Jan 20, 2017 Letter to Mayor re special ed tuition reimbursement

THE COUNCIL OF THE CITY OF NEW YORK January 20, 2017 The Honorable Bill de Blasio New York City Hall New York, NY 10007 Dear Mayor de Blasio, We are writing on behalf of a number of our constituents who are parents of special education students for whom the NYC Department of Education (DOE) failed to provide a free and appropriate public education for the 2015-16 school year. Given the lack of an appropriate program, these parents placed their children in an independent special education private school and filed claims against the DOE for reimbursement.

The DOE has agreed in writing to settle these cases, admitting that they do not want to proceed to litigation. With this written assurance of settlement, stipulations have been written and submitted to the Office of Legal Services at the DOE. However, the DOE has failed to either execute (counter sign these agreed to stipulations) or pay out on these written agreements.

This course of conduct is in direct opposition to your 2014 Special Education Initiative, with which you specifically sought to reduce the burden on families of special education students by implementing the following policies: Expedite Decisions: Where settlement is appropriate, DOE will seek settlement within 15 days of receiving notice of parent intent to unilaterally place their child in a school.

Reduce Extended Legal Battles: The DOE will refrain from re-litigating settled or decided cases, unless there is a change in the IEP placement recommendation. The DOE will avoid unnecessary litigation in cases where the agency is unable to offer a placement, or when a child is about to enter the final grade of a school.

Reduce Paperwork: Instead of requiring parents to submit full documentation every year, the DOE will only require that paperwork every three years, allowing for income eligibility updates to be made each year, as needed.

Expedite Payments: DOE will make tuition payments on a monthly basis when required by a program, and it will provide a payment schedule to parents following any settlement. Once parents win a claim for tuition reimbursement, the DOE will pay the tuition while the DOE appeals that decision to a higher level of review.

[Source: “Mayor de Blasio and Speaker Silver Announce New Steps to Help Families of Students with Disabilities,� http://www1.nyc.gov/office-of-the-mayor/news/306-14/mayor-

THE COUNCIL OF THE CITY OF NEW YORK

de-blasio-speaker-silver-new-steps-help-families-students-disabilities#/0; June 24, 2014, Office of the Mayor] We are told by attorneys and advocates practicing in the area of special education, that the DOE is now settling the vast majority of these cases on the basis of a ten day notice, rather than the filing of a formal complaint. Unfortunately, the other parts of the plan have not been implemented meaningfully. Many parents and legal advocates believe that the situation has in fact worsened for parents.

To illustrate the scale of the problem, one special education law firm has well over 500 client families whose cases were approved by the DOE for settlement for the 2015-2016 school year, but who at the start of the current school year were still awaiting reimbursement. This same firm tells us that as of December 15th, they had over 150 cases from the 2015-16 school year that still haven’t been paid out or had their agreements executed.

One significant concern this situation raises is the possibility that special education lawyers will begin to advise their clients not to accept settlements with the city and to proceed to hearing in order to avoid the burden of these extreme delays in recouping payments through the settlement process.

When a parent wins as the result of an impartial hearing the method of payment is governed by federal law and the parents are paid within 30 days of decision and are entitled to a reimbursement of legal fees. A shift in this direction would mean that the City would once again have to spend tens of thousands of dollars in litigation on each one of these case, even where it would be preferable to settle. There are well over 5,000 tuition reimbursement cases against the City every year. This is a cumbersome and expensive process, and some estimate that the public cost of an Impartial Hearing is $50,000 per case.

Another significant concern is how these extreme delays in reimbursement affect access to appropriate special education for those families with the least amount of financial resources. Not every family can manage the burden of paying out such large sums for tuition when settlements for reimbursement aren’t timely and when the process is fraught with the kind of uncertainty that is raised when a government says one thing but does another. We had higher hopes that your 2014 Special Education Initiative would help address this disparity of impact on special needs families.

We therefore ask for your assistance in ensuring that the DOE adheres to the commitment that was made to thousands of New York families of special needs students so that we can do right by them for the 2015-16 school year, this school year, and in years to come.

Sincerely,

Ben Kallos, Council Member

Daniel Garodnick, Council Member

Daniel Dromm, Council Member Chair, Committee on Education