As Special Education Complaints Pile Up, NY Seeks More Presiding Officers But Gets Pushback

The state's proposed solutions to the massive backlogs of special education complaints have been met with criticism from legal groups.

By Reema Amin for Chalkbeat New York November 30, 2020

As special education complaints pile up, NY seeks more presiding officers but gets pushback was originally published by Chalkbeat, a nonprofit news organization covering public education. Sign up for their newsletters here: ckbe.at/newsletters

To ease a massive backlog of special education complaints in New York City, state officials on Monday proposed changes to rules about who can preside over those cases. They included a controversial idea: allowing people who are not attorneys to apply.

Other proposed shifts include opening up the positions to lawyers licensed in states other than New York and allowing testimony and hearings to take place over video conference.

The city is facing more than 10,000 complaints, with just 67 so-called impartial hearing officers available to oversee the cases. In one instance, a single hearing officer had more than 1,700 cases on his plate, Chalkbeat previously reported. Families may file these complaints because their child is not receiving mandated services, because they don’t believe their child is in the appropriate classroom setting, or because they want the city to cover tuition for a private school, arguing that no public school can meet their child’s needs.

Currently, officers hearing those cases must have a New York-state law license and two years of experience practicing in the fields of education, special education, disability rights, or civil rights. Under the recommended changes, lawyers wouldn’t need a New York license and could have one year of relevant experience, instead of two. In addition, administrative law has been added to the list of acceptable experience.

Changes would also open up the position to non-lawyers who hold a master’s degree in education, special education, psychology, or a “related field.” They would also need two years of experience “applying knowledge” of state or federal special education laws and regulations in education or a “related” field, though it wasn’t immediately clear what sort of work would qualify.

If the Board of Regents approves the changes, New York would be one of nine states to allow people without law degrees to oversee these types of complaints.

The state’s goal is to expand the pool of people who can become hearing officers. The shortage of officers is also driven by issues with pay, advocates have argued. Hearing officers sometimes earn less than half of the maximum $100-per-hour rate set by the state for certain tasks, discouraging officers from taking on complex cases. In February, the city issued a new compensation policy, which includes doubling the administrative fee for hearing officers from $100 to $200 per case and paying more money for decisions involving complex complaints.

Officials will collect feedback over the next two months before the Board of Regents votes on the proposals. The state oversees the program, hires officers, and sets their maximum pay rate. The city is responsible for running the hearing office and pays officers for certain tasks, such as writing opinions.

“We own this,” said Chancellor Betty Rosa during Monday’s monthly Board of Regents meeting, explaining that under federal education law, the state is responsible for overseeing how its districts are treating students with disabilities. “This is on the state as an ultimate issue.”

But since the idea to open up the position was first floated in January, groups that provide legal services to low-income families have raised concerns about what would happen to the quality of cases if people without legal training were allowed to oversee them. Such a change would only apply to New York City; places outside of the city did not support it, and the case backlog is a problem specific to New York City, according to the state’s memo about the proposal.

A letter signed by representatives from nine groups noted that these cases are “complex” and require officers to review “complicated records,” hear testimony, and rule on objections. Any improper handling of those cases could mean more appeals to decisions and could further delay the process, they said. That would leave low-income families who can’t pay for extra services without a solution for even longer than it currently takes, they argued.

Cases are required to be resolved within 75 days, but the average is now 259 days in New York City.

Another coalition of attorneys sent a letter to state officials raising similar concerns on Feb. 14.

“While we agree that the extreme delays prohibiting the timely resolution of our clients’ claims must be addressed with urgency, we nevertheless fear that adopting an emergency regulation that would allow non-attorneys to serve as [hearing officers]—even as a stopgap measure—would compromise the quality and integrity of the hearing process and further harm a student population that is the most severely injured by the Hearing Office’s current crisis,” according to the letter sent Friday to state officials.

Members of the Board of Regents pushed back on that concern. Vice Chancellor T. Andrew Brown, a lawyer with 35 years experience, said having a law degree doesn’t necessarily make someone more equipped to handle these cases. Officials pointed to the five-day training applicants receive, followed by an exam they must pass. They must also submit a resume, three references, a writing sample, and be interviewed before the training.

“There already is a strong vetting process, even for attorneys who want to be impartial hearing officers, so this is not an opening of the door just to get bodies,” Brown said.

But state officials are “looking in the wrong place,” said Todd Silverblatt, an attorney with Mobilization for Justice, one of the groups that signed Friday’s letter. Instead, he said, they should be fixing the underlying issue of why so many children aren’t receiving the right services at school and finding ways to remediate unnecessary delays in these cases. “I think they have to start looking at the New York City DOE and what can be changed to address this situation in the impartial hearing office,” Silverblatt said.

Nelson Mar, an attorney at Bronx Legal Services, recalled a recent case where a client filed a hearing request and waited one year to receive one — only for district officials to present no defense, a situation he said is not rare. Meanwhile, Regent Christine D. Cea called the proposal a “Band-Aid,” and added that officials must “develop a process that really works.”

“We have been working with the state on improving the impartial hearing process, increasing the pool of hearing officers, and reducing delays,” wrote Danielle Filson, a city education department spokesperson, in a statement. “We have a shared goal of ensuring our students and families can pursue their due process rights quickly and remain focused on this work.”

The proposed changes are one part of the state’s “deep dive” into improving special education in New York City, including looking at ways to improve preschool special education services, said Christopher Suriano, the state’s assistant commissioner of special education policy. Suriano also pointed to the state’s monitoring of city special education services through a compliance assurance plan.

The state education department will accept feedback on the proposals through May 18. The Regents will likely vote on the proposal in July.

Main Image: Courtesy Chalkbeat