On June 6, 2019 our office posted a blog entitled, “Crisis Looming: Report Finds Problems with NYC Impartial Hearing Office.” That blog post discussed a state-commissioned report, in which the reviewer’s preliminary findings suggested that a crisis was imminent in New York City, potentially threatening students’ access to due process.
Although our office and other advocacy organizations did not expect a quick fix, we were hoping for something more. Unfortunately, at this point the previously imminent crisis appears to have been realized. Parents and students in NYC are being denied due process as a result of a broken impartial hearing system.
The IDEA envisions a swift hearing and decision process. Following the submission of a due process complaint there is a 30-day resolution period. Often times (the majority of times in our office’s experience), the district’s representative during such meeting is not even authorized to offer a parent’s requested relief. Within 14 days after the 30-day resolution period ends (with some exceptions), the formal hearing process is supposed to begin. And within 45 days after the 30-day resolution period ends (with some exceptions), a final decision is to be issued.
It is a rare occasion (at least in the experience of our office—and the experience of other attorneys and organizations we’ve spoken with) that the timelines referred to above are adhered to. In fact, as a recent Chalkbeat article reports, the impartial hearing “process…by law is supposed to take under 75 days – but…stretched 225 days on average last school year, according to the February state analysis.”
One of the most significant problems with the NYC impartial hearing system is what is colloquially referred to amongst special education attorneys as the “recusal carousel.” For a variety of reasons—including that NYC impartial hearing officers aren’t paid enough—there are significantly fewer hearing officers than necessary to address the enormous amount of complaints that are being filed yearly. As a result, the few hearing officers that are on rotation often have to recuse themselves as they don’t have the capacity to timely hear cases. For any individual complaint submitted, multiple (e.g., more than a dozen) recusals can occur before a hearing officer actually keeps the matter—and it may take several months for the matter to actually be heard; an additional several months for a decision to be issued; and an additional several months for the order to actually be implemented.
Hopefully, articles like Chalkbeat’s, “NYC advocates demand ‘immediate action’ to overhaul special education complaint system,” and blog posts like this, will bring awareness and serve as a catalyst for immediate reform.