No one has been assigned to help resolve roughly 9,400 special education complaints in New York City — even as nearly 30% of available hearing officers have no cases on their plates, according to the state education department.
In response, state officials want to require these officers to take on a minimum number of cases or otherwise risk losing their certifications. It’s one of several state proposals over nearly two years aimed at easing New York City’s special education complaint backlog.
Families file complaints with the city’s impartial hearing office when their children with disabilities aren’t receiving mandated services, such as physical therapy or counseling, or when they believe their child is in the wrong class or even the wrong school, hoping to get the city to pay private school tuition. The backlog means children with disabilities go without therapeutic services, the right class placement, or appropriate school setting.
Despite efforts from the state or the city to ease the backlog, the number of cases in New York City have continued to rise. More than 16,300 cases were open as of Nov. 9, a 34% increase from the number of cases in the 2019-2020 school year, according to state officials. As of last month, 9,399 of these cases have not yet been assigned to an officer, with more than a quarter of them having gone unassigned for six months or more.
As most children learned remotely in the year and a half after the pandemic hit, many students with disabilities missed out on the services they’re legally owed. The city has promised to launch a sprawling program to help students with disabilities catch up on services they may have missed, but the program’s rollout has been delayed.
“The New York City Department of Education continues to remain overwhelmed with an unprecedented number of due process complaints, and data indicates that these numbers continue to increase,” Chris Suriano, the state’s assistant commissioner of special education policy, said on Monday during the New York State Board of Regents monthly meeting.
Recruiting new hearing officers
Though there are 162 officers who are certified to adjudicate these cases in New York City, 46 of them had not been assigned any cases as of last month. Thirty of those officers had been trained recently, according to the state. Asked why so many officers have no cases, a state spokesperson said they’re contractors who may “have other responsibilities,” adding that the number of cases per officer varies widely.
Currently, officers are required to take just one case every two years, according to a spokesperson for the state education department.
Under the new state proposal, impartial hearing officers in New York City would be required to take at least 35 of the cases they’re offered in a single year but no more than 500. If officers don’t meet the minimum requirement, the state education department could consider rescinding their certification, the proposal says.
One exception to the rule: newly certified officers would have one year before being required to take at least 35 cases, according to the proposal.
The proposal highlights that the state is “investing significant fiscal and staffing resources into recruiting, interviewing, and training” new impartial hearing officers. That investment, however, has “little or no benefit” if these officers are not picking up enough cases to reduce the backlog.
John Farago, who has been a hearing officer in New York City for decades, said the state has done a good job of hiring and training roughly 100 new officers and supports the minimum caseload requirement. Still, he said the effects of hiring new officers may still take over a year to begin making a dent.
“The expectation that it would fix things overnight was not realistic,” said Farago, who noted that he typically has about 350 active cases at any given time.
Other possible fixes
At the same time, the state is also calling to allow officers to extend a case, from 30 to 60 days, a move that was temporarily allowed in response to the pandemic.
State officials believe such a change will make officers more willing to accept cases, especially if they’re required to take at least 35 cases a year. The move would also free up hours of hearing officers’ time that is spent going through the motions to issue regular extensions.
State officials claim that parents and some officers prefer such an extension because “it improved [the officer’s] ability to concentrate on the substantive issues of their cases rather than ministerial procedural issues.”
Finally, the state is also calling for the city to create an electronic filing system for these complaints. The city currently manually enters data about impartial hearings, “causing weeks or months of delays” before complaints, pleadings and final determinations are entered. That has made it “nearly impossible” for the state education department to monitor the progression of these cases, state officials said.
Earlier this year, the state tweaked requirements for becoming an impartial hearing officer in order to increase the pool of people who can resolve complaints. They also allowed hearings to happen over video conference.
But advocates have pushed for more changes, including pressing the city to resolve more of these cases through mediation and settlements.
Waiting ‘months or a year or longer’
Even though federal law requires these cases to be resolved within 75 days, it took triple that amount of time in New York City during the 2018-2019 school year — a rate that has grown since at least the 2014-2015 school year. (Officials did not immediately provide more up-to-date data.)
Randi Levine, a policy director at Advocates For Children New York, said her organization is still reviewing the proposal. But she noted that parents wait “months or a year or longer” to reach a resolution with the city.
“We’re continuing to see cases to go to hearing even when the DOE is not disputing the parent’s requested remedy,” Levine said.
The city has failed to comply with federal special education laws for more than 13 years, while the state’s compliance plan for the city has failed to substantially improve the system. State officials have acknowledged that other fixes are necessary.
“Part of the [compliance plan] we’re working on is using the resolution sessions as well as alternate ways to resolve complaints, such as settlements, use of mediation,” Suriano said. “The settlement process takes a long time in New York City, and there is very little use of mediation at all.”
Sarah Casasnovas, a spokesperson for the education department, said the city supports the state’s proposal of creating minimum caseloads. She added that the education department has made “significant reforms to reduce wait times, hire more staff and streamline the entire process,” but did not answer questions about why the number of cases have soared or how many cases in recent years have exceeded the legal time limit to be resolved.
State officials will collect feedback on these proposals during the next two months, and are expected to vote on them in March 2022. If passed, the new requirements would go into effect March 30, 2022.
Alex Zimmerman contributed.