Federal Judge Orders NYC to Fix Special Education Service and Payment Delays

Judge Loretta Preska shakes hands with Department of Education Chancellor David Banks, July 19, 2023. | Ben Fractenberg/THE CITY

The Department of Education must take 40 specific actions to resolve decades-old delays in providing or paying for special education services to students

By Alex Zimmerman and Yoav Gonen, The City

This article was originally published on Jul 19 5:46pm EDT by THE CITY

This is part of an ongoing collaborative series between Chalkbeat and THE CITY investigating learning differences, special education and other education challenges in city schools.

NEW YORK - A Manhattan federal judge on Wednesday ordered the Department of Education to take 40 specific steps to address decades-old delays in providing special education services to families who have won legal battles to secure them.

This includes a mandate that the department assign additional staffers within six months to address the thousands of cases that are currently overdue.

When parents of students with disabilities believe their child is not getting the supportive services they’re entitled to, they can file a complaint that leads to a hearing in front of an administrative judge, known as an impartial hearing officer.

Advocates and eight parents of kids with disabilities sued the department in federal court two decades ago because families were often forced to wait months to obtain services or payments for special education services even after they were awarded them in administrative hearings.

Those services can include transportation to and from school, physical therapy, and tuition payments to private schools when families can demonstrate the district can’t properly serve their children in a public school.

Over the years those delays have stretched for months or even years, forcing parents to forgo crucial services or pay for them out of their own pocket — which can be untenable for some families. Those with means sometimes take extreme measures, such as taking out second mortgages on their homes. 

While the original lawsuit was settled in 2007, the case has continued for more than a decade longer because of the education department’s inability to meet the settlement terms, which require that it speed up services and payments considerably.

Wednesday’s order is the latest move, with the most detailed remedy to date, for fixing the issue. Many of the steps delineated by U.S. District Judge Loretta Preska require the education department to act within three to six months, while a number extend beyond a year.

“We are here today to take a massive step toward getting families reimbursed for the costs of services,” Preska said during a court hearing on Wednesday. She referred to the changes required by her order as a “wholesale streamlining of the payment system.”

The ruling also requires the DOE to set up a hotline from which parents can get updates on the status of their complaints seeking special education services for their children, and to set up a mobile app that allows providers of services to enter their hours worked by phone — rather than through a paper invoice that’s required currently.

“It’s huge and very impactful for students — especially the families that don’t have the resources to put money out and essentially give the DOE a loan until the DOE pays them back,” said Rebecca Shore, the litigation director at the group Advocates for Children, which filed the federal lawsuit in 2003. “Parents, families and students have been harmed because of the DOE’s failure for decades to timely implement [hearing officers’] orders.”

City officials said on Wednesday that they support the changes mandated by the court order. In an unusual move, schools Chancellor David Banks attended Wednesday’s court hearing, shaking Preska’s hand and posing for photographs. Though he did not take questions from reporters, he released a written statement after the order was issued.

“The new requirements are stringent because we, too, believe that change is long overdue,” Banks said. “While case volume and challenges increased over the past decade, we are moving aggressively to set a new course.”

Banks’ statement is notable because he previously cast doubt about the legitimacy of the complaint process, arguing that families have tried to “game this system,” referring to reimbursements for private special education that have ballooned to nearly $1 billion. Education officials later walked those comments back. 

Delays Are Commonplace

Unless hearing officers set different timelines, the education department has 35 days to implement orders for services or payments, under a prior settlement in the federal lawsuit reached in 2007. 

That agreement sought to push the education department to comply with the required timelines in more than 90% of the cases, and required the department to pay for an independent auditor to monitor its performance.

The education department utterly failed to meet that standard. The latest numbers supplied by that auditor, covering January to April 2022, show that the department met the deadlines for enacting orders for special education services in just 5.8% of cases, and met payment deadlines in just 2.3% of orders.

There were about 2,800 orders for services and nearly 4,000 orders for payment issued by hearing officers during that three-month quarter. It was the auditor’s 51st report since the settlement, which has come with a price tag for the Department of Education of over $25 million.

Wednesday’s ruling followed the installation of a special master in 2021 to analyze the Department of Education’s challenges in complying with hearing officer decisions in a timely manner, and it mandates most of his recommendations for addressing them.

Earlier this year, special master David Irwin, of Thru Consulting LLC, found that the education department office responsible for ensuring services are provided or payments made is operating with severely outdated methods and technology. 

This includes using handwritten forms, paper-based invoices, and relying on “heavy” levels of data entry that involve “simply copying text from one place to another.”

“These outdated processes require more human staff time as the volume of cases increases,” Irwin wrote in a summary of his findings in March. “This is essentially the root cause of backlogs and delays.”

Irwin also pointed to staffing shortages that are exacerbated by the laborious need for manual data entry and by the administration’s unwillingness to make the positions more desirable by allowing staffers the flexibility to work from home.

“Simply put, kids are not getting services because there are not enough qualified staff to support this work, and the regular means of attracting and retaining staff has not worked,” he wrote.

John Farago, a hearing officer who adjudicates special education cases, said he’s skeptical the court order will transform the process. The problem, he argues, is more systemic and can’t be fixed with a series of technological and workflow changes.

“The culture of the district is to resist its obligation to pay providers,” he said, noting that culture extends to the department responsible for issuing payments to providers and private schools that receive tuition reimbursements from the city.

One solution, he said, could be to take the responsibility for breaking down hearing officers’ orders into specific payments and services out of the education department’s hands and giving it to an independent entity. 

“What’s wrong with the order in my view is that it treats a large deep systemic problem as though it’s a series of small technical problems,” Farago added. “When you’re being eaten alive by piranhas it’s a mistake to focus on them individually.”

Irwin, the court appointed special master who came up with the recommendations adopted in the court order, said the education department “hardly pushed back” on any of his recommendations.

It will take time to see results, Irwin said, adding that he hopes that within a year a much larger share of services and payments are delivered within the required timeframe. He suggested that the main reason the education department has struggled to meet the legal timelines is that they have not understood what reforms are needed to fix the process.

“I’m an optimist,” he said. “This order tells them exactly what they need to do.” 

Long-Running ‘Crisis’

But the court order does not address a much larger issue: The entire process disproportionately benefits families with time, resources, and access to legal help. Some families may simply go without services rather than facing a daunting bureaucratic system. 

And the order focuses on the final phase of the complaint process, even as many other elements of it have been in crisis for years because of an explosion in cases. The number of complaints filed grew by the thousands between 2014 and 2018, according to a report commissioned by the New York State Education Department in 2019 — which found there were also too few hearing officers and too little space to handle the flood of cases.

At one point in 2019 there were just nine hearing officers on rotation to hear nearly 10,000 cases, and a single hearing officer had more than 1,700 cases on his plate.

The COVID-19 pandemic’s interruption to instruction made things even worse for many special education students, particularly those who relied on in-person services or whose disabilities made remote learning all but impossible.

In early 2021, the special master was appointed to get to the bottom of the education department’s difficulties in implementing the orders of hearing officers.

By the end of 2021, then-Mayor Bill de Blasio put the hearing process under the umbrella of the city’s Office of Administrative Trials and Hearings — a shift away from a contracted system that struggled for years to identify enough willing and knowledgeable hearing officers.

In the last school year under de Blasio, parents and attorneys filed nearly 18,000 requests for impartial hearings, according to The New York Times — almost double the number from 2018.

Shore, the attorney at Advocates for Children, said what’s significant about Wednesday’s order is the level of detail in the mandated action steps and the requirement that the Department of Education provide regular updates to the court about its progress.

“Those steps must be taken,” she said. “This is an actual order with teeth.”

Still, any fixes will be too late for many families, including the students involved in the original lawsuit who have since aged out of the public school system.

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