schools

A Call to End Special Education Hearing Delays Amid ‘Harm’ to Students

Eliyanna Kaiser and her 7-year-old son, who has autism, watch for Amtrak trains near their Hell’s Kitchen home, Oct. 14, 2019.
Eliyanna Kaiser and her 7-year-old son, who has autism, watch for Amtrak trains near their Hell’s Kitchen home, Oct. 14, 2019. Photo: Ben Fractenberg/THE CITY

This is part of an ongoing collaborative series between Chalkbeat and THE CITY investigating learning differences, special education and other education challenges in city schools.

The city education department’s inability to meet legal deadlines for resolving complaints filed by families of special education students is causing “material, demonstrable harm” — and requires an immediate fix, advocates say.

Reps from seven public interest organizations sent a letter Tuesday to top education officials charging that the department for years “has woefully failed to meet its obligations” to address special education complaints.

The group is demanding a meeting with state and city education officials to spur  “immediate action” to resolve the crisis.

“These delays disproportionately affect low-income children whose families do not have the means to pay for the services they require on their own while waiting for their claims to be processed,” the advocates wrote in a letter to the state education commissioner and New York City schools chancellor that was obtained by Chalkbeat and THE CITY.

The signatories include Legal Services NYC, The Legal Aid Society, Brooklyn Defender Services, and Advocates for Children.

A ‘Staggering’ Number of Complaints

As THE CITY previously revealed, a report commissioned by the state found in February it was “remarkable” that the system for adjudicating special education disputes had not yet collapsed “given the staggering numbers of due process complaints filed in New York City.”

In recent years, the city’s education department has been inundated with a growing number of cases. Complaints over the past five years more than doubled to 9,695, according to city data.

These challenges are reviewed by an independent hearing officer, under a process that by law is supposed to take under 75 days — but which stretched 225 days on average last school year, according to the February state analysis.

The report faulted low pay and delayed payments for hearing officers — prompting few to take the job amid a rising number of complaints — along with mismanagement and understaffing at the Department of Education, and other factors.

Eight months later, advocates contend that city and state officials are not moving fast enough to bring the system back from the brink.

Families whose children aren’t receiving mandated services, whose requests for additional services are denied by schools, or who believe their child’s academic setting is inadequate have a legal right to file a complaint with the city’s education department.

This can include a case where a student isn’t receiving physical therapy sessions that are listed on her Individualized Education Program, a legal document known as an IEP — or a case where parents are seeking tuition reimbursement for a private school because no public schools offer the required services.

Advocates say that spike in cases, which was sparked in part by a commitment by Mayor Bill de Blasio in 2014 to challenge fewer tuition reimbursement cases, has left their clients languishing.

Families Desperate for Help

The family of Zachary Wang, a pseudonym for an 11-year-old with autism who is three grades behind in English, filed a due process complaint in February that has since been passed among hearing officers like a hot potato because of their busy schedules.

It was only in late August that education department lawyers reversed their opposition to the family’s request for a 1-on-1 tutor and agreed to settle. Yet nearly two months later, Zachary still has not received the promised services.

“If the DOE doesn’t give appropriate help at this time, it’s going to harm this child,” his grandmother said through a translator provided by Bronx Legal Services. “We just hope we can get help for this child as soon as possible.”

Manhattan mom Eliyanna Kaiser has been waiting since July for a hearing officer to rule on her request for additional speech and behavioral therapy for her 7-year-old son, who has autism.

She had made a similar request for services last year and the education department said it planned to settle, but never did so — prompting this summer’s complaint.

Since then, three separate hearing officers have been assigned and recused themselves because of workload issues. Last week, the third hearing officer was assigned and recused himself because “he is unable to conduct the hearing in a timely matter,” according to an email. That same hearing officer was immediately reassigned to the case.

“It’s confusing, it’s never-ending, it’s highly stressful,” Kaiser said of the process.

Advocates have proposed a series of fixes, such as urging the state to hire more hearing officers and boost their pay, and for the city to use mediation more frequently to resolve disputes and cut the red tape that contributes to delays.

State Education Department officials say they sought to triple the maximum hourly rate of hearing officers from $100 to $300 per hour earlier this year, but that the state Division of Budget denied the request in July. The officials noted that the pay rate hasn’t been increased in 18 years.

Complicating the matter, the city typically pays hearing officers a set rate per task, rather than an hourly rate — a practice that the state Division of Budget said results in payments as low as $40 per hour for some tasks, according to the February analysis. They noted the analysis didn’t recommend hiking the maximum hourly rate.

City Education Chancellor Richard A. Carranza, with Mayor Bill de Blasio.
City Education Chancellor Richard A. Carranza, with Mayor Bill de Blasio. Photo: Ben Fractenberg/THE CITY

State education officials also said they’re actively hiring more hearing officers to join the current city rotation of 70, and have received applications from 17 candidates since August. However, the earliest any recruits could begin training is in January, officials said.

City education officials say they’ve also taken steps to address the crisis, including by hiring 60 staffers — at least 44 of them lawyers — and naming a new director of the impartial hearing office. They said cases are proceeding more quickly this year, but it’s not yet apparent because of the backlog and volume of new complaints.

City education officials said they’ve also made improvements to the physical space in downtown Brooklyn where the hearings are held, including by freeing up three rooms to hold hearings and creating space for private consultations.

They said they’re working with the State Education Department to revise the pay practices for hearing officers.

Asked when the education department’s actions would begin to bear fruit, Chancellor Richard Carranza said parents can expect things “to consistently get better.”

“The sheer number of those cases has increased exponentially over the last four years so we’re taking them on,” he said Wednesday during an unrelated appearance at a Brooklyn school.

“We’ve already seen a much better response rate. We’re not satisfied with where we are, but we do have plans and we are adding personnel, we are streamlining our processes — and our goal is that we will be right on time with all of those in the very near future.”

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