class action

Special Education Complaint Delays Spark Federal Lawsuit

131 Livingston St. in Downtown Brooklyn, where Special Education impartial hearings are held.
131 Livingston St. in Downtown Brooklyn, where Special Education impartial hearings are held. 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’s special education complaint system is buckling under a glut of unresolved cases, with delays routinely violating students’ civil rights, according to a new class action lawsuit.

The city and state education departments — which both have roles overseeing the complaint system — have “acted with deliberate or reckless indifference” to students’ rights, says the federal lawsuit filed Friday by the New York Legal Assistance Group and the law firm Sullivan &  Cromwell.

Families 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, and their cases are required to be resolved within 75 days.

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.

’A Severely Broken System’

The city faces more than 10,000 open complaints, nearly 70% of which have blown past the legal deadline for their resolution, forcing families to wait months or even years before receiving the special education services they’re entitled to, according to the complaint.

“Despite knowing about these delays for years, the defendants have failed to repair [the city education department’s] severely broken hearing system,” the lawsuit says. “The price for this dysfunctional system has been paid by New York’s most vulnerable residents.”

Filed on behalf of five families who have experienced delays, the lawsuit represents an escalation from advocates, who have repeatedly called on city and state officials to take more dramatic action. But despite those pleas — and even a state corrective action plan directed at the city — there are signs that the situation has only become more dire.

The city’s education department has been inundated with a growing number of cases with complaints doubling over the past five years. These challenges are reviewed by an independent hearing officer, under a process that by law is supposed to take no longer than 75 days from the moment a complaint is filed until a decision is issued. But the average amount of time it takes to resolve a case has ballooned to 259 days, a 74% increase since the 2014-15 school year.

Advocates said the delays are especially hard on low-income families, who are unable to pay for services out-of-pocket and hope the city reimburses them later, a common practice among more affluent families.

“They don’t have the money to put up front to get the services, so they’re disadvantaged far worse,” said Nelson Mar, an attorney at Bronx Legal Services, which represents low-income families.  “The laws are very clear that this process is supposed to happen quickly. When it doesn’t happen, these children are severely impacted.”

Still, even if a family finally makes it to a hearing — and wins — the education department routinely continues to delay services, a practice that is the subject of a separate legal complaint.

“Every step in the process really is broken,” said Rebecca Shore, the litigation director for Advocates for Children.

The class action lawsuit points to several reasons delays have mounted. The city typically requires families to go through a hearing process just to maintain a student’s current special education services while the complaint winds its way through the system. A state report said the practice violates federal law and causes hundreds of additional hearings.

Another big reason: There is a shortage of hearing officers willing to take on cases, partly because the rates they’re paid are relatively low. Although there are 69 hearing officers certified to take cases, many have often refused to take on new cases. For long stretches, only one hearing officer was taking cases and wound up with 1,713 open cases on his docket, Chalkbeat and THE CITY previously reported.

The state education department is responsible for overseeing the program, including hiring hearing officers and setting a maximum pay rate. But the city is responsible for administering the hearing office and typically pays officers for set tasks, such as writing an opinion.

Officers sometimes end up earning less than half the $100-per-hour maximum set by the state for certain tasks, a disincentive for taking on complex cases. The pay rate hasn’t increased in 18 years, officials have said. To recruit more hearing officers, the state is considering dropping the requirement that they have law degrees.

Most Recent Fixes Already in Dispute

The city’s education department on Friday issued a new compensation policy for independent hearing officers in a bid to address long-standing concerns about the low pay rate.

The changes, which went into effect Monday, doubled the administrative fee paid to hearing officers from $100 to $200 per case, introduced travel and lodging reimbursements in certain instances, and created a tiered scale that pays out more for decisions in complex cases.

The policy also offers a 10% bonus for any final decisions reached over the next 60 days as a way to incentivize a quick reduction in the backlog of open complaints.

But less than one business day after announcing the new compensation plan, administrators in the education department’s impartial hearing office sent out an email that said, “We are learning that some hearing officers have concerns with the policy.”

The note included a November 2019 memo from the State Education Department that reminds hearing officers that they can only recuse themselves from taking a case in “limited circumstances.”

The email reviewed by Chalkbeat and THE CITY included a link to an online survey and an offer by city and state education officials to meet with hearing officers later in the week.

“In the meantime, we are confident that hearing officers will continue to fulfill their ethical obligations with respect to hearing cases,” the email said. State education officials declined to comment on the lawsuit.

At a state budget hearing Monday, state Sen. Robert Jackson (D-Manhattan) and other lawmakers pressed Mayor Bill de Blasio on why there were more than 10,000 open special education complaints.

“The number of those cases has been steadily reduced,” the mayor answered.

In response to questions about which reduction the mayor was referring to, city officials said he was highlighting the elimination of a separate backlog of nearly 1,200 completed cases as of November that hadn’t been processed by the city education department.

The mayor also pointed to a $2 billion funding increase for special education services — from $5.2 billion in 2014 to $7.2 billion in the current fiscal year — as proof of his administration’s commitment to resolving long-standing problems.

“Please make sure you put as many staff there in order to deal with those [outstanding] cases,” responded Jackson. “This is extremely important for the parents of the thousands and thousands of students with IEPs.”

In a statement, city education department spokeswoman Danielle Filson said: “We are working closely with the state to make this process better for families including updating and expediting the pay policy for impartial hearing officers, adding staff to process cases faster, completing more settlements, and eliminating case processing backlogs.”

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