Parents and Their Students with Disabilities Routinely Denied Due Process in NYC

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.

Understanding IEP Classifications

Every child is unique and has unique learning needs.  Individual Education Programs (IEPs) are created to make sure that there is a plan for meeting the unique needs of each child.  But of course, using categories can help educators figure out how to approach each child’s learning needs.

Under the Individuals With Disabilities Education Act (IDEA), a “child with a disability” is defined as a child who falls into one of thirteen categories, and who, because they fall into that category, needs special education or related services.  Those categories include children with intellectual disabilities, hearing impairments, deafness, visual impairments (including blindness), deaf-blindness, speech or language impairments, emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, or multiple disabilities. 

A child ages 3 through 9 could also qualify as “a child with a disability” if they experience developmental delays, including physical development, cognitive development, communication development, social or emotional development, or adaptive development.

According to the New York City Department of Education’s 2016-2017 Annual Report on Special Education, 39.8% of students with IEPs were classified with a specific learning disability, 30.9% with a speech or language impairment, 8.7% with autism, 8.4% with other health impairment, 5.6% with emotional disturbance, 3.5% with intellectual disability, 1.6% with multiple disabilities, 0.8% with hearing impairment,  0.3% with orthopedic impairment, 0.2% with visual impairment, and 0.1% with traumatic brain injury.  A very small number of students had a deaf-blindness or deafness classification.

That means that in New York City, specific learning disability and speech or language impairments are the most common disabilities, followed by autism and other health impairments.  But these are some confusing categories!  What do they mean?

Formally, a specific learning disability means “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations.”  Often, students with this classification have dyslexia (which affects reading skills), dysgraphia (which affects writing skills), dyscalculia (which affects math skills), or other troubles with listening, speaking, or reasoning skills.  

The second most common category, speech or language impairment classification, officially means “a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.”  Speech and language impairments are very common among 3-, 4-, and 5-year-olds with disabilities.  Some common kinds of speech impairments affect articulation (like a lisp or distortion of a particular sound), fluency (like a stutter), or voice (this could be sounding nasal or raspy, causing pain or endurance issues).  Language expression issues might include trouble with expressing ideas, following directions, or using grammatical patterns or vocabulary.  Students with speech or language impairments may see a speech pathologist to practice speaking, or to learn how to use assistive technology to communicate.

“Other health impairment” can be a confusing classification, since it covers so many different types of disabilities, from ADD to life-threatening diseases.  Officially, it includes students who have “limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that— Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome.”  Students with this classification might have complex medical issues.  Teachers might need to educate themselves about a child’s condition, and work with others to modify the learning environment to make it both safe and non-restrictive.

The IDEA stipulates that a child is to be designated under only one category.  This can be difficult, as a child might sometimes fall into multiple categories.  Educators will often classify the child according to the disability that affects their learning the most.  There is also a classification for “multiple disabilities” to be used when the combination of different impairments means that the student’s needs cannot be served in programs for only one impairment.  For example, if a child has an intellectual disability and is blind, then a program with students that only have one of those disabilities would not do a good job of accommodating that student’s needs. 

You might be asking now, “how much does all this matter?”  Students are given a classification based on their evaluations.  As a student grows up and their disability changes, it is possible to be reclassified after an evaluation.  But some parents wonder how important that is.  Of course, if a child’s IEP is be tailored to their unique needs, like it’s supposed to be, then the child is getting the education they’re guaranteed!  But a child’s classification can open the door to different services or schools.  We don’t want a student with autism to miss out on services for students with autism because they were mislabeled with an emotional disturbance classification or a speech and language classification.

As parents, educators, and advocates, it’s important to educate ourselves about the IDEA disability classifications.  The more we know, the more we can make sure our students are getting the education they deserve!

Victory At Last For Endrew F.

Last March, the U.S. Supreme Court’s 8-0 decision in the case Endrew F. v. Douglas County School District heightened the standard of education that children with disabilities are entitled to receive.  We know that a student’s Individualized Education Program (IEP) must be tailored to a child’s unique needs, but that doesn’t tell us how much progress a child should be making in order to call an IEP adequate—an issue the Supreme Court addressed in Endrew F.

The previous standard was that a child needed to receive “some educational benefit.” Prior to Endrew F., this ambiguous language was interpreted differently by different circuit courts for decades.  When the 10th Circuit reviewed Endrew F., it continued its practice of interpreting “some educational benefit” as “merely more than de minimus.”  This meant that a child with disabilities was receiving an adequate education under the Individuals With Disabilities Act (IDEA) if they made even the smallest amount of progress during a school year.  The Supreme Court determined in Endrew F., however, that an “educational program must be appropriately ambitious in light of [a child’s] circumstances,” calling it “markedly more demanding than the ‘merely more than de minimis’” test.  That was great news!

After the Supreme Court’s decision, the case was sent back down to the trial level—to the District Court in Denver, Colorado.  The District Court was charged with deciding whether Endrew, who has autism, was entitled to reimbursement for his private school tuition.  His parents said he had made very little progress at his public school in Douglas County, but made much more progress at a private school his parents placed him in, with the help of their attorney.  His new school used a Behavioral Interventional Plan that was tailored to Endrew’s needs.

Last week, after more than a decade of struggling, Judge Lewis Babcock ruled that the Douglas County School District is responsible for the private school costs for Endrew.  We’re so happy that Endrew and his parents had this victory, and we hope that the Douglas County School District, and school districts across the nation, learn to prioritize the unique needs of our students, so that all students can have access to a challenging, rewarding education that helps them learn and grow.

Read more about the case here, and click here to learn about the long journey Endrew’s parents went through.

Unique Needs

Welcome to the inaugural blog post of the Law Office of Steven Alizio, PLLC!  We hope you’ll continue to follow us for updates on special education law and strategies to ensure each child’s individual needs are met.

Many may remember the Houston Chronicle breaking the story about the Texas enrollment target in 2016.  In 2004, Texas set a special education enrollment target at 8.5 percent—they didn’t want more than 8.5 percent of Texas students to be enrolled in special education.  The problem?  Way more than 8.5 percent of students needed special education services!  It’s estimated that, under this cap, at least 150,000 children were kept out of special education programs.  To compare, about 19 percent of students in New York City schools receive special education services—and this percentage doesn’t even include the many students with special needs that haven’t been classified.

Although the federal Department of Education did a huge investigation, and the Texas schools are recovering, the underlying problem still looms.  Too often, schools focus on what they have available for children with disabilities, rather than what the children need.

Before special education became common in the United States, many children with disabilities were either barred from receiving an education or were forced to adapt to whatever education was available.  The Individuals with Disabilities in Education Act (IDEA) changed that.  Special education means meeting the needs of the child—not about forcing a child to try to succeed with whatever is available.

The IDEA is about meeting a child’s “unique needs.”  Corresponding federal regulations explain that, “Special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability,” and that “Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction…[t]o address the unique needs of the child that result from the child's disability….”

Parents know that it’s hard to fit a child into a box—especially when a child has as many unique and wonderful qualities as our children with disabilities do.  When pursuing a free and appropriate education for children with disabilities, it’s important to remember that children deserve to have their unique needs met—they don’t have to accept whatever’s available, or whatever the state wishes the student needed.