual relationship with Kate Surgalla, a senior
lawyer in the Office of Counsel, who advocated for his appointment. Part of the agenda that Kelly has been ordered
to implement includes doing whatever he can to “shut down” reimbursement cases by creating a stream of reimbursement
denials in SRO decisions upon which districts can rely. As reported previously, the State Review Officer is required
by federal law to be independent. Unfortunately, the integrity of the “leadership” of the New York
State Education Department has little regard for federal law and has compromised the independence of the Office by
appointing Kelly and dictating to him an agenda. That agenda is not child focused, but rather aimed at protecting
school districts at the expense of children. What is a reimbursement case all about? School districts attempt
to paint the picture of a reimbursement case of a parent seeking “the best” program for their child at
the expense of the taxpayer. Yet, the taxpayer should not be fooled by these false assertions. When
parents seeks reimbursement for placing a child in a private school they do so because they believe the public school
program does not meet the needs of their child. When the placement is made by the parents of the child in the
private school, it is done at parent expense and with the risk that the claim may not be successful against the school
district. These cases involve parents “gambling” tens of thousands of dollars. They take these
huge financial risks because of their belief that another year in the inappropriate public school program will not benefit
or perhaps even harm their child. Many of these families take on second mortgages, second jobs, may raid their retirement
savings, etc. Great sacrifices are made. Typically, these children have intense therapeutic needs that cannot
be met by the public schools. School districts often cannot defend the crappy program they offer a student.
So many of these cases are won by school districts on prong two of the analysis described below. Because the parent
has the burden of proof on proving the appropriateness of the private school placement, and proving this must be achieved
in a certain manner in a hearing (in a legal sense), it is not unusual for a parent to loose a case on prong two.
The logistics of proving prong two are difficult at times, as many of these private school placements are located out-of-state.
But districts often do not consider the merits of a case when they choose to go forward with a reimbursement hearing.
It is very typical for a school district to litigate a reimbursement claim, without regard to the merits of the defense,
as a means of intimidating parents from making reimbursement claims and as a means of intimidating parents’
attorneys from taking on this type of case. Reimbursement cases go through a three prong legal analysis when they are
litigated. The first prong to the analysis is whether the District offered the child a free, appropriate public
education. The second prong is whether the unilateral placement selected by the parent addressed the child’s
needs appropriately. The third prong, referred to as the ‘equities prong,’ considers whether the parent
interfered with the district making an appropriate recommendation. In order for a parent to win a reimbursement
case it must be shown in the hearing that the District did not offer the child a FAPE, that the unilateral placement
provided by the parents was appropriate, and that the parents did not interfere with the District developing an appropriate
program. The equities prong of the analysis has a value. It recognizes that parents have an obligation to
participate in attempts to develop and appropriate public school program constructively, and certainly not interfere
with those attempts. For example, it would not be equitable for a parent to obtain reimbursement if he/she withheld
evaluative information from the District about a child’s needs, and then used that information to justify that
the district’s recommendation was inappropriate and the private program appropriate. It is this type of gamesmanship
by parents that the equities prong protects districts against. However, Kelly is attempting to use the equities
prong to reach “extreme results” as pointed out by Justice Kahn. In the Shenendehowa Central School
District case it was not the parent that engaged in any type of gamesmanship, but the District. The parent was working
desperately with the District to develop an appropriate program throughout the spring and summer. The district
was dropping the ball, despite the recognition by both parent and district that the child needed a residential program.
In fact, the district was causing the parent to look at a number of programs that were inappropriate – causing
the parent to have to invest a great deal of time and money to observe them. It was not until the parent served
notice on the district that she had found a program and was placing her child there that the district even offered
an “intake interview.” This intake interview was scheduled for only days before school started and would
not have even provided time for the CSE to actually meet and make a recommendation for that program. Because
of district gamesmanship, had the parent relied on the district, the child would have started the school year without
a program. In fact, this last minute offer of an “intake interview” was really an orchestrated defense
to the impending hearing. Kelly had already issued a couple of decisions ruling that a parent’s failure
to participate in an intake interview could be grounds for ruling against a parent in a reimbursement claim. Through
unofficial channels, our “wonderful” NYSED has suggested to districts that they create such defenses to
reimbursement claims with the confidence that Kelly will uphold these defenses. [Our readership should note that Shenendehowa
is represented by Susan Johns, who we have previously referenced in our reports as residing in Syracuse, where Kelly
lived prior to being appointed as a State Review Officer. Ms. Johns has seen an increase in her ability to overturn
IHO decisions that are favorable to parents since Mr. Kelly became the SRO. Coincidence? Parent lawyers
report it is not the result of her legal skills.] To read the decision that Justice Kahn overturned, go to
http://www.sro.nysed.gov/2005/05-116.htm.Let’s consider the practical affect of Kelly’s decision in 05-116 had it now been overturned by Justice
Kahn. If a district is allowed to delay making an appropriate program recommendation during the child’s annual
review in the spring, drag the process out until the week before the regular school year starts, and then offer only an
“intake interview” the week before school, the possibility of obtaining reimbursement for unilateral placements
will be nearly impossible. Everyone in the special education community is aware that placements in private schools
are not unlimited. Parents typically must secure a placement for a private school at the end of the previous school
year. Certainly these placements must be secured before the start of the school year. If a district is
allowed to successfully defend a reimbursement claim by delaying recommendations until after the enrollment dates
for private schools, in many cases they will have successfully denied the child a FAPE as the child will be trapped in
the public school program that is arranged at the very last minute. Justice Kahn pointed out in his decision that
Kelly reached an “extreme result” that had not been found in the decisions of any federal court in the
country. And Justice Kahn also emphasized that Kelly only relied on his own prior decisions to support
his conclusion. This attempt by Kelly to establish precedence with his own decisions has already been reported
upon by SchoolWatch. Finally a court is recognizing Kelly’s shenanigans,
and slapped Kelly’s wrist with a reminder that his administrative decisions have no binding affect. The two
cases that Kelly relied upon to achieve his extreme result evidence the agenda he is carrying out. One of those
cases involved a child that had significant behavioral issues occurring and was in need of a therapeutic program.
In that case, it was ultimately determined that the district did not offer an appropriate program, but also the parents
did not provide appropriately for the child at the private school. Perhaps Kelly’s analysis of the facts should
have ended there. However, he went further in his decision. The Impartial Hearing Officer who rendered
the initial decision on this case indicated that there were no equitable grounds to deny the parents’ reimbursement
claim, as they had participated in the process. In fact, the parent(s) had visited the BOCES program that the
district was suggesting, and the parents believed it inappropriate. The IHO believed this evidence enough to
demonstrate parent cooperation with the IEP development process. However, Kelly substitutes his own credibility
determination for that of the trier of fact. He concluded that because the parents did not allow the child to
participate in the “intake interview” that this was unreasonable conduct on the part of the parents.
It is just absurd that Kelly would suggest that a psychologically fragile child such as this engage in intake interview(s)
at programs that the parents had viewed and found to be inappropriate. No parent would put their child through
interviews at programs that they had determined were not appropriate. To read the entire decision go to http://www.sro.nysed.gov/2005/05-075.htm . [Also, SchoolWatch has been able to confirm that the facts of this case, as
reported in Kelly’s decision, were grossly distorted to a degree that is almost slanderous of the parents.] But
remember, the reimbursement claim failed on the other prongs of the analysis. Why address and stretch the equities
prong in this case? Simply, Kelly has an agenda, and he was using this case to provide guidance to districts
on how to fight reimbursement claims, signaling to them that nearly any “equities accusation” a district made
against a parent would cause him to deny a reimbursement claim. It has been reported to SchoolWatch
that calls were made from Office of Counsel to school districts suggesting time consuming requirements be placed on parents
so that any type of resistance of the parent to devoting a great deal of time to the IEP process can be used against them
in reimbursement claims. It has always been a common theme of school district defenses in due process to “blame
the parent,” and now with Kelly carrying out this agenda, the “blame the parent” defense was assured
of success. Kelly originally started this trend of decisions intended to deny parents reimbursement on the equity prong with
a White Plains City School District case. In that case, Kelly mischaracterized the fact to suggest there was
a failure of the parent to make the child available for a psychiatric evaluation and an intake interview. Let’s
analyze a bit of the decision:
“Petitioner's consent to conduct a psychiatric evaluation was requested on April 25, 2002 and received
on May 2, 2002 (Exhibits D-10, 11, 44). The psychiatric evaluation was scheduled for May 10, 2002 (Transcript p. 56).
The CSE was to convene the following week but, in response to the parent's request for a meeting at an earlier date, the
CSE convened on May 7, 2002, before the scheduled psychiatric evaluation (Exhibit D-40). At this meeting, the CSE
classified the student as emotionally disturbed and recommended placement in a self-contained special education therapeutic
day program for adolescents with substance abuse problems, known as West-Prep, operated by the Southern Westchester BOCES
at the Westchester Medical Center (Exhibits D-2, D-9). West-Prep had already reviewed a referral packet for the student
and determined that she might be eligible for placement in the program, pending an intake interview. An individualized
education program (IEP) was prepared for the remainder of the 2001-02 school year that recommended moving the student
from the Community School to a program operated by BOCES, such as West-Prep, or an approved private school with individual
and group counseling and special transportation (Exhibit D-2). Neither the intake interview for West-Prep nor the
psychiatric evaluation was conducted because the student was unilaterally placed by her mother in the CEDU High School
and residential facility on May 10, 2002. The CSE chairperson confirmed by letter dated May 14, 2002 that petitioner reported
on May 10, 2002 that her daughter would not be available that day for the scheduled psychiatric evaluation because she
was taken to California early that morning (Exhibit D-35). The CSE chairperson expressed disappointment that the student
was not made available for the evaluation and reported that the CSE was in the process of arranging a "network" meeting
to identify community services to assist petitioner's family while a placement was being finalized (Exhibit D-35).” Here
was a child having severe emotional issues, that the district and parent recognized as needing a therapeutic placement.
On May 7th they classified the child as emotionally disturbed. On May 7th, they developed an IEP but failed
to offer the child a placement in the recommended program. The district could have had a representative of the
program present at the meeting so that the placement could occur, as is required by regulation. Instead, this façade
of an “intake interview” was created. The parents, seeing their child falling apart and in desperation
were forced to place their child themselves, as the child’s needs were immediate. Make no mistake about it,
districts and our NYSED have designed a very slow process for placing children in these programs because these programs
cost more. Hundreds of children in NY State are awaiting placements in these programs, and it can take months
and years to obtain a spot. This forces many parents to make the placement themselves at parental expense, and the
district fights the parent over payment in the due process hearing. These are deliberate actions by many districts
to shift the cost of a FAPE to the parent. If you’d like to read the entire decision go to http://www.sro.nysed.gov/2003/03-025.htm . It is not only reimbursement issues that Kelly is affecting with his agenda. He is establishing this same
type of trend on other issues including methodologies, measurable goals and objectives, record access of parents,
evaluations, etc. The intent of the NYSED puppet-masters is to create a fruitless administrative process so parents
are reluctant to pursue their children’s rights to a FAPE. As district’s become more and more emboldened
by Kelly’s actions, more services will be denied to children and there will be a huge financial windfall to districts
at the expense of disabled children and their families. Thankfully one Justice has seen through Kelly. Hopefully
others will follow suit. SchoolWatch will be reporting further on this
and our readership will be surprised to learn that these posts regarding Kelly are widely read by those in State and
Federal offices in Albany. We like to think that we played a small roll in bringing the State Review Officer situation
to the attention of the federal court chambers. Stay tuned...
More on SRO
Kelly and the Agenda – Rulings on the Statute of Limitations
It is time again to comment on the bias of the State
Review Officer and
the liberties he is taking in his decision-making, in order to negatively impact on the lives of children
with disabilities and their families. Let’s take a look at Mr. Kelly’s inconsistency in applying the law
when he has the opportunity to injure parents financially when they are represented by attorneys.
Now, the issue that
we will be discussing here is that of application of the statute of limitations to an IDEA matter. Prior to the re-authorization
of the IDEA in 2004 (effective in 2005) New York State applied
an analogous statute of limitations of one year. IDEA 2004 established a two year statute of limitation.
Now,
one question that arises is whether a two year statute of limitations applies to events that occur prior the change in the
law, or if the one year statute of limitations should be applied to those events. Kelly has determined that the two
year statute of limitations applies in one case where a parent was proceeding in the matter pro se (without an attorney),
in a case he ruled on in 2006. Yet when this same issue comes up when a parent is represented by an attorney and when
the parent prevailed at the hearing level, Kelly wrongfully does not apply the two year statute of limitations.
Here
are the excerpts from the two conflicting rulings:
“Petitioners' claims relate to two separate events: (1) the
CPSE's
declassification of their daughter in June 2004, and (2) the
appropriateness of the CSE's evaluations
of their daughter upon a
subsequent referral in 2005-06. I will first address respondent's
cross-appeal
on the applicable statute of limitations to determine
whether petitioners' declassification claim was timely raised.
Respondent
contends that petitioners' claims regarding the 2004
declassification are barred by the one-year common law most analogous
statute
of limitations (see Application of a Child with a Disability,
Appeal No. 02-119). Respondent attempts to base
the applicable statute
of limitations analysis on the analysis operating at the date
petitioners' claim accrued,
on or about June 2004, rather than the date
of the due process hearing request. Respondent is incorrect.
Petitioners
requested an impartial hearing on or about February 17,
2006 (see IHO Decision, p. 2; Pet. at p. 1; Ans. ¶ 1), hence
the new
amendments to the IDEA, which became effective July 1, 2005, are
applicable to their claim (see Individuals
with Disabilities Education
Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004]
[codified as
amended at 20 U.S.C. § § 1400-1482). IDEA 2004 requires
that, unless a state chooses to set a different limitations
period
under state law, a party must request a due process hearing within two
years of when the party knew or
should have known of the alleged
violation (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. §
1415[b][6][B]; N.Y.
Educ. Law § 4404[1][a]). In the instant case, the
child's declassification occurred in June 2004, and petitioners
requested
a hearing in February 2006, which fell within the now
applicable two-year statute of limitations period set by federal
law.
In the absence of any State statute or regulation to the contrary, I
must apply the federal two-year statute
of limitations and find
petitioners' claim regarding the child's declassification in 2004 to be
timely. SRO
Decision 06-075.
“The IDEA was amended in 2004 with an effective date of July 1, 2005.
The IDEA
2004 amendments added an explicit limitations period for
filing a due process hearing request and also added explicit
accrual
language. IDEA 2004 requires that, unless a state establishes a
different limitations period under state
law, a party must request a
due process hearing within two years of when the party knew or should
have known
about the alleged action that forms the basis of the
complaint (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. §
1415[b][6][B];
Educ. Law § 4404[1][a]). Absent clear congressional
intent, a newly enacted federal statute of limitations does not
operate
retroactively (see Landgraf v. USI Film Products, 511 U.S.
244, 280
[1994]; In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 [2d Cir.
2005] [holding that the limitations
period in the Sarbanes-Oxley Act of
2002 did not have the effect of reviving stale claims]; Application of
a
Child with a Disability, Appeal No. 06-083). Prior to the IDEA 2004
amendments, the IDEA did not prescribe a time period
for filing a
request for an administrative due process hearing and a one-year
limitations period was applied
in New York (M.D. v. Southington Bd. of
Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; Application of the Bd. of
Educ.,
Appeal No. 02-119). A claim accrues when the complaining party
knew or should have known of the injury involved, i.e.,
the
inappropriate education (Southington, 334 F.3d
at 221). Here, the
record shows that the IEPs for the 2004-05 school year were developed
as a result of CSE
meetings in February 2004 and April 2005 (Dist. Ex.
6; Parent Ex. 3). The April 2005 IEP was provided to respondents
on
April 5 and April 14, 2005 (Parent Exs. 23; 25). Respondents' due
process request is dated May 31, 2006 and
was received by petitioner on
June 2, 2006 (July 10, 2006 Tr. p. 12), over one year after respondents
knew or
should have known of the alleged injury, in this case the
alleged failure to include certain services on their son's
IEP.
Accordingly, I find that respondents' claim regarding petitioner's
failure to provide services required
by 8 NYCRR 200.13 during the
2004-05 school year is untimely (see Application of a Child with a
Disability,
Appeal No. 06-083) SRO Decision 07-028
Sources
inside Kelly’s office pointed out how these cases clearly
illustrate how Kelly is twisting the law in any direction
to carry out
one of the elements of his agenda – deny parents prevailing party
status when they are represented
by attorneys so that no attorney fee
claim can be made against the district. There is no other
explanation
for his issuing conflicting rulings on this point of law.
Stay tuned,
as SchoolWatch continues to report on the State Review
Office shenanigans.
Stay tuned...
Inside Scoop on the Lawyer Pension Scandal
(5/10/08)
Attorney General Andrew Cuomo cut
a deal this past week with a Buffalo law firm, Hodgson Russ. The deal forced the firm to pay a $50,000.00 penalty for
the improper arrangement of having its attorneys listed as employees of the local BOCES, while they should have been listed
as independent contractors. Hodgson Russ cut this deal quickly, so as to distinguish themselves from the other firms and attorneys
that have been named in the school district attorney pension scandal. None of the Hodgson Russ attorneys were contributing
to the pension system. The Hodgson Russ arrangement simply was a means of local school districts accessing attorneys
at Hodgson Russ through the middle-man of the BOCES. This was really a “scam” targeting the New York State
Education Department in order to claim reimbursements from NYSED for the attorney expenses. The beneficiaries of this
scam were the local school districts, and the victim the NYSED. It is much less egregious than the pension scandal that
Cuomo is pursuing. Karl Kristoff, a senior partner at Hodgson Russ is rumored to have approached the Attorney
General’s office and brokered this deal to save the firm from possible criminal liability.
A source at Hodgson Russ indicated
that the firm’s decision-makers were aware that this scandal was explosive and that Attorney General Cuomo is expected
to select a number of those attorneys in the pension scandal that have engaged in the most egregious conduct and arrest them.
The HR employee indicated that HR wanted to be sure to be isolated from the “upcoming fireworks.” The deal
cut by HR protected the firm from any criminal action that is anticipated being initiated against firms and attorneys involved
in the pension scandal. The HR employee spoke to SchoolWatch on condition of anonymity indicated
that HR attorneys did this at the instigation of BOCES, and there was no personal gain such as pension benefits. Apparently,
the Marc Rietz decision of 2002 that prevented CNY attorney Marc Rietz from collecting pension benefits was known to the attorneys
at HR, therefore they did not attempt to collect pensions. “That decision forbidding this pension scam is well-known
to every attorney that practices school law in New York. Marc Reitz has spoken openly about it at many conferences and
informal gatherings. No one in the education law field was unaware of it.”
Cuomo is also under fierce political pressure to abandon his campaign against
the corrupt and politically connected attorneys. The attempts to derail Cuomo’s investigation include
pressure from the New York State Education Department. A source close to the A.G.’s office reported that Cuomo is looking
at each case separately, but is seeing a growing pattern of conduct suggesting systemic abuses that go beyond the pension
scandal. Other investigations have spun off from the pension scandal, and there is talk of a RICO task
force being formed to investigate these crimes, and that individuals working in Albany in the New York State Education Department’s
Office of Counsel may also be the targets of this RICO task force. (RICO is the acronym for the law enforcement statute that
addresses Racketeer Influenced and Corrupt Organizations).
Interestingly, while Cuomo’s
office ramps up for an expanded investigation into corruption, Richard Mills, the Commissioner of Education, issued a joint
statement with the A.G. regarding the pension scandal and congratulating BOCES districts for their cooperation with the A.G.’s
office. Mills has been attempting to head off this scandal and has expressed fear to staffers of this attorney
scandal leading to connections to NYSED awareness and involvement in other scandals. Mills is right to
have these concerns, as multiple lawyers have had their criminal defense attorneys speaking to investigators from the A.G.’s
office and brokering deals. SchoolWatch has learned that these “brokered
deals” involve school district lawyers providing information about other monetary scandals that they are aware of, and
that some of those scandals involve money filtering to individuals in key positions in the Commissioner’s office, including
the Office of Counsel and the Office of State Review.
SchoolWatch
has developed a number of sources that are providing information to us on this matter. Stay tuned. There
is more to come.
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