By Nick Niedzwiadek
The New York City school system is failing thousands of students who need special education services, according to lawmakers, advocates and multiple lawsuits. And a six-story brick office building in downtown Brooklyn has become a microcosm of its dysfunction.
Parents and guardians trek to the building, a Department of Education site at 131 Livingston Street, when seeking to force the city to provide services required in a student’s individual education plan or to pay for a child’s tuition at a private school if the public school system cannot meet those needs.
But that process has been beset by a host of problems, ranging from insufficient space to hold hearings, too few people willing to adjudicate these matters, packed calendars that too often fall hours behind schedule, facilities that lack privacy and rooms that are either overheated or too cold, according to a damning report commissioned by the State Education Department last year.
And so, according to parents and others navigating the system, a space intended to offer relief to families seeking special education services has instead become another part of the problem.
“They’re not providing a professional environment,” said Steven Alizio, a Manhattan-based attorney who specializes in special education law.
This week the SED is expected to present the Board of Regents, the powerful body that steers education policy in New York, with a list of actions the agency and the city DOE are taking to tackle the issue. The Regents will also consider a slate of potential regulatory changes, including allowing video conferencing and permitting out-of-state attorneys to serve as hearing officers and non-attorneys to handle these cases.
The city says it has added more staff and programs to build out its services, and that it is committed to continually improving the public school system, which serves roughly 200,000 special education students.
“We are working closely with the State to make this process better for families including updating the pay policy for impartial hearing officers, adding staff to process cases faster, completing more settlements, and eliminating case processing backlogs,” DOE spokesperson Danielle Filson said in a statement. “We recognize we have more work to do to serve every family quickly and thoroughly but we are glad we have made so much progress over the past year and a half.”
Complaints against the DOE have surged in recent years, swamping the dispute-resolution system with cases that administrators have neither the capacity nor personnel needed to keep pace, leading to delays that have exasperated parents, attorneys and special education advocates and left students without critical special education services for months on end.
“A lot of times it feels like you’re smacking your head into the wall,” Alizio said. “It is baffling. There needs to be some very comprehensive reform, but it’s not clear how to do that.”
More than 7,600 due process complaints were lodged in New York state during the 2017-2018 school year, an indicator of parental dissatisfaction with the provision of special education services that makes the state a glaring outlier nationally, according to data presented to the Board of Regents in January. By comparison California, Florida, Illinois, New Jersey, Pennsylvania and Texas combined for fewer than 8,000 such complaints.
New York City is home to about 40 percent of the state’s schoolchildren overall but accounts for more than 96.4 percent of complaints across the state between the 2014-2015 school year and mid-January, 2020.
“Make no mistake: this is a civil rights crisis,” said New York City Council Member Mark Treyger, who heads the chamber’s education committee. “The whole point of these early intervention processes is to provide children with the support they need.”
As a result there are now almost 10,200 open cases in New York City — two-thirds of which have gone on for longer than the 75-day timetable afforded under the federal Individuals with Disabilities Education Act — and its average case length of 259 days is nearly twice that in the rest of the state, according to the state data from January. (DOE says there are 9,670 open hearing cases, according to more current figures.)
“I think that every step in the process is really broken and as a result the backlog has kind of snowballed into itself,” said Rebecca Shore, director of litigation at Advocates for Children of New York, a nonprofit legal and advocacy organization.
At least two federal lawsuits have been filed in recent months challenging the system and seeking to force DOE into compliance with the federal disabilities act and other applicable laws.
“It’s been a troubled system for a long time, but it’s come to a point where it’s really imploding,” said Elizabeth Curran, staff attorney for the New York Legal Assistance Group’s special education unit, which filed a suit in early February on behalf of five students with disabilities. “It’s really hurting the families who are not yet receiving services they need and can’t pay out of pocket upfront and seek reimbursement later.”
These students’ cases have faced repeated delays because of the shortage in hearing officers who serve as quasi-judges in these disputes, according to the complaint. “The price for this dysfunctional system has been paid by New York’s most vulnerable residents: preschool and school-age children with disabilities that affect their ability to learn,” it states.
There are only about 69 hearing officers working part-time in New York City, and some have been refusing to take on new cases due to the existing workload. More than 1,300 of the nearly 10,200 cases did not have a hearing officer assigned, according to the January Board of Regents presentation.
DOE and SED have been working on improving compensation for these officials — a long-standing complaint from hearing officers, some of whom have also contributed to the problem by loading their schedules to maximize payment — and SED has told hearing officers that they should only be recusing themselves in limited circumstances such as conflicts of interests.
Officers in New York City are paid set fees for certain tasks — rather than an hourly rate — and about half the hearing officers made less than $50,000 for their work in the 2018 fiscal year, although three others took home more than $150,000, according to the 2019 SED report.
An idea floated at the January Regents meeting would allow people other than attorneys, perhaps on a temporary basis, to serve as hearing officers as a way of expanding the pool of potential candidates. Most states require hearing officers to be lawyers, but it’s not mandated under federal law, although multiple attorneys who represent students in these cases said it presents a host of problems.
“Making it temporary kind of acknowledges that it’s not appropriate,” Alizio said. “If it were, then it would always be like that.”
Part of the concerns of special education attorneys stem from a lack of trust in city officials who allowed the problem to fester for years.
“I don’t think they have to be lawyers,” said Jane Stevens, NYLAG’s co-director of special litigation. “If we could have faith in a spectacularly effective training program, then we’d be hopeful. But I don’t think they’re doing that.”
Treyger, a former high school teacher, said special education as a whole needs to be reoriented toward putting educators in these decision-making roles.
“You have bureaucrats and attorneys making so many decisions when they themselves have never spent a day in the classroom,” he said. “This system has been entrenched for years, but we have to confront it head on.”
Special education advocates say payment problems extend well beyond just the hearing officers. They say that DOE can take months to reimburse neuropsychologists for the time-consuming evaluations used to determine a child’s individual needs, one of the earliest steps in the special education process. Stan Royzman, a neuropsychologist in New York City, said doctors can get paid much quicker if they’re on the department’s list of approved providers, but for thousands of dollars below the market rate.
“I have heard of doctors who are not taking new cases because of DOE’s delays,” Royzman said in an interview. “You can’t carry a caseload of DOE clients if you won’t be reimbursed for many months. You can’t pay your overhead and other expenses. Your business is going to fail if you’re in that position.
Royzman said the process creates problems for smaller practices, which need to take on a mix of private-paying cases — the evaluations are rarely covered by insurance — to make the math work.
The more the process bogs down, the gap between low-income families and wealthy ones becomes more pronounced. Those with money have the option to hire lawyers, neuropsychologists and other experts to help them build their case, or pay for pricey private schools with tuition that can exceed six-figures and seek reimbursement from the city.
That can leave poorer students mired in inadequate school settings as their development stagnates, while peers in richer families are able to access the proper special education services.
Special education was an area in which Mayor Bill de Blasio sought to differentiate himself early on from his predecessor, Mike Bloomberg, who staffed up on lawyers to scrutinize cases where parents were seeking placement in a private school at the city’s expense.
The Bloomberg administration believed that doing so would keep money from flowing out of public schools and allow the city to improve its special education system, but de Blasio argued that was unduly adversarial, particularly for those who could not afford lawyers who could go toe to toe with the city, and made “family-friendly” changes in mid-2014 applauded by many special education advocates at the time.
However due process complaints and the number of students enrolled at private schools on the city’s dime rose significantly in the following years, costing hundreds of millions in additional tuition payments, and advocates are now saying the benefits of de Blasio’s changes have since been wiped out by the system’s deterioration.
“Realistically if it had worked like it was set out in the policy, it would have been great,” Shore said. “The problem is DOE has never really complied with the policy or the timelines in the policy.”
Originally published in Politico on March 3, 2020