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.

Crisis Looming: Report Finds Problems With NYC Impartial Hearing Office

A state-commissioned report recently found significant process failures in New York City’s special education hearing system.  Although not a formal audit, the analysis, conducted by Deusdedi Merced of Special Education Solutions, LLC, was meant to identify practices that were either inconsistent with “standard and best legal practices” or impediments to the timeliness and efficiency of the system.  The reviewer’s preliminary findings suggest that a “crisis” in New York City is imminent, potentially threatening students’ access to due process.

The reviewer’s discussion is framed around the considerable and expanding number of complaints filed in New York City, the focus of Chalkbeat’s recent article covering the external review; the overwhelming number of due process filings in New York occur in New York City alone.  In fact, they have comprised over 90% of yearly complaints filed statewide since the 2014-2015 school year.  Moreover, in the most recent available data, i.e., the 2016-2017 school year, the state’s complaints totaled the combined numbers of California, New Jersey, Illinois, Pennsylvania, Texas, and Florida, the six states that are most comparable to New York in terms of size, demographics, and special education delivery issues.  Most alarmingly, though, between the 2014-2015 and 2017-2018 school years, New York City has experienced a 51% increase in the number of complaints filed, with the average number of matters seen per day growing from 55 to 122 and the average case length similarly growing from 149 days to 225.  In stark contrast, the number of hearing officers and hearing rooms for these cases have stayed stagnant throughout this period.  It is no surprise why a review of the hearing system was announced on January 24, 2018 by Assistant Commissioner Christopher Suriano (on file with the New York State Education Department).

The recently released report aligns with New York State Education Department (SED) and Assistant Commissioner Suriano’s review plan, focusing on four key areas that would help better understand the functioning of the hearing system (i.e., the New York City Impartial hearing Office, or NYCIHO).  These areas were: (1) the assignment of hearings to Impartial Hearing Officers (IHOs); (2) the payment structure for IHOs; (3) the specific assistance provided to IHOs by NYCIHO; and (4) the observation, availability, and suitability of hearing room spaces.  In short, the reviewer concludes that certain extant practices (see the original report for details) may ultimately incentivize delays and reductions in the quality of legal proceedings.

Among others, recommendations include (1) initiating a plan to revise the IHO appointment process to ensure the availability of hearing officers prior to their appointments, rather than after, and to subsequently limit recusals to personal or professional interests that would conflict with their objectivity; (2) adopting a policy that compensates IHOs for all prehearing, hearing, and post-hearing activities that are consistent with appropriate, standard legal and best practices; and (3) expanding the number of hearing rooms and private spaces for parents and their attorneys, improving their ventilation and temperature control, sound proofing, and access to amenities like printers.

Quoting President Kennedy’s warning about the costliness of long-term inaction, Merced finishes with “[t]o this reviewer, there is no doubt: the time for decisive action is now,” for, according to him, SED will be measured not by what it learns from the report, but by what actions it takes moving forward.  We at The Law Office of Steven Alizio are hopeful that administrators will heed the call.  In the meantime, we will continue to fight to ensure our clients’ right to due process is respected.

Cheers to a New Year!

As 2018 comes to a close, we want to reflect upon—and thank all our clients and supporters for—the successes of the past year.  We're also excited about what 2019 has in store!

LOOKING BACK AT 2018

This year, we have:

• worked to secure appropriate educational evaluations, services, and placements for dozens of students with disabilities;

• hosted our first annual Know Your Rights Conference at Columbia Law School (cosponsored by Columbia Law School's Education Law and Policy Society, and INCLUDEnyc);

• worked with the ARISE coalition and others to obtain increased funding for accessibility improvements in NYC school buildings;

• conducted trainings in—and made presentations on—special education law topics to parents, lawyers, social workers, neuropsychologists, educators, and other professionals throughout New York State;

• published guides to developing IEPs and 504 Plans; and

• most importantly of all, continued to learn from and work with dedicated parents, students, and educational and related service providers across New York City.

LOOKING FORWARD TO 2019

We also look forward to more great things to come in 2019, including achieving more victories for our clients and continuing to provide information and resources to parents and educational and related service providers throughout the state.  Check out our upcoming events page to stay up to date with our activities, including tabling at the INCLUDEnyc fair in January!

And always remember to check out our resources page or contact us if you have any questions!

Executive Function Skills: A Foundation for Success at School & Beyond

By Brittany Peterson and Jackie Stachel, Executive Function coaches at Beyond BookSmart

Editor’s Note: We would like to thank Beyond BookSmart for contributing this guest content to our blog!  If you would like to submit a guest blog post related to students with disabilities, please let us know.

Imagine a builder getting started on a new home.  Maybe he’s behind schedule.  There’s pressure from the owners.  He knows that the foundation has to go in before he can build but maybe he can find a way to get back on schedule by modifying his approach.  He digs a shallow hole and saves a whole two days there.  He calls up another contractor and gets a rush pour on the foundation.  He saves a day by getting started while the cement is still curing—it seemed mostly dry, so that’s fine, right?  He starts putting up that house, but guess what?  At every turn, he sees the problems he has caused by neglecting a proper foundation.  Walls aren’t straight, doors slip out of alignment, and the cracks in the inadequately dried cement invite a torrent of water into the basement every time it rains.  All because he didn’t take the time and effort to build a solid foundation.

What does this scenario have to do with your child’s school performance? (Stick with us here…)

Photo by Santi Vedrí on Unsplash

Before a student can ace that algebra test, master that 3rd declension in Latin, or complete a semester-long history project, they need to have a solid foundation of skills that help them to be productive.  They need to learn how to manage themselves: be organized, initiate tasks, complete tasks, plan out their work, manage their time, and try to keep cool when the going gets tough (and it always gets tough!).  These are executive function skills—the ones that help a student function like an executive and be the boss of their own life.  And school is a student’s job, right? Students need excellent executive function skills to do well at their jobs.  And just like the unfortunate builder in our opening scene, nothing seems to work right when the foundation is weak.

Symptoms of Weak Executive Function Skills

Without good executive function skills, we can think of these examples as symptoms of a shaky foundation:

1) A student who can talk up a storm about Renaissance armor but can’t get a word on the page for a 10-page research paper.

    Foundational skills needed: Task initiation, planning, organization

2) A student who’s in such a last-minute panic over a project that the whole house turns into full-on crisis mode.  (There may be tears...there may be raised voices.  We're not naming names here.)

    Foundational skills needed: Time management, planning and prioritizing, emotion regulation

3) A student who’s got pencils in his sock drawer, socks in his locker, and overdue homework scrunched in the recesses of his backpack.

    Foundational skill needed: Organization

Students who have a wobbly foundation in executive function skills may have trouble reaching their true academic potential; in essence, they are always making quick temporary repairs to their shaky foundation by asking for extensions on assignments or begging for bailouts from parents. 

Parents often find themselves faced with a dilemma of either constantly helping their children make these "quick fixes" or watching them flounder and struggle.  The real solution is for students to learn the skills that help them be productive and organized.

That foundation helps students build a successful outcome at school and beyond.

Disclaimer: Guest blog posts do not necessarily represent the views of The Law Office of Steven Alizio, PLLC.

Chancellor’s Capital Budget Proposal Takes Important Step for Accessibility

NYC Department of Education (DOE) Chancellor Richard Carranza took an important step last week to make public schools more inclusive for students with disabilities by proposing an additional $750 million over the next five years to make at least a third of schools in each public school district fully accessible.  The announcement is a vital step in creating inclusive public schools for students with disabilities so that they can fully enjoy all the resources the school system has to offer. 

The proposal echoes the funding amount that Advocates for Children suggested in a report last month, “Access Denied,” and responds to persistent advocacy from groups like the ARISE coalition (of which The Law Office of Steven Alizio, PLLC is a proud member) that urged the DOE to include funding in this plan to meet accessibility goals.  The Access Denied report documented how only about 20 percent of schools across the NYC system are fully accessible to students with disabilities.  Other schools that are partially accessible may have certain areas that are off-limits to students with disabilities; for instance, a school may have an accessible first floor but no accessible way to get upstairs.  

Carranza’s proposal is the first step in the capital plan process, which happens every five years.  The current proposal lays out all of the new construction and building improvements the DOE wants to fund for fiscal years 2020 to 2024, and proposes spending $17 billion in total.

Across the city, more than 200 NYC school buildings are more than 100 years old, which means the city would have to demolish and rebuild many of them to make them fully accessible, the DOE told Chalkbeat recently.  For that reason, the capital plan focuses its spending on bringing partially accessible schools up to fully accessible standards rather than prioritizing schools that are not accessible at all.  According to Chalkbeat, the DOE said that these improvements will range from “‘really easy fixes,’ such as adding ramps for wheelchairs, to ‘very big overhaul projects,’ such as building access to a second-floor gym.”

In addition to improvements in building accessibility, the total capital budget proposal of $17 billion includes plans for more permanent classroom space—although this will not necessarily mean smaller class sizes—air conditioning, and technological improvements, all of which could benefit students with disabilities by increasing comfort and access to learning materials in diverse formats, depending on how the school system implements those improvements.

As Advocates for Children said in response to the capital plan announcement, the increased accessibility will “literally open the doors” for students with disabilities.  But we hope that the DOE does not stop there.  Having only a third of schools in each district accessible can still impose hard limits on where students with disabilities can learn, what school events parents with disabilities can attend, or where teachers with disabilities can teach.  There is no guarantee that a student’s zoned school, or the one with academic programs in which they are interested, will be accessible or close enough to be feasible, particularly given the busing issues that plagued the school system earlier this year.

According to “Access Denied,” even District 75 programs, which are meant to specifically serve students with disabilities who require more intensive services than other schools can provide, are sometimes housed in less than fully accessible buildings. 

All this does not even mention, of course, the education that students get once they are physically able to access the school building.  Based on the newest data from the DOE, nearly 40,000 students with Individualized Education Programs (IEPs) did not get some or all of the services they were mandated to receive in the 2017-2018 school year.  A number of news outlets also reported earlier this year on systemic issues with IEP services and concerns about getting students the therapy services to which they are entitled.

Nonetheless, Carranza’s announcement should provide much hope.  The additional money earmarked for increasing school accessibility will improve the quality of education for countless students across the NYC system and, importantly, shows that advocacy from parents, teachers, and students does make a difference. 

The DOE will gather input from Community Education Councils and other community representatives on the proposed plan through February, and in March will submit a revised plan to the Mayor and City Council for approval, according to the timeline in the plan.  We encourage all those involved with the NYC public school system to make your voice heard throughout this budget process and continue to push for what you think will make the school system the best it can be for all students.

Systemic Problems for Special Education Students

The New York Times reported last week on T.J., a 12-year-old student with an intellectual disability who the school system has left behind.  T.J. still reads at a first-grade level.  He was not properly diagnosed until recently, and was not getting appropriate services for what he needed, according to his mother. 

Unfortunately, T.J.’s story is not unusual.  Of the some 200,000 students with identified disabilities in the NYC system, the department itself admits that about a quarter of those students did not receive the specialized instruction they need just in 2016-2017 school year—and that was a significant improvement from the year before.  The real number of students not receiving necessary services is likely even higher, as the department’s estimate assumes that all students’ IEPs currently mandate the appropriate services—a big assumption—and leaves out students who may need IEPs but have not gotten them.  On top of that, Spectrum News NY1 recently revealed that the Department of Education is months behind on payments to therapists, and as a result, students are not getting the therapy to which they are entitled.

But we want you to know that you are not alone trying to get your child the services they deserve.  If you feel your child is not getting what he or she needs to succeed, equip yourself to speak up.  Take a look at our resources page to get started. 

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!

The Money Behind Special Education

In 1993, a group of concerned parents founded the Campaign for Fiscal Equity (CFE).  They wanted to reform New York’s school finance system, so they filed a lawsuit challenging that the State underfunded New York City's public schools.  It took quite a few rounds of going to court, but in 2003, the New York State Court of Appeals—the State’s highest court—found that New York’s school funding system violated New York City schoolchildren’s constitutional right to a sound basic education.

Yet the State has still not adequately funded New York schools at the level the Court required.  In the first two years following the Court’s decision, the New York Legislature provided installments totaling $2.3 billion, but aid was cut after the recession, and has yet to recover.  Read the story of the CFE decision here, here, and here.

The Court decided that schools need more money, but they’re not getting any more.  And, of course, special education can take a huge hit when funds are tight.

Year after year, thousands upon thousands of students classified with disabilities do not fully receive the special education services mandated on their IEPs.  And the New York City Department of Education doesn’t even attempt to hide that fact.  Their Annual Report on Special Education for last school year estimates that 41,040 students were only partially receiving their special education services, and that 7,383 students were not receiving any special education services.  And this doesn’t even take into account the many disabled students who have not been classified and provided with IEPs.  That’s over 25% of classified students not receiving the full services mandated on their IEPs!  Getting that percentage down to single digits will undoubtedly require a funding increase.

But next year, the federal government plans to fund the Individuals with Disabilities Education Act (IDEA) at the lowest level since 2001, covering only 14.9% of per pupil expenditures.  When the IDEA was enacted, Congress authorized funding up to 40%, but the federal government has never funded more than 19%.

And as New York State plans its budget for next year, funding for education is still a big question mark.  The Alliance for Quality Education says the Executive Budget proposes a special education cut of $70 million for the coming school year, primarily through a change in the reimbursement formula for summer special education programs.  New York City officials say that the budget means $65 million less for the city’s special education programs, and Mayor de Blasio says the overall education budget falls $200 million short of what city officials projected.

Until our schools are funded at the level they deserve, students with disabilities will miss out on the services they need.  As the state budget is finalized this spring, we hope students with disabilities are kept in mind.

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.