Special Needs Children Continue to Suffer Despite Federal Ruling
Months after the Department of Education was ordered to provide special needs students with their owed services, we spoke to advocates & experts to gain insight on whether the problem is genuinely being resolved.
Of the roughly 1 million students in the New York City School System, as of June 2023, about 200,000 are classified as disabled. Put another way, there are more children classified as disabled in the NYC school system than there are children total in the Maine state school system, and many are struggling to receive appropriate care. Compensatory services, such as counseling, transportation, compensated tuition for private education and more, are provided by the Department of Education to meet the academic needs of these children. Yet, as of 2022, the department could not meet the deadline for providing services to approximately 95% of families who relied on them, a consequence of the department’s long-time dysfunction.
In July of 2023, Manhattan federal Judge Loretta Preska ordered the department to implement the recommendations of court-appointed Special Master David Irwin, who has monitored the DOE since January of 2021 to identify the underlying causes of delayed services. Some of his notable recommendations included a digitization of the paper-reliant system, hiring additional staff, and streamlining communication between parents and providers. Preska’s ruling was the culmination of 2 decades of litigation over a class action lawsuit, L.V. v. NYC DOE, filed by non-profit organization Advocates for Children of New York (AFC) in 2003. The AFC represented the parents of nine disabled children whose services were being withheld by the department, which ballooned into thousands of families who claimed to be experiencing similar issues.
Under Part 200 of the Regulations of the Commissioner of Education, parents & guardians can claim special education services for their children through a four-step process: their referral of the child for special education services to the Committee on Special Education (an entity within the DOE); an evaluation of the child’s disability by a private physician or one designated by the education department; the development of an Individualized Education Program (IEP) by a team of teachers, psychologists and district representatives to underscore the educational needs and entitled services of the child; and the IEP team’s determination of what services or tuition payments should be provided.
In our interview with Michael and Sarah Jones, the parents of a non-verbal student on the autism spectrum named Anton (names changed at their request), they revealed that upon initially receiving Anton’s placement, it felt as if the IEP team had made a mistake. “They referred him to a public school program, but when we actually visited the school, we were told that they didn’t have enough staff to support him,” explained Sarah. Anton, then 6 years old, had been placed into a large, general education class that did not have a special education teacher, as the education department had promised. “It felt as if they had completely disregarded the needs of our son.”
If parents consider the department’s decision to be inappropriate, or insufficient in practice — as in the case of the Jones family — they can file a due process complaint, requesting to have what is known as an impartial hearing. New York-state licensed attorneys known as impartial hearing officers, who are not employees of the DOE, act as arbiters to determine whether the child’s placement or provided services should be reevaluated. As required by federal and state law, officers must host a hearing with both parties and find a resolution within 75 days of the complaint being filed. If the officer rules in favor of the department, the child’s placement remains the same, in which case parents can appeal to the Office of State Review; if the officer rules in the family’s favor, the resolution must involve a timeline that requires the education department to provide appropriate services or payment to the child by a certain date.
The Jones family filed a complaint immediately after realizing the inadequacy of the placement, and had their hearing 3 months later. The arbiter suggested that Anton be enrolled into the Keswell School, a private school for students on the autism spectrum, ruling that a majority of the tuition be covered by the DOE. “I thought we were finally on the right track,” said Michael. “But we were far from it.”
The deadline for the department to provide services or compensation is capped at 35 days after the officer’s ruling, as established by a 2007 settlement agreement in the lawsuit, but the department’s repeated inability to provide payments or services even remotely close to the legal deadline forced the lawsuit to remain ongoing until Judge Preska’s ruling in July.
“It took about 4 or 5 months before we actually received the payment for his first year,” said Sarah. All IEPs must be annually reevaluated, which Sarah and Michael must await for Anton, on top of the tuition payment itself. “Year after year, they [the DOE] take longer and longer. There’s been times where they don’t even provide the full amount, and we have to request and wait for some more months to receive that portion.” While Anton, now 14, has been flourishing ever since his enrollment at Keswell, Michael and Sarah anxiously await compensation from the education department, unsure if they will be able to send their son back to school the following year.
IEPs cover students with everything from learning disabilities to neurodevelopmental disorders, such as Anton on the autism spectrum. The type and frequency of services provided by the DOE varies depending on the disability, which is delineated by the IEP. If parents believe that the available services cannot support the educational needs of their child, then the department is obligated to provide tuition payments for a private school that can.
And yet, thousands of families have been stonewalled by the department because of the flaws that are just now being addressed, with nearly 2,000 families waiting to receive the services or tuition payments already awarded to them by hearing officers as of the end of 2019. Between January and April of 2022, the DOE satisfied less than 550 out of 11,000 orders from hearing officers to provide payments and services on time.
While waiting several months or a few years to receive payments & services is common, some, such as those listed in the initial L.V. v. NYC DOE filing in 2003, never received their services after more than a decade of waiting and aged out of the school system.
“Time is very important for young students and they are sometimes developing maladaptive behaviors as they wait for their therapies,” said Ivy Feldman, executive director of the Keswell School. “I have spoken to parents of students who have not found appropriate class placements and some are even waiting at home, not getting needed therapies because there are not enough appropriate programs.”
Understaffed public schools leave children without providers for their services, plus the DOE often fails to fulfill their obligation to assign independent providers as an alternative, Feldman explained.
Through her decades of experience working with students on the autism spectrum, Feldman has seen the importance of routine in the lives of these children firsthand. As shown in behavioral studies of autistic students, the repetition of daily routine creates a reliable structure that reduces stress, allowing them to focus on learning new skills. The lack of such routine, caused by the DOE’s delayed allocation of assistance, risks the irreparable deterioration of advanced behaviors, making special needs students vulnerable to regression.
As the COVID-19 pandemic kept children isolated at home, the AFC filed a new lawsuit alleging that the city’s current standard of remote learning was not an adequate replacement for the services that special needs students were entitled to receive, highlighting the insufficient distribution of remote learning devices and physical therapy sessions. The suit demanded that services be provided to families without need for an impartial hearing, considering the accumulation of nearly 10,000 complaints had propelled the average time to reach a resolution to 259 days during the 2019–2020 school year, more than three times greater than the legal limit of 75 days, which was not viable for parents caring for special needs children.
Procedural issues precede the pandemic, with “nine impartial hearing officers in rotation with over 9,000 due process claims filed for school year 2018–2019,” as laid out in a letter by Deputy Schools Chancellor Karin Goldmark, despite a doubling of complaints since the 2014–2015 school year. Hearing officers often earned less than half of the maximum $100-per-hour pay rate as the salary for the position had not been raised in over 18 years. Lack of interest from attorneys who often already had private practices derailed hiring, leaving at one point NYPD sergeant-turned hearing officer Edgar De Leon as the only officer accepting new cases, saddling him with 1,713 over one year. The lack of staff left thousands of complaints with no hope of reaching a timely resolution. Through the lawsuit, Advocates for Children of New York made it clear that requiring families to deal with the inefficiency of the Impartial Hearing Office, because of the DOE’s failure to adjust to the pandemic, was untenable.
While a federal judge dismissed the lawsuit in March of 2022, ruling that families must follow the impartial hearing process, the circuit court overturned the ruling in February of 2023 on the grounds that conditions had not improved since the filing of the case.
Former Mayor Bill De Blasio’s academic recovery plan, which dedicated $251 million to providing after-school and weekend programs with compensatory services to special needs students, was not enough to fix the issues raised by the lawsuit. Delayed for months due to a lack of available staff, the quality and consistency of the programs, which were meant to compensate for lost physical and speech therapy sessions during the pandemic, heavily varied depending on the resources accessible to each school.
In one egregious example documented by Chalkbeat, 11-year-old Maliek Rodriguez, who falls on the autism spectrum, was being tutored in math rather than the therapy sessions that he was entitled to, making him just one of many children who suffered from the inadequacy of the programs.
While Irwin believes that Judge Preska’s ruling will take a year to show results, recent and approaching cuts to the DOE’s budget may hinder this progress. As part of Mayor Eric Adams’ response to the asylum seeker crisis, requiring housing for tens of thousands of migrants each month, the current fiscal year budgets of all city agencies have been reduced by 5% this past November, amounting to $547 million in losses for the DOE. Two additional 5% cuts planned for January and April of 2024 could cost the department another $600 million.
Considering that the DOE spent over $7.2 billion on special education expenditures in 2018 alone, a loss of over $1 billion is undoubtedly going to make the historically slow delivery of payments & services to families all the more difficult.
According to the AFC’s testimony to the New York City Council Committee on Finance, the November budget cuts have already frozen hiring and forced hundreds of educational staff to lose their positions, causing further delays for students to receive their payments and services from the education department.
Isabella Rieke, Senior Communications Manager of the AFC, told Local that “In addition to the budget cuts, we know that there are also critical education programs that have been funded with COVID-19 relief dollars that will expire in June of 2024, and there are no plans to sustain these programs.” The loss of federal COVID-19 stimulus funding, $1 billion of which was annually dedicated to New York public school programs, jeopardizes programs that special needs students rely on.
Rieke explained that the AFC has initiated a call to action, as they have “joined together with more than 150 partners and organizations to call on elected officials to take action to protect these key education programs” in addition to ensuring that students with special needs can continue to receive the support that they are obligated to receive.
While maintaining this funding is crucial for special needs students, the recommendations of the court-appointed monitor highlighted the glaring issue, that “no ownership or accountability for monitoring compliance” has been placed on the DOE. Judge Preska’s ruling finally addresses the department’s lack of responsibility, requiring that the department regularly report its progress in implementing timely service and payment orders. Rieke believes that this is a step in the right direction, but only time will tell if the department can actually improve.
