June 7, 2023, The74: Due Process, Undue Delays: Families Trapped in NYC’s Decades-Long Special Ed Bottleneck https://www.the74million.org/article/due-process-undue-delays-families-trapped-in-nycs-decades-long-special-ed-bottleneck/
Disabled children had their day in court 20 years ago and won. Now, families still wait for NYC schools to comply with impartial hearing orders
On December 13, 2022, Lorena Garcia got an email she nearly, reflexively deleted. It was a form letter from an auditing firm telling her the New York City Department of Education had violated her son’s rights. This was hardly news to Garcia, who for years had been battling to get the district to accommodate Vincent, who is now in sixth grade.
The boy is dyslexic and has a disorder that prevents his eyes from working together — a combination that requires intensive and specialized therapy and instruction. Since kindergarten, Garcia has toted medical records and other documentation of Vincent’s needs to meeting after meeting. But the district never found him an appropriate school, so eventually Garcia did that herself.
Now, here was an anonymous auditor confirming that despite a fistful of favorable decisions from the people who preside over special education disputes — known as independent hearing officers — the district had all but entirely failed to reimburse her thousands of dollars for Vincent’s private school tuition.
Garcia, whose name and the name of her son have been changed to protect the child’s privacy, says that at first she thought the email was fake. “It was the first time anybody ever said anything that had happened was wrong,” she says. “Everyone up until then had just been like, ‘Oh, well.’ ”
She felt a glimmer of optimism, Garcia says, but also steeled for it to be one more episode of false hope.
Special education is notoriously fraught in many school systems, but the magnitude of the problem in the nation’s largest district, New York City, boggles. The department is supposed to educate nearly a quarter of a million children with disabilities — a population that in 2019 was larger than the entire student body of all but seven U.S. school districts. In 2020-21, nearly 21% of New York City’s roughly 1 million schoolchildren received special education services, compared to a national average of 15%.
By all accounts, the Department of Education every year fails to meet even basic obligations to tens of thousands of children with disabilities. Stretching back two decades, numerous lawsuits and state audits have flagged the same problems over and over. Just this week, it was reported that 9,800 children — or close to 37% of NYC preschoolers with disabilities — did not receive all of their required services, and in March, it was revealed that 64% of bilingual special education students did not….
Currently, there are some 2,000 families who won their cases in front of an independent hearing officer only to have the Department of Education fail to comply with the resulting decisions.
The NYC Department of Education did not respond to The 74’s multiple requests for comment for this story. Lawyers and advocates who have followed the district’s attempts to improve its due process pipeline say it recently has added staff in an effort to clear the backlog, but basic failings persist….Vincent was years from being born when a court first ordered the district to revamp its handling of the hearing officers’ orders. In 2003, Advocates for Children, a nonprofit
that works on behalf of disadvantaged NYC children, filed a class-action lawsuit, L.V. v Department of Education, over the problems with the hearing officer system. The suit originally encompassed nine students and now includes the thousands who are essentially in the same predicament as Vincent.
“All I can say is that I have been doing this since 2012 and there’s a new problem every year,” says Bonnie Spiro Schinagle, the special education attorney who represents Garcia. “It doesn’t seem like anyone has really put organized thought into this, identified problems, identified solutions and then figured out a pathway to implementing them. They just haven’t.”
The litigation was supposed to force the DOE to begin complying more promptly with orders issued by hearing officers. There has been little progress though and in March, a special master — a court-appointed overseer tasked with tracking the district’s compliance — issued a 127-page report containing 75 recommendations and a warning: The overhaul still would take years to complete.
Unstopping the bottleneck will require such wholesale transformations, the report says, as the department moving a process that now often involves handwritten documents online and making itself a more attractive, competitive employer — not just to the special educators and therapists who are in desperately short supply — but to the administrative staff who process hearing orders and invoices.
It’s the latest in a long line of attempts to impose timeliness, responsiveness and efficacy on a system with a protracted history of being resistant to all three.
‘The reality is people have been waiting for years’
Garcia knew very little of this context when she received the December email that seemed too good to be true. The auditor, whose appointment was part of the 20-year-old class-action lawsuit, suggested that she ask her attorney to file a federal lawsuit. The email included an attachment the auditor said would serve as evidence substantiating her claim. Garcia called Spiro Schinagle, who said she was already preparing civil complaints for a number of families who had received similar emails. The lawyer added the Garcias to her list.
Well-worn federal civil rights law is clear regarding situations like theirs: If a school system can’t serve a child with disabilities, it must pay for a program that can. Vincent’s mother enrolled him at a private school in Queens serving a small number of children with learning disabilities like her son’s.
His tuition changes from year to year, but has hovered around $44,000 a year, according to court documents. If that sounds steep, it includes the cost of services school districts frequently struggle to provide in a cost-effective manner.
So far, in each school year the family has been forced to pay some or all of the tuition, pending a response from the DOE bureaucracy. Not including the 2022-23 school year, the Garcias are owed at least $27,324, plus attorney fees, according to court filings The reality is that people have been waiting for years to get the orders to get the services their children need.
As the U.S. Individuals with Disabilities in Education Act requires, the district is supposed to serve children who need special education services along a continuum ranging from individualized help in a regular classroom to the kind of specialized placement Vincent requires. NYC students whose needs can’t be met in a typical school are often referred to District 75, a portfolio of separate DOE schools created to offer more intensive support.
When there is a disagreement about a student’s proposed Individualized Education Program — the legal document spelling out their required services — the dispute goes before a neutral arbiter. An impartial hearing officer — someone trained and paid by New York state — must be assigned within two days and the case heard in two weeks or less.
The entire process should take no more than 75 days. But Garcia’s experience of having it drag on is common.
“The reality is that people have been waiting for years to get the orders to get the services their children need,” says Rebecca Shore, director of litigation at Advocates for Children. “It’s not an issue of resources being available. It’s an issue of kids getting the services they need.” Advocates and attorneys who represent special education families in New York City are quick to assert that the bottleneck — getting the DOE to comply with orders issued as the result of a single type of due process hearing — is a symptom of the much bigger problem.
In 1979, a group of families sued the department, alleging that it failed to obey federal laws requiring the evaluation of all children with suspected disabilities and to provide them with appropriate services. Because the system has never been able to keep up with the need, pressure from that lawsuit resulted in a decision ordering the district to pay for a private school for the children it can’t serve. …
“Because we have this gargantuan system, for years the department has had problems hiring enough teachers and offering enough programs,” he says. “There’s a paucity of services. And there’s also a large number of middle-class families who would prefer their kids go to private schools.” …
The bottleneck that’s trapped the Garcia family is growing, according to the 2021-22 annual report of the New York Citywide Council on Special Education. In November 2021, it reported, there were more than 16,000 pending impartial hearing cases, a 34% increase from the year before. Some 9,000 cases had not even been assigned to a hearing officer.
New York City, a separate analysis found, is responsible for 96% of all of the impartial hearings requested in the state. The number of pending cases had not budged by January 2022. Attorneys and advocates predict that the COVID backlog will further overwhelm the system, as the parents of children who may not have gotten needed therapies for years file cases.
The council’s summary of the problems is straightforward: Because families still aren’t getting the services their children are entitled to, cases continue to be filed. Beyond that, there are not enough hearing officers and those that exist get delayed pay. …