Impartial Hearings for NYC Special Education Services Are Not Effective for Parents Making Sacrifices

New York City has been out of compliance of federal special education rules for the past 13 years, according to the state Education Department.

By Laura D'Angelo July 30, 2019

Many parents of the five boroughs say they are struggling to provide their kids with necessary special education services from the city. A May report from the New York City Department of Education revealed that impartial hearings, which are meant to resolve parent disagreements with schools and provide their kids with necessary special education services from the city, have been plagued with complaints of too few hearing officers to be effective. The report found that parents and guardians filed almost 7,500 due process complaints through Feb. 21 of the recently ended school year, and complaints rose more than 50% over the previous three school years. Yoav Gonen reported on this issue for The City.

Amber Decker, a family peer advocate, or someone who has ‘lived-experience’ as the parent or primary caregiver of a child with a social, emotional, behavioral, mental health, or a developmental disability and receives training in order to empower other families, said hearing officers have been ignoring her for three months regarding a complaint she filed on behalf of a parents of a child who attends Public School 40 in Manhattan. This complaint seeks speech therapy as well as paraprofessional services for a first grader. The hearing officers, Decker said, claim they’ve been too swamped and have refused to take on the case 31 times.

“These kids are just languishing waiting for impartial hearings,” Decker told The City. “It’s a disaster.” This has been common amongst various parents who seek special education services for their children.

Usually, parents request these hearings for one of three reasons: Their child either is not receiving mandated services, requires services the school is not willing or able to provide, or needs a different type of setting or school in order to get their necessary educational support.

The City released a survey asking parents and others to reach out and share their experiences with the impartial hearing system. The biggest trend seen in complaints was how time-consuming and difficult it ends up being to get their children the support they need. Parents noted how low-income families tend to be at a disadvantage since they cannot typically afford to hire lawyers to assist them in navigating the hearing system. These families are also unable to pay the money needed for a school or privately provided service up front, in hopes of getting reimbursed afterwards by the Department of Education. Under the federal Individuals With Disabilities Education Act, all children are supposed to be guaranteed a free and appropriate public education.

One mother, who wished to remain anonymous due to a non-disclosure agreement she reached with the Department of Education, told The City that she spent $60,000 on evaluations of her child’s needs, legal fees for an attorney to broker the official complaint, and tuition for a private school where she registered her daughter in August 2018. The due process complaint, which was filed that same month, sought reimbursement from the Department of Education, yet did not get approved for the tuition payments until May. Even with the approval, the mom said the funds have yet to be provided.

This is just one of the sacrifices parents have made in order to provide their children with special needs with the necessary educational accommodations. The mom’s daughter hadn’t been taught to read in the Queens public school she was previously enrolled in by age 7, but learned to do so after one year of being in a private setting for kids with special needs.

“I’ve basically depleted my life savings with legal fees, evaluations and the $41,000 tuition this year,” the mother said, but most importantly, she added, her daughter, ”is thriving – and can finally read.”

Rockaway dad Fred Rodriguez claimed he spent about $14,000 of his savings in order to get his son Connor, who has Down syndrome, out of P.S. 101 in Forrest Hills and into the Tiegerman School on Long Island. Rodriguez said he moved his son out of P.S. 101 after winning his impartial hearing against the Department of Education three years ago.

“We fought for our child since day one, and because of that he has grown to the point where he’s quite high-functioning,” Rodriguez said. “If we would have given up, he would have been a different child. And a lot of parents give up because the city wants to make them run around in circles.”

Rodriguez considers himself to be “one of the lucky ones.”

“If we didn’t have the finances, I would have had too take out a loan – which would have been even more of a financial burden,” he said.

These challenges in obtaining necessary services and reimbursements is nothing new, but rather has been a problem for the city for over a decade. According to the state Education Department, New York City has been out of compliance of federal special education rules for the past 13 years.

In 2014, Mayor Bill de Blasio promised to lessen parents’ burdens by speeding up decisions on tuition reimbursement. The problem with that plan, according to advocates, is that an influx of new cases overwhelmed an already jam-packed and burdened hearing system. The number of complaints jumped to 51% during the following three school years, according to the state report.

From the 2013-14 school year to the 2017-18 school year, Department of Education officials reported that the number of special education students increased from nearly 20,000 to roughly 224,000. School officials said they’ve hired 4,300 more special education staffers over that same period, including 3,000 more teachers, noting that the state Education Department is responsible for hiring hearing officers.

Since the state report’s publication in May, the Department of Education has submitted a corrective action plan to the state Education Department with a strategy to fix the impartial hearing process and the allocation of educational services for children who have special needs. While both agencies declined to provide the plan, Danielle Filson, a spokesperson for the city Department of Education expressed in a statement that improvements are underway.

“The impartial hearing process should be as easy as possible for families, and in the last month we’ve begun replacing the impartial hearing data system and formed a new working group with the state to develop long-lasting improvements,” Filson said. “This builds on hiring more impartial hearing staff and a $3.4 million investment in improving impartial hearing facilities. There is more work to do and we are supporting the state as much as possible to hire more hearing officers.”

Elizabeth Kirk, a mother of three teenagers who have required special education services, said that while she does not entirely blame the schools that lack resources to serve students with special needs, she does put the responsibility on the Department of Education to fill in the gaps. Kirk claimed she has filed at least six due process complains over the years – including seeking repayment for her kids’ evaluations that their Manhattan schools refused to do.

“The problem is they don’t do what they’re supposed to do, so you have no choice but to fight,” said Kirk. “Ultimately, if you can’t hire other people to do it, it’s just impossible to work a full time job and take care of your children’s needs. That becomes your job.”

Mary Delgado, a mother from Queens, recognizes this familiar feeling of stress. For months, she has been transporting her 4-year-old son Joaquin Rodriguez, who has autism as well as medical issues, for therapy sessions in Howard Beach and Rego Park.

The Department of Education would not approve a paraprofessional for Joaquin, so despite the fact that St. Mary’s Special Needs Preschool in Queens had accepted him as a student on the condition he had been provided one, his preschool placement fell through in the fall of 2017.

Delgado said she had not been informed about the Department of Education denying the paraprofessional until she tried bringing Joaquin to the school, where she was told his spot had been given away.

In January of 2018, the Department of Education suggested a school for Joaquin that did not comply with his Individualized Education Program, a legal document known as IEP, so Delgado filed an impartial hearing complaint. She ended up receiving applied behavioral analysis therapy for her son at home, physical and occupational therapy in Brooklyn, and speech therapy in Queens, as well as the occasional therapy sessions at Bridge Kids in Manhattan.

“Normally, kids get all these services at school. But he’s not in school.” Delgado said. “I can’t work. This is my full-time job.”

Fortunately, she will receive some relief on Monday, when Joaquin begins his first real day of school at The Manhattan Behavioral Center. Delgado’s attorney, Elisa Hyman, said that this is a common example of the kinds of battles that parents face with the Department of Education.

“Our clients are experiencing problems across the board,” Hyman said. “We have many clients who have been out of school or in the wrong class for extensive periods of time, missed therapies, did not have their IEPs implemented and were not receiving nursing, paraprofessionals, busing services or transportation accommodations.”

Roughly one out of five city public school students have an IEP. Department of Education officials said they recently added $33 million for new special education services or programs for the upcoming school year, after having spent $5.1 billion in the last school year. This comes from a city school budget of more than $27 billion.