October 2012 Archives

Important SDNY Notice: Extension of Deadlines in Criminal Cases

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IMPORTANT NOTICE FROM UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK:


WHEREAS, Hurricane Sandy has caused extraordinary damage and disruption in the New York City metropolitan area, including, but not limited to, widespread power and utility outages in New York City, extensive transportation problems created by closure of the New York City mass transportation systems, dislocation of New York City residents, and other related delays such as the inaccessibility of the United States Courthouse in Manhattan,


WHEREAS, it is currently unclear when the United States Courthouse in Manhattan will again be accessible,


WHEREAS, current transportation restrictions render it difficult and in some cases impossible for individuals to travel to the Courthouse,


IT IS ORDERED, pursuant to Fed. R. Crim. P. 45(a) (3) and (b) (l), that all deadlines in any pending criminal cases that would otherwise expire under the Federal Rules of Criminal Procedure or any statute, rule, or order are extended until Monday, November 5, 2012, or until such time as specified in a further order of the Court.


IT IS FURTHER ORDERED, pursuant to Fed. R. Crim. P. 45 (a) (3) and (b) (1) and Section 3161 (h) (7) (A) of Title 18, United States Code, that all deadlines in any pending criminal cases requiring action by a grand jury are further extended until November 12, 2012, or until such time as specified in a further order of the Court, and that the ends of justice served by granting this continuance outweigh the interests of the public and any criminal defendant in a speedy trial.


SO ORDERED.

Dated: October 29, 2012


HONORABLE LORETTA A. PRESKA , CHIEF UNITED STATES DISTRICT JUDGE



 

 

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Volunteers needed to help Sandy victims--NYSBA LRIS

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The State Bar's Lawyer Referral and Information Service is recruiting attorneys who can provide free telephone consultations to individuals affected by Hurricane Sandy. There is need for attorneys with insurance, landlord/tenant, co-op and condo, or FEMA appeals experience, as well as those who can handle general practice matters.

We encourage attorneys outside the NYC area to volunteer. The program is set-up to assist victims via phone consultation.

Please respond as soon as possible if you can help hurricane victims in need. 


Go to: 
www.nysba.org/DisasterVolunteerSandy to fill out your volunteer form.

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New York Courts-Sandy Closings

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For information on Downstate Court Closings follow this link:
http://www.courts.state.ny.us/court-closings.shtml

Or Call:
1-800-268-7869


Hurricane Sandy: Customer Assistance Available for Westlaw

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Thomson Reuters WESTLAW STORE - SHOP FOR LEGAL BOOKS AND ONLINE RESEARCH PLANS
Grey rule

CUSTOMER ASSISTANCE AVAILABLE

October 31, 2012

To our customers impacted by Hurricane Sandy:

We understand that the full extent of the damage will not be fully understood for days, but we want you to know we are here to help.

Thomson Reuters is committed to helping customers affected by Hurricane Sandy restore their practices and businesses as soon as possible. To assist in the rebuilding effort, we've set up a dedicated hotline. If you have been displaced by the disaster, please contact Customer Service at 1-800-554-8909, ext. 43356, to let us know that you're safe and what your needs are. When you're ready to get back on your feet, we're ready to help.

Thomson Reuters is committed and proud to stand with you throughout your process of recovery and rebuilding.

Very best wishes,

Bob Azman
Senior Vice President, Customer Experience & Education
Thomson Reuters



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Court Upholds Bloomberg Plan for Indigent Defense Conflict Counsel-NYLJ

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Matter of the New York County Lawyers' Association v. Bloomberg, 155,Read entire NYLJ article by Joel Stashenko here.

The majority of the 4-3 court said the plan introduced by Mayor Michael Bloomberg in 2008 and modified in 2010 satisfies the requirements of County Law §722 for a so-called "combination plan" in which the city assigns to institutional providers the cases of poor defendants where primary legal services providers have a conflict of interest.

Further, Judge Carmen Beauchamp Ciparick (See Profile), writing for the majority inMatter of the New York County Lawyers' Association v. Bloomberg, 155, said city's ability to do so is not contingent on the approval of local bar associations.






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What's New In Evernote 5 For Mac - YouTube

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Read Gov.'s Entire Press Release here.

New Felony Crime and Expanded Definition of Aggravated Harassment

 

The law creates the Class E felony of Aggravated Family Offense, which enables law enforcement to prosecute as felons defendants who commit certain misdemeanor-level offenses and have a previous conviction for a specified misdemeanor or felony against a family or household member within the past five years. It also expands the definition of the Class A misdemeanor of Aggravated Harassment in the Second Degree to include when a defendant, with intent to harass, annoy, threaten or alarm, causes physical injury to an individual, or to a family or household member of that individual.

 

Although New York State already has a number of strong domestic violence protections, many domestic violence abusers repeatedly commit low-level offenses, which carry minor penalties, enabling them to continue subjecting their victims to fear and harm.

 

The aggravated family offense takes effect in 90 days and the aggravated harassment misdemeanor and the bail provision take effect in 60 days. The maximum sentence for a class A misdemeanor is one year in local jail; the maximum sentence for a class E felony is up to four years in state prison.

 

Allows Judges to Consider Additional Risk Factors in Determining Bail to Better Protect Victims from Further Harm

 

Under the new law, courts will be required for the first time to consider certain risk factors when determining recognizance or bail for a defendant who is charged with an offense against a family or household member.

 

Currently, courts are not required to consider any special factors when determining recognizance or bail in a domestic violence case, allowing offenders in some cases to go free on low bail and thereby be allowed to stalk, harm and sometimes kill their specifically targeted victims. Under the legislation that was signed today, judges will be required to consider well-established risk factors, such as an offender's prior violation of an order of protection and the accused's access to guns.

 

Establishes Statewide Fatality Review Team to Find New Ways to Reduce Intimate Partner Homicides

 

Under the new law, the New York State Office for the Prevention of Domestic Violence will establish a statewide domestic violence fatality review team. The review team will bring together domestic violence-related professionals to review domestic violence homicides, in an effort to understand more fully the factors involved and determine how the system can be improved in order to help prevent future deaths. The review team will report periodically to the Governor and the Legislature to assist the State and local communities in improving domestic violence prevention measures. The review team will be established in 180 days.

 

The package of laws signed today also includes provisions that address non-criminal needs of domestic violence victims, providing them options to sever their relationships with abusers in a variety of ways: enhancing last year's address confidentiality bill to provide appropriate protections for family members; ensuring that insurance companies, when notified of the domestic violence, do not jeopardize a victim's safety by disclosing confidential information to the abuser; and preventing abusers who were subject to an order of protection or charged with someone's death from making funeral or burial arrangement decisions

 

In addition to targeting domestic violence through stronger legislation, New York State will institute three new programs designed to enhance victim and officer safety, and hold offenders accountable for their crimes: a specialized domestic violence court at the Rikers Island Judicial Center for parolees with a history of domestic violence; a high-risk response team, and free, online training for police officers.

 

NYC Domestic Violence Court for Parolees

 

A joint initiative of the New York State Board of Parole and Department of Corrections and Community Supervision, the specialized court will serve the five boroughs of New York City beginning this fall. Two Administrative Law Judges will hear domestic violence cases and provide judicial oversight through the parole violation process. In addition, specially trained parole revocation specialists will work with victim advocates and other law enforcement agencies to contact the victim quickly after the incident, develop a safety plan for the victim(s) and coordinate treatment services. The ultimate goal is to provide for the safety of victims, especially children, and to enforce strong offender accountability and monitoring.


***



 


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Windows Day At Evernote

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New Webcams Add Wide-Angle Video Calls to Your TV - NYTimes.com

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Now wide-angle cameras that pop onto large-screen televisions are on the market; they capture high-definition video and a generous stretch of the living room sofa, too. Several devices, including the TV Cam HD ($199.99) from Logitech, are already on sale, with at least a half-dozen others expected in time for the holiday shopping season, said Richard Doherty, research director of the Envisioneering Group, a market research company in Seaford, N.Y.

The new TV cams are for people who want to add an Internet-based feature to their  high-definition TV's. "You can add this capability for a few hundred dollars or less," Mr. Doherty said. "Lots of people have HDTVs they've bought in the last few years, and they aren't going to get rid of them for Internet TVs."

Internet-enabled TVs have software for video chatting, but many models require viewers to buy a suitable add-on camera.

Logitech's TV Cam HD works with any high-definition television that has an available HDMI port, a common connection. It comes with connectivity to the Internet by way of Ethernet or Wi-Fi, and Skype software that supports high-definition video calling. To control the camera, you use a small remote control to zoom in or pan during a call, or to enter text on the screen.

Read entire NYTIMES article/review by Anne Eisenberg here.



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IRS Balance Due Inquiry - YouTube

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Second Circuit Strikes Down DOMA

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Windsor v. United States 12-2335-cvAP reports that:

A divided federal appeals court in Manhattan this morning became the second in the nation to strike down the Defense of Marriage Act as unconstitutional.

In Windsor v. United States, 12-2335-cv, the U.S. Court of Appeals for the Second Circuit upheld a ruling by Southern District Judge Barbara Jones (See Profile) that the 1996 law that defines marriage as involving a man and a woman was unconstitutional.

A majority of the three-judge Second Circuit panel, in a ruling by Chief Judge Dennis Jacobs (See Profile), concluded that the definition violated the Equal Protection Clause. Its opinion joined an earlier decision by the First Circuit in Boston.



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NDNY FCBA sponsored CLE programs

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This is a reminder that there are three NDNY FCBA sponsored CLE programs that will be held next week.  Please go to the NDNY FCBA website at www.ndnyfcba.org  to view the CLE Notice and Timed Agenda for each program.

On Tuesday, October 23, 2012, in Syracuse from 9:00 - 12:00 will be "Handling a Prisoner Case" .  This link will take you directly to the registration page.  REGISTER NOW - HANDLING A PRISONER CASE - SYRACUSE

On Thursday, October 25, 2012, in Albany from 9:00 - 12:00 will be "Handling a Prisoner Case".  This link will take you directly to the registration page.  REGISTER NOW - HANDLING  A PRISONER CASE - ALBANY

On Thursday, October 25, 2012, in Albany from 1:30 - 4:30 PM will be "Defending A Prisoner Case Pretrial".  This link will take you directly to the registration page. REGISTER NOW - DEFENDING - PRETRIAL - ALBANY

The registration deadline is October 18, 2012.

We hope to see you at one of these upcoming programs!  If you have any questions, please contact Melissa Withers @ mmwithers@ndnyfcba.org.


CLE Committee
NDNY Federal Court Bar Association
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Westlaw Case Notebook Portable E-Transcript on the iTunes App Store

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For iPhone 3GS, iPhone 4, iPhone 4S, iPhone 5, iPod touch (3rd generation), iPod touch (4th generation), iPod touch (5th generation) and iPad.

Portable E-Transcript is a professional grade application available for your iPad® or iPhone®.You can review and annotate E-Transcripts anytime, anywhere - all you need is an iPad or iPhone to begin using your E-Transcript electronic witness testimony transcripts on the go.

Portable E-Transcript features:
• Works on your iPad and iPhone
• Word Index helps you search and find terms within your E-Transcript
• Receive E-Transcript format (PTX) via email, Dropbox, and iTunes®
• Ability to add electronic highlighting and notes
• Email a transcript with highlighting and notes from iPad or iPhone
• Update the transcript in the desktop version of Westlaw Case Notebook to include the highlighting and notes added in the app"

iPhone JD (Jeff Richardson) sums up his review:  If you already use Westlaw Case Notebook to manage your litigation files, then I imagine that this app would be very useful.  If you don't use that product, then I doubt that you will want to use this app to highlight a transcript because you have no easy way to export the file with your annotations.  Even so, this is an app that every litigator should keep on their iPhone and iPad just in case they receive a .ptx file from a court reporter or another attorney.  With this app installed, at least you can look at the transcript immediately without having to go to a PC or ask to have the file sent to you again in another format such as pure text or PDF.

Click here to get Westlaw Case Notebook Portable E-Transcript (free):  Westlaw Case Notebook Portable E-Transcript - West, a Thomson Reuters business

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MemStash - Stop forgetting. Remember anything.

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Simply highlight any text you want to remember, and click the bookmark "Stash It".

They'll email or SMS you 10 minutes, 24 hours, and 7 days later to make sure you memorize it.

Push your notes automatically to your Evernote account.

Free for now.  Try it here.



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Epson's New Scanner: Is It Suitable for Your Office?-Law Practice Magazine

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When it comes to desktop scanners in the legal marketplace, the perennial favorite has been the Fujitsu ScanSnap S1500. Finding a scanner that has the speed, features, software and durability of the ScanSnap S1500 has been a goal long sought by others but not achieved. Nevertheless, that may be about to change: Epson recently provided Nerino Petro, Jr with its WorkForce Pro GT-S50 desktop duplex color sheet-fed scanner to review. Available for as low as $330 online based on its written specifications, it is faster and has a larger automatic document feeder than the ScanSnap. Additionally, the GT-S50 is industry-standard compliant with both TWAIN and ISIS drivers, which means that the GT-S50 can work with TWAIN- or ISIS-compliant software such as PaperPort, OmniPage, Acrobat and more. 

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Equipping the Law Office 2012 | Bar Journal | Oklahoma Bar Association

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Equipping the Law Office 2012 
is an article Jim Calloway was asked to put together for the Oklahoma Bar Journal. He tries to cover generally everything that a lawyer might want to purchase to set up a solo practice or small firm. Jim does a good job being comprehensive. Jim would like you to read this article and share it with anyone starting a practice or a law student who might be considering doing it after graduation.


This article is intended to give an overview of the different types of equipment that might be purchased in the law office today. While some products will be mentioned, it is not intended to cover all products. Generally the focus here will be on a firm of one to 10 lawyers.

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The MobileLaw™ application is a legal text navigation platform that currently includes more than 200 United States legal texts for download, including federal statutes and codes from New York, California, and Texas. Texts are uploaded constantly, and each is free for you to download and use at your convenience. No subscriptions; no fees.

Search for the codes you want, bookmark the sections you find, add the notes you want, and email them all for future reference.

Eliminate the cumbersome "page flipping" inherent with the use of other electronic references - the MobileLaw™ application provides the user an accordion-style, expandable table of contents, which gives immediate access to the rule you need intuitively and elegantly. Adjacent statutory provisions are available with a swipe to the right or left.


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NYC Housing Court Forms: Tenant Affidavit to Vacate a Default Judgment

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This free and easy program will ask you questions and make papers that help you tell a judge why you missed your court date or didn't answer a petition in a New York Citynonpayment or holdover case. When you finish the program, you can print a paper called an "Affidavit in Support of anOrder to Show Cause," which you must give to the Clerk in the Housing Court. The papers ask the judge to let you come back to court.

You should only use this program if there is a judgmentagainst you.

It is helpful to have a copy of the petition with you when you use the program.

You must have the following on your computer:
  1. Adobe Flash to see the program. Get it now for free.

  2. Get Adobe Flash Player 

  3. Microsoft Word to see and print the completed court forms properly. If you don't have Word, you can download Word Viewer now for free.

  4. Get MS Office Word Viewer
Go to the Tenant Affidavit to Vacate a Default Judgment program.

Rotating Rainbow Beachball Problem--Randy Singer

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Randy Singer has created this Web site to comprehensively help users who have suddenly found that their Macintosh has slowed down noticeably, and it is often exhibiting the rotating rainbow beachball cursor.

Randy says that it isn't at all "normal" for a Macintosh to slow down or exhibit rotating beachballs. Indeed, it isn't even what he would call "common." If your Mac is doing this, there is something wrong, and the problem needs to have some troubleshooting done so that the problem can be fixed. And the problem can always be fixed. There is nothing inherently wrong with OS X, the design of any particular Macintosh computer, etc. However, as with any computer, it's possible for an individual Mac to experience the odd software or hardware problem that needs to be sorted out.

That said, very recently a surprising and unexpected number of users have been experiencing rotating beachballs, slowdowns, and in some cases accompanying instability with their Macs. (Let's call this a RBB problem for short.) This tends to show up in several distinctly different sorts of situations, and it is important to try and determine which one you fit into for more efficient troubleshooting of this problem:

- You recently upgraded to a new version of OS X

- You recently installed software that required an installer to install, and it installs low level software components and/or kernel extensions. (e.g. anti-virus software)

- You have an older Mac (or a even a brand-new Mac), and you haven't done anything to it and the problem started out of the blue.

- You only have the problem in your Web browser; or primarily in your Web browser.


For the rest of Randy Singer's very useful "how-to" article, click here.



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R.E., M.E., et al v. NYC Dep't of Education-Expert Analysis by John Farago

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John Farago:  Administrative Law Judge (Impartial Hearing Officer), New York State Department of Education (1982-2012); State of Indiana (1980-82). I regularly serve as an impartial hearing officer pursuant to the federal Education for All Handicapped Act and the New York State Education Law and implementing regulations that govern the evaluation and placement of handicapped children. Have conducted well over 300 hearings . I teach a course that brings law student observers into the hearing process. In addition. I have twice been appointed on an ad hoc basis to serve as an independent fact finder for the Board of Education, and have designed and conducted training sessions on recent legal developments in special education for the approximately 20 hearing officers certified to hear NYC cases.  See full C.V. here.


In R.E. v. NYC DoE, the Second Circuit answered many questions about the availability of reimbursement as a remedy for defects in a child's special education program as defined by his or her IEP, but perhaps opened an even larger number of as yet unresolved questions within the circuit about the availability of the remedy for defective implementation of a valid IEP in a particular placement.  In doing so it resolves, for the Circuit at least, a tension between the often-disregarded clear holding in Rowley that the first order of inquiry - and the first line of protection of the rights afforded by the IDEA - must be into whether the Act's procedural protections have been followed, and the perhaps over-relied-upon premise in Schaffer v. Weast that school districts should be accorded the benefit of the doubt when crafting proposed educational programs for the children they serve.

The result, among other things, is a petition for rehearing en banc by the parents in R.E. arising from what they assert are five distinct problematic holdings in the case.

The implicit premises of R.E. appear to draw two bright lines, though neither is expressly articulated: The case focuses almost exclusively on program rather than placement, and it focuses almost exclusively on reimbursement rather than other remedies.  Yet, because it addresses specific narrow factual issues about both placement-related and non-reimbursement remedial orders, it may be interpreted, in my view wrongly, to stand for the conclusion that no remedy is available for defective implementation of a valid IEP.

Here's how I see what the decision actually holds:

In order to be eligible for reimbursement as a remedy for a defective IEP, a district must have had both notice - presumably in the form of a due process Complaint - and an opportunity to cure the problems alleged by the parents who seek reimbursement - by means of the 30 day resolution period.  The Court thus implicitly embraces Justice O'Connor's conclusion in Schaffer that although parents may ask courts to "to assume that every IEP is invalid until the school district demonstrates that it is not[, t]he Act does not support this conclusion . IDEA relies heavily upon the expertise of school districts to meet its goals."

Thus, if a parent believes that a CSE has proposed an IEP that does not offer FAPE, they must tell the district what their objections are and allow the district to cure them before they can count on having an IHO order reimbursement for an alternative unilateral parent placement.  If the district modifies the IEP in the resolution session, the modified IEP becomes the one that the district must defend even if it was the original proposed IEP that caused the parent to remove the child from the public schools.  Thus, the district has an opportunity to cure the defects identified by the parent, and a parent who places a child in a private school before the resolution period concludes (for example, by continuing the child in a prior year's private placement) runs the risk that they will have to bear the cost of the private placement once the resolution period ends and an IHO (or subsequent review) upholds the resolution-revised IEP.

In short, if the district gets FAPE right - either at the CSE or during resolution - reimbursement is not available as a remedy.

The Court goes on to consider the effect of the actual placement offered by the district from a variety of perspectives that are somewhat jumbled and far less clear.  In large measure the lack of clarity derives from the Court's largely exclusive focus on FAPE and program, its avoidance of identifying placement as potentially also raising the possibility of a defect in FAPE (perhaps because in its eyes all three cases under review were about program defects not actual placement defects), and its failure to connect the various placement-related questions it addresses into a single vision of how placement may affect FAPE.  An implicit cohesive model of the rights generated by IDEA with respect to FAPE does, however, emerge from the case's several holdings:

It considers at greatest length whether an actual placement may be relied upon by the district to cure an otherwise defective IEP.  The Court clearly holds that it may not.  The district's opportunity to cure ends at the end of the resolution period, and a district may not rely on the services or programs actually offered by the placement to address the valid concerns about denial of FAPE raised by the parents in their Complaint.

It also addresses, in a far more limited fashion, whether arguments about the actual placement may invalidate an otherwise valid IEP.  Where the IEP defines a program that provides FAPE, speculative arguments that the district will not in fact deliver that program adequately in the placement it offers, or arguments that the parent was not sufficiently involved in the decision of what placement to offer, do not lead to an award of reimbursement as a remedy for the alleged likely defective implementation.  In making this holding, the Court is coyly silent about whether an ACTUAL failure to implement the defective IEP could result in an award of reimbursement, in part at least because none of the three cases, in the Court's view, make that claim.

Specifically, the Court rejects the parents' claim in one of the cases that the district's past failure to provide IEP-mandated services to children at the specific placement offered may be relied upon as a basis to conclude that it will not do so for a child for whom it has drafted an appropriate IEP.  Where FAPE has been offered by the end of the resolution period, that is, Justice O'Connor's notion that districts should be given the benefit of the doubt and allowed the opportunity to deliver the services they offer before a parent may demand reimbursement for a failure to do so.

In light of the limited factual context, in my view the Court leaves open the possibility - and in my view the necessity - that reimbursement may be available if the district actually fails to implement the IEP properly in the placement it offers.  That conclusion is one of the fundamental premises not only of Burlington/Carter awards, but of the original Jose P. plaintiffs. 

But significant questions about the scope of the reimbursement remedy for a placement failure remain unresolved after R.E. and even appear to be freshly opened to a scrutiny that may have seemed settled before it:

The Rowley question of how substantial a failure must be to justify award of reimbursement (raised in Rowley around the question of procedural defects and addressed by courts and by the statute to say that only those procedural defects that rise to a denial of FAPE or of parental opportunity to participate in the CSE review may constitute a basis for reimbursement) remains open.  While the court echoes the existing law about procedural defects, it almost stops short of addressing substantive defects in the placement itself.  Is a failure to provide related services sufficient basis for reimbursement?  How about the situation that arose in one of the cases under review (the absence of a BIP)?  The court concludes that in that case, where the child was not actually attending, the absence of a BIP prior to enrollment did not invalidate FAPE (treating it as a procedural defect).

Does this mean that a child must enroll in a placement and try it out before alleging actual defects that amount to a denial of FAPE?

Is it ever possible to argue prospectively (before the actual placement starts) that the specific placement offered by the district will not provide services?  Surely the case stands for the premise that the district must be offered the opportunity to cure such alleged defects via a resolution session.  But if it fails to do so on the face of the program it continues to offer, may the parents seek reimbursement based on arguments about that placement (rather than about the IEP's program)?

The Court appears to make it far more difficult to allege a deficit in actual placement in a case where the IEP is deemed appropriate under Rowley than perhaps we have accepted by way of parent arguments in the past.  And yet, because it need not and does not reach these questions, for me at least there must remain a potential remedy for defects in an actual placement even where the IEP seems appropriate.  These will be easiest to rule on where the parent has placed the child in the district's program (but even there the Court concludes that simple failure by the child to learn in that program does not invalidate, for reimbursement purposes, an IEP that otherwise meets Rowley standards).  But there surely are circumstances in which we may find that a district's program as revealed in the testimony we hear does not in fact implement the IEP we deem appropriate, even after the district has had the opportunity in resolution to cure those defects.

On the other side of the fence, the R.E. Court, in my view, breathes new life into the Rowley holding that the first essential inquiry must be whether the procedural protections of the Act have been adhered to.  While it reiterates the notion that these defects must amount to a denial of FAPE to justify reimbursement (and concludes, inter alia, that lack of an FBA does not necessarily do so), it also distinguishes the holding in T.Y. (in which the Court notes that it upheld an award of additional services to augment an IEP that had nonetheless been deemed to provide FAPE even without those services).

I think there is only one way this dicta can be read: Reimbursement as a remedy is held to a higher and more limited standard than other equitable remedies, in particular than the curing of procedural defects or the addition of servces deemed 'necessary' in R.E. even though the IEP was held to have offered Rowley-defined FAPE.

Thus, we are in effect invited to order remedies that reshape the child's actual programs and services even where we conclude that Rowley FAPE has been offered.  How can this be possible without overturning Rowley?  Presumably (and it is, to be sure, only my presumption) under that neglected first prong of Rowley - enforcement of the IDEA-mandated procedures.  We can conclude that an IEP is procedurally defective if it offers FAPE but does not fully meet a child's needs, and we can correct those violations of both practice and program, even if we can't order reimbursement for a private placement where a program that meets Rowley's minimal substantive standard of being reasonably calculated to afford educational benefit.

Read in this light, the decision in R.E. is not an unreasonable set of conclusions, though it does appear to me at least to be a rather conservative and constraining one.  In order to obtain reimbursement as a remedy, a district must be afforded notice and an opportunity to cure a defective IEP by the conclusion of the resolution period.  If it does so, it is not liable.  If it does not, even if the placement it offers does actually subsequently cure those defects, reimbursement is called for.

When there is a valid IEP, however, actual defects in implementation could conceivably justify a reimbursement order under the proper facts (facts that were not present in any of the three cases reviewed in R.E. and that are not defined by the holding of that case).  More significantly still, non-reimbursement remedies are available for defects that do not rise to the level of a denial of FAPE, and for deficits in actual placements, even if reimbursement is not.

Such a reading of the holding both views it as clarifying and as breaking some new ground, without grossly overturning any previously clear reading of the law.  Still, there is much that could be subject to appeal or refinement in future cases (especially with regard to implementation defects).  

1.    The ruling that parents may not rely at hearing on evidence that the child did not subsequently make progress if and when they accept the district's proposed placement to demonstrate that the IEP failed to offer FAPE.  In my view the R.E. ruling is limited and not necessarily wrong, precisely because it is limited: The parents may not rely on that evidence for that purpose, but the Court seems to me to allow admission of that evidence to support a showing of what the child's actual needs were at the time the placement started.  Because the CSE could not have had that knowledge when it met, it is not sufficient to constitute a showing that the IEP was defective as drafted (in light of what the CSE could have known), but it can be used both to contribute to a clinical understanding of the child and to document defects in the actual placement's delivery of the IEP program.  Gary is likely correct to seek clarification of this matter because these conclusions are far from clear in the R.E. decision (and in their absence the decision is, in my view, problematic).  But whether this will come within the four walls of R.E. or from subsequent litigation remains to be seen.

2.  The Court's conclusion that lack of an FBA, of a BiP, and of mandated parent training on the IEP are procedural violations that in these cases did not amount to a denial of FAPE.  Gary argues that these are beyond procedural defects and speak to the substance of the child's program.  In my view, described above, the Court holds in R.E. that defects of this sort do not arise to violating the Rowley standard for FAPE, but could be predicates for IHO- or court-mandated relief other than reimbursement.  If I'm right, that's not great for many of Gary's clients, but it would address the fact that he is right to argue that the Court appears to give short shrift to these significant substantive lacunae in the chilren's programs.

3.  The Court's conclusion that the parents' allegations that the district's past practice frequently denied mandated services to children at the actual proposed placement.  Gary argues, I think correctly, that this fails to take adequate account of the NYS allocation of burden of proof - that once this reasonable concern was alleged in the Complaint, the district had the burden of showing that it would not be the case in this child's specific placement.  To the extent that the argument is limited to this procedural claim about burden of proof, and to the extent that the record did not support the district's argument that its placement could offer the services on the child's IEP, it seems well-founded to me.

4.  The conclusion that the district may cure any defect by changing its offer at resolution.  Gary argues that if a parent provides the mandated 10-day notice and a district fails adequately to respond, the district should not be allowed to cure the alleged defects subsequently, during resolution.  In my view, that's a matter for appeal, not clarification.

5.  The Court's extension of the ruling in T.Y. to the effect that parents are simply not entitled to participate in actual placement determinations.  Gary argues that the R.E. court goes a good bit further than the T.Y. court in ruling that parents have no right to participate in those decisions, and he appears to me to be correct.  But it also appears to me (a) that the decision is not inconsistent with T.Y. but rather that T.Y. is included within the broader R.E. holding; (b) that the Sevond Circuit does seem to be drawing this bright line in the sand to the effect that there is NO parent role in placement decision-making under the law; and (c) that the Circuit appears to be ignoring significant law and regulation in reaching that conclusion and that justifies further review/appeal of the matter even if the Circuit proceeds as it appears to be doing.  Its current holding, however, is binding on us even if I'm not crazy about it, of course.
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COURT TECHNOLOGY and TRIAL PRESENTATION: TrialDirector for iPad

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Ted Brooks is out with one of the first reviews of this new, FREE trial presentation app:

Released just today, TrialDirector for iPad is a free app, available now at the iTunes storeOnce you've started your download, come on back and read the rest of his review. Brooks says "...you don't need to spend a lot of time comparison-shopping before making this decision - even if you already own another trial presentation app..."



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Internal Revenue Service

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As you may have noticed, the IRS has made extensive changes to the look and functionality of the IRS.gov website.  These changes aim to improve online services for all stakeholders with the best content and Web experience that the IRS can offer.

The new navigation is one of the most significant changes users will see on IRS.gov.  While the home page looks similar, there are new colors, new headings and a completely new way to navigate the site.  To maintain a measure of continuity between the old and new, you'll find a menu list in the upper right-hand corner called "Information for..." that incorporates virtually all content from the old site under familiar headings such as "Charities and Non-Profits," Government Entities," "Retirement Plans" and "Tax Exempt Bonds." Alternately, you can always use the web address irs.gov/govt typed directly into your browser's address window to access the page.

If you bookmarked pages in the old website, check the redesigned site and update your bookmarks and favorites.  A new feature on every page gives you the option of clicking a heart graphic to save the page as a bookmark.



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Spend More Time at the Bar « Philly Law Blog

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http://phillylawblog.wordpress.com


Echoing Sam Glover's article on Lawyerist, the most common question I get from other lawyers is: "Man, I've been reading your blog and I love it. But do you make money off of it? Do you make money off Facebook or Twitter?"

The answer: no, but kinda sorta.

This is how it works...

Read Philly Law Blog's practical, down-to-earth analysis and suggestions about using social media in your practice here.



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