NYC Must Address Tuition Reimbursement Delays

Image: A piggy bank drowning.

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.

Update on the DOE’s New “3-Year Agreements”

We wrote to our clients about the DOE's new 3-year settlement agreements in February after we became aware that the City might start offering them to some clients who sue for private school tuition reimbursement. At the time, we had just received our first of such offers on behalf of a client and we weren’t thrilled with the language of the offer.

Since then, more of you have heard from us letting you know that the DOE is offering you one of these “deals.” Understandably, clients have a lot of questions about the pros and cons, and each family’s situation is unique. For some, the risks and downsides outweigh the benefits. For others, the reverse is true and taking the deal makes a lot of sense.

Now that we’ve seen more of these offers come in, we want to revisit this issue again on the blog, clearly listing the pros and cons. Please note that this is based on the language of the offers we have seen thus far. The DOE could always change the terms in the future.

•    Might speed up the tuition reimbursement process in years two and three of a 3-year agreement.
•    Might secure a settlement amount you are happy with for two additional years.

•    If tuition increases, you are basically locked into the dollar amount you agreed to; we are only allowed to negotiate a small Consumer Price Index adjustment. Further, any negotiation of the dollar amount of your settlement completely negates the promise of a “speedier” process.
•    The agreement is void if the parent is not fully cooperating with the IEP process or if the IEP changes “significantly.”
•    The child can’t change schools without voiding the agreement.
•    The settlement must still be approved each year by the NYC Comptroller’s office—usually the slowest part of the reimbursement process.
•    Even with this agreement, the family must still go through nearly the same process: private evaluations/updates as needed, IEP meeting, ten-day notices prepared by an attorney, submission of payment and other records, and, as mentioned above, comptroller approval each year.
•    And finally: Nothing in the agreement guarantees that the DOE will settle your case in years two and three. 

That last bolded bullet point is a big one. The city could sign one of these three-year agreements with you and still decide to litigate and take your case to an impartial hearing; they aren’t promising to settle, they are promising to pay you a certain dollar amount if they decide to settle. 

In his 2014 Special Education Initiative, the Mayor promised, among other important things, to improve the speed of the tuition reimbursement process.  In politics, it’s important to be able to say you are doing something, and while we applaud any effort to make the process for reimbursement move more quickly, the greatest inefficiencies in the speed of reimbursements seem to reside in the approval process with the NYC Comptroller’s office, and the nature of this problem has yet to be fully explained or addressed. 

One final note: Some people have called to ask how they can get a 3-year agreement for their child’s case. Unfortunately, these settlement agreements can’t be requested by a parent; they are offered by the DOE on a case by case basis. It remains unclear at this early stage what criteria the DOE is using to decide who to offer them to and who not to.

    If we receive a renewable agreement offer from the DOE for your case, we will reach out to talk about the particulars of your situation. 

DOE responds to NYC Council Members on Tuition Reimbursement Delay Issue

We have reported to you extensively about our efforts to advocate for an end to the unacceptable delays in tuition reimbursement payments to our clients. When we last updated you, we reported that, at our request, City Council Education Committee Chair Daniel Dromm, along with Council Members Ben Kallos and Daniel Garodnick, sent a powerful letter to Mayor De Blasio, asking him to honor the commitments his administration made back in 2014 to special needs students and their families.

The Department of Education has now responded to the Council Members' letter, admitting that there have been problems and that there is room for further improvement. It's good to hear that the DOE is cognizant of this and we are hopeful that they will improve their process for 2017-18 based on this stated understanding. The full DOE response is embedded at the bottom of this article. (If you are reading this via our email list, you will need to visit our website to view the letter.)

In its letter, the DOE also made it clear that a significant factor contributing to delays is out of their direct control. Namely, they pointed to rules governing NYC Comptroller approval. Here is what they said:

As noted, as part of the settlement process in each case, DOE submits memoranda and supporting documentation to the New York City Comptroller in which it seeks settlement authority from the Comptroller. One of the challenges of the new process and its subsequent expansion had been a significant increase in the volume of requests to the Comptroller's office, in a concentrated period, resulting in lengthened review time. The Comptroller's office has since built administrative systems to speed up its review process. However, such systems have resulted in new, and more complex requirements that must be followed by the DOE.

We are very grateful to our elected officials for taking action on behalf of our client families. If you have a moment, particularly if you happen to be a constituent of Council Members Dromm (District 25, Queens), Kallos (District 5, Manhattan), or Garodnick (District 4, Manhattan), please take a moment to thank them for their efforts on behalf of New York's special education families.

We will continue to update you as we move forward with our advocacy efforts.

Early Intervention

Although the majority of our work involves helping children who are 3 and older, we cannot tell you how often we hear heartbreaking stories of parents who did not know they were entitled to FREE EARLY INTERVENTION (“EI”) services.  Or we meet parents who were aware that EI existed, but they were told by EI officials that their clearly struggling child was “ineligible.”   In fact, it shocks us how many of these clients whose parents say they were turned down by EI, are later diagnosed with a myriad of disorders, including Autism.   

As a Parent, you have the right to a comprehensive evaluation of your child - this is called a MULTIDISCIPLINARY EVALUTION (MDE), and is defined below.  And if your child is not deemed eligible, you have the right to fight that determination.  As you would expect, time is of the essence because your child is only eligible for EI services for such a short period of time, so we want to reach as many of you as early on as possible, so that you can successfully navigate the EI process.   

To this end, we are currently working on a sequel to Regina’s popular “How to Survive Turning Five” entitled “How to Survive EI”…. Stay tuned! 


                REFERRING YOUR CHILD IS EASY and takes seconds

So don’t put it off!

Professionals such as doctors can refer your infant or toddler to the EIP, unless you object, when there is a concern about your child’s development. If you have a concern, you can also refer your child to the Early Intervention Program in the county where you live. County contacts can be found online at: infants_children/early_intervention/county_eip.htm Or, you can call the “Growing Up Healthy” 24-hour Hotline at 1-800-522-5006; in New York City dial 311