Skyer Law Testifies at Packed City Council Hearing

Yesterday, the NYC Council Education Committee held a packed oversight hearing on the provision of special education services. Parents and advocates waited all afternoon and early evening hours to give powerful testimony about a range of issues—long gaps in services, non-implementation of IEPs, lack of translation services, stories of children being badly injured or mistreated in schools, and more.

Jesse Cole Cutler and Sonia Mendez-Castro, two of our firm’s partners, testified on the issue of delays in the settlement process and in payments on pendency cases. They also alerted the Committee to a growing crisis affecting all due process complaints—there aren’t nearly enough Impartial Hearing Officers willing to hear cases. (Read their testimonies.)

To learn more about what happened at the hearing, read Chalkbeat’s reporting: “New York City Council grills top education department officials on special education.”

It is not too late for our clients and the providers they work with to submit testimony. This is one of those rare window of opportunity moments—a powerful, friendly government body is actively listening to what the special education community has to say. NYC parents, providers, and schools should all take a few minutes to compose an email explaining in their own words how delays in reimbursement, non-payment of orders, and any other special education issues have personally affected their families and communities.

 Email your testimony to both Council Member Rosenthal’s Legislative Director Ned Terrace at nterrace@council.nyc.gov and Education Committee Senior Legislative Counsel Malcom Butehorn mbutehorn@council.nyc.gov directly.

Testimony is being collected until the end of Thursday, February 28th.

Monday: An Opportunity to Testify on Tuition Reimbursement Delays at City Hall

The New York City Council Education Committee will be holding an oversight hearing focused on the provision of special education in New York City on Monday at 1pm in City Hall Chambers. Members of the public are welcome to testify on any of the bills that are being considered as part of that oversight hearing.  

Of the five bills being considered, the one most relevant to families who must sue New York City in order for their children to receive an appropriate education has been introduced by Council Member Helen Rosenthal of the Upper West Side.

Intro 1380 requires the DOE to annually report on the claims for special education tuition or services. If this bill is enacted, the DOE would have to provide a report each November 1st on a number of data points including when individual claims are received and responded to. If a claim is referred for settlement, the district will have to say when that happens, when a first settlement offer is made, when an agreement is transmitted to the Comptroller for approval, when the Comptroller’s office gives its approval, and when a settlement agreement is signed by the parent and the district. The district will also have to say when a first payment is made for tuition or services pursuant to a written settlement agreement. If a complaint goes to impartial hearing, the district will have to say when the hearing commences and when a decision is rendered. All this data will be collected with each individual case having its own row of a data in the DOE’s report, but without identifying information.

In addition, the DOE will be required to report this as aggregated data given in percentages to show, overall, how quickly the city is processing claims. For example, the DOE would have to give percentages of ten-day notices that are responded to within 15 business days, within 16-30 business days, or greater than 30 days.  

This bill will go a long way in casting sunlight on how poorly the City is living up to the promises of Mayor de Blasio’s 2014 Special Education Initiative, in which his administration committed to expedite decisions on whether to settle within 15 days of notice, reduce extended legal battles, and to expedite payments to families, among other promises. As we have said in the past, while more cases are now referred for settlement and higher dollar amount settlements are being offered than in prior administrations, these improvements have been completely overshadowed by increasing delays at every stage of this process. It used to take around nine months from filing a claim to receiving a first payment for tuition reimbursement. Now, we advise clients to be prepared for it to take up to two years.

If you can’t afford to front two years of tuition, it hardly matters what dollar amount the settlement is. The basic math of this is why these delays have a particularly cruel impact on middle class families. We believe that these proposed reporting requirements will help New York families, advocates for special education students, and policymakers who care about these issues by giving much needed insight on where in the pipeline the biggest delays are located as well as the statistics we all need to monitor how well the system is working over time.

If you have personal experience with reimbursement delays and can speak to how this issue has impacted your family, professional practice (SEITs, school administrators or other related service providers), you should consider testifying in person or submitting testimony by email.

You can testify in person. Bring 20 copies of your remarks to the hearing. The Department of Education will testify first. Lawmakers questioning government agencies often takes quite a bit of time (sometimes hours), so plan to be there for most of the afternoon. Also, since there are four other bills on special education topics being considered there may be a large number of advocates waiting to testify on those important issues too. After you speak for 3 minutes (it’s timed), lawmakers may ask you questions about your testimony.

You can also submit testimony in writing. It is best to do this by Monday. However, the record will be kept open for three additional days (until the end of the day on Thursday). Email your testimony to both Council Member Rosenthal’s Legislative Director Ned Terrace at nterrace@council.nyc.gov and Education Committee Senior Legislative Counsel Malcom Butehorn mbutehorn@council.nyc.gov directly.

Taking on Delays in Reimbursement and Pendency Payments in 2019

We are living through unprecedented times in our dealings with the NYC Department of Education. 

The process of suing for tuition reimbursement has always moved slowly. But in the past few years, the wheels of the bureaucracy have seemed to calcify. From start to finish it can now take up to two years for a parent to see any reimbursement on a settlement for tuition. And pendency orders, which should be paid out each month, are sometimes going unpaid for 6 months and longer.

These endemic, chronic delays represent the most dramatic change in practice that we have experienced in over a decade. Parents who are newer to this process may not realize that during Mayor Bloomberg’s tenure, the entire settlement process was generally completed within 9 months.

In 2014, Mayor De Blasio announced his Special Education Initiative, which resulted in immediate improvements in more cases being recommended for settlement (avoiding the risk of an Impartial Hearing), and in the DOE offering higher dollar amounts—all welcome, positive changes.

But these improvements have been completely overshadowed by the delays in repayment. If you can’t afford to front two years of tuition, it hardly matters what dollar amount the settlement is. The basic math of this is why these delays have a particularly cruel impact on struggling middle class families.

Our lawyers and paralegals spend part of each and every day hounding the DOE for updates on all of our cases. We have also been in contact with the senior supervisors at the DOE, with the Office of General Counsel at the DOE, and at the Comptroller’s Office.

But we know it’s not enough.

This year, we are focusing our external advocacy efforts on the issue of delays in settlement reimbursements and pendency payments. We have written to our allies in the City Council about this issue, and have begun to educate members of the City Council Education Committee.

We want you, our clients, to be empowered to also take action, and recently we have seen evidence that contacting your local City Council Member for help with your individual case is a strategy worth pursuing. This strategy has the added bonus of serving as a specific case study to your representative as we pursue policy changes on the macro level.

While your Council Member cannot do anything before your case has settled, it is perfectly appropriate for them to make inquiries when money owed to their constituents is unreasonably delayed due to the inefficiencies of a City agency. Hopefully, your Council Member is willing to help.

When you call, provide your name and address to demonstrate that you are a constituent, and then ask the Council Member to contact the City and resolve the issue (i.e. ask the City to pay you/the school/the provider the money owed). The Council Member will need information and/or documents from you to do this effectively. What they need will vary based on your particular situation.  

Scenario 1: Your case has settled, you have an “executed stipulation,” and now more than a few months have passed with no money back.

Your Council Member will need a copy of your executed stipulation. An “executed stipulation” (often casually referred to as a “stip”) is an agreement for settlement that you have signed and that the DOE has counter-signed. If you do not have a copy, ask your paralegal or attorney for a copy.

Scenario 2: Your case has settled, you have signed the stipulation, but the DOE has not counter-signed it in a timely manner.

The settlement you agreed to is either waiting for Comptroller review or the assigned DOE lawyer hasn’t sent it to the Comptroller’s Office. Ask your paralegal or attorney for the current status of your case.

When you call your Council Member, also provide them with your child’s name, student ID (OSIS) number, date of birth, and your case’s TDN (ten day notice) number or IHO (impartial hearing office) number (you will only have one of these numbers). If you do not know your TDN or IHO number, ask your paralegal or attorney for it.

Scenario 3: You have a pendency order, but the DOE is behind on payments.

The DOE is supposed to pay out the services agreed to under a pendency order every month. About 45 days after the required documents (which may include contracts, attendance records, invoices, and affidavits) have been submitted, it’s reasonable to consider a pendency payment late.  

When you call your Council Member, provide them with a copy of the IHO order you received in the mail. If you do not have it anymore, ask your paralegal or attorney for a copy.

---

Not sure who your City Council Member is or how to contact them? You can look them up using your street address on the City Council website.

NYC Must Address Tuition Reimbursement Delays

Image: A piggy bank drowning.

In 2014, Mayor Bill De Blasio announced his Special Education Initiative, pledging to ease the burden on parents with private special education tuition and fee claims by expediting decisions, reducing extended legal battles, reducing paperwork, and expediting payments.

We were cautiously optimistic. But four years later, we are heartbroken for our families. The city took something already broken and found new ways to shatter it.

The best thing you can say about the change we’ve seen since 2014 is that the DOE’s decision to settle on a ten-day notice is being made a little more quickly than in the past. However, the execution of settlement agreements is far too often deferred for many months longer. Depressingly, paperwork requirements have actually increased with the supposed move to “monthly” payments. And, most disastrously for our modest income families (and schools accepting Connors or pendency placements), payments to parents and schools are more delayed than ever.

This is a citywide problem affecting every lawyer in our bar and every school and private provider of special education services. Schools, parents, and attorneys can dot every ‘i’ and cross every ‘t,’ and call with polite reminders until they are hoarse, but the only thing dividing the parent or provider who receives a timely payment from the one who must refinance their loan is luck of the draw. It isn’t fair, and it isn’t right.

Last year, Council Members Dromm, Kallos, and Garodnick wrote to the Mayor to describe how these systemic delays were impacting their constituents. The DOE's General Counsel Howard Friedman wrote back and acknowledged the delays, but pointed the finger at the NYC Comptroller and “new administrative systems.”

We began the 2017-18 school year hopeful, but sober, and unfortunately we have not seen any real effort to address these issues. Earlier this week, we wrote to Mayor De Blasio and Chancellor Carranza to once again detail our concerns and demand that the City make good on its promises to the families of special needs children in New York City. We will keep you updated on any replies we receive. If you wish, you can forward this letter to your local City Council Member with a personal note about your own family’s experience. Every bit of advocacy helps.

What is Pendency?

[5/22/2020 – This article has been updated in light of recent caselaw on this topic.]

by Magda Labonté

Let’s begin by clearing up some common misconceptions:

• Pendency is not a special education program. It is a legal injunction.

• You cannot request pendency at an IEP meeting. Pendency is ordered by an impartial hearing officer (an administrative law judge).

• Your child is not entitled to pendency outside of the impartial hearing process.

• Pendency is not only for turning-five students.

• Pendency does not guarantee a specific school, classroom, or teacher, just the type of program.

• In some cases you can use your pendency entitlement for a different school or provider, but not always.

• Pendency does not mean a school or program is free.

So, what is pendency? Pendency is the IDEA’s (Individuals with Disabilities Education Act) way of preventing the disruption of your child’s education when the school district and the parents disagree on the special education services that are recommended in an IEP (Individual Education Program).

If you disagree with the program recommended at an IEP meeting, you probably know that you can decide to exercise your due process rights and file an impartial hearing complaint. This is where pendency comes in, solving the problem of how your child receives an education while the results of the impartial hearing process are pending.

Pendency is triggered by filing an impartial hearing complaint. It entitles your child to remain, or “stay-put,” in the program that you and the District last agreed upon. Pendency ends when a settlement agreement has been finalized, when you “withdraw,” or choose to end, your case, or when a hearing officer’s decision is rendered. If one of the parties appeals the hearing officer’s ruling, pendency continues until a final decision is rendered. This can span anywhere from a few months to the entire school year and beyond. 

In New York City, many people associate pendency with the turning-five process and so-called “preschool pendency.” When pendency is triggered in a turning-five case the “stay-put” program is the preschool (CPSE) program, so the child remains in their preschool program.

But pendency is an entitlement available to preschool and school-age children. It can be used to maintain the child’s last agreed-to IEP or, when applicable, the final decision of an impartial hearing proceeding.

The most common way we see this in action is when the parent of a school-age child goes to an impartial hearing for a tuition reimbursement case and wins. Then, the impartial hearing officer’s unappealed decision becomes the “stay-put” placement. If the parent exercises their due process rights the following year, they can seek an interim order on pendency, requiring that the DOE begin funding the “stay-put” program in the manner specified in the IHO’s pendency order. This can mean that the DOE pays for it directly or that the parent is reimbursed, depending on the specifics of the case.

Parents don’t have the right to take this pendency entitlement and move it to a different school, even if that same school is similar to the original program, unless that first program is no longer available to the child. Moving pendency to a different school or provider requires demonstrating to a hearing officer that the new program is “substantially similar” to the original one.

Even when you have your pendency entitlement in place, this does not mean you’re done with your case. The lawsuit that triggered the pendency order still must be resolved in either a final settlement or a final unappealed decision (if the case goes to hearing). In NYC, either process takes a great deal of time to finalize, resulting in the majority of the year’s tuition or fees being paid by the district. The timing varies in districts outside of NYC.

There is no requirement that a private school wait for funding from the school district, which can take time to be paid out. You can still be required to pay tuition on the school’s schedule. Your pendency entitlement would then be in the form of tuition reimbursement for the portion of the year that the lawsuit is open and pending.

You might be wondering what happens if you lose at a hearing. There’s good news here too, for parents with pendency orders. When you appeal a loss, the pendency order continues and the money still flows until settlement or a judgment by the State Review Office (SRO) is finalized. The parent is not responsible for any tuition or fees already paid by the district during the settlement or hearing process even if they ultimately lose.

It is for the above reasons that, in some cases, when a family cannot reach a satisfactory settlement with the DOE and we are forced to go to hearing that it can be a mixed blessing. Impartial hearings are inherently risky, stressful, time consuming, and expensive. But a win in an impartial hearing establishes a valuable entitlement: pendency.