October 15, 2019

Elizabeth Berlin
Interim Commissioner
New York State Education Department
89 Washington Avenue
Albany, New York 12234
Richard A. Carranza
Chancellor
New York City Department of Education
52 Chambers Street
New York, NY 10007
RCarranza@schools.nyc.gov

Dear Interim Commissioner Berlin and Chancellor Carranza:
We are a group of legal services organizations and attorneys who advocate for the families of
New York City children who have disabilities requiring special education. We write to raise
significant concerns that the New York City Department of Education (“NYCDOE”) is
habitually failing to meet its obligations under the Individuals with Disabilities Education Act
(“IDEA”), its implementing regulations, and New York State Department of Education
(“NYSED”) regulations to provide impartial due process hearings, conducted by Impartial
Hearing Officers (“IHOs”), in a timely manner.
The purpose of this letter is to reiterate NYCDOE’s and NYSED’s legal obligations to provide
due process hearings in a timely manner; present real world examples of the educational impacts
these delays are causing; offer practical solutions to begin to curb this problem; and request an
immediate meeting with State and City decision makers to discuss our concerns.
Through our advocacy for children and parents, we have all personally witnessed these illegal
delays and the impacts they have on some of the most vulnerable children in New York City.
This letter should not come as a surprise. For years, NYSED has “documented that
parents/guardians of students with disabilities are not being provided timely access to an
impartial hearing upon the filing of a due process complaint notice with NYCDOE,”1 and that

1

New York City Department of Education Compliance Assurance Plan, May 2019 (New York
State Education Department, Office of Special Education) (“CAP”), Attached as Exhibit A, at 2.

 -2“NYCDOE fails to provide parents access to adequate due process after a complaint has been
filed.”2
NYSED has concluded that “NYCDOE has multiple outstanding findings of noncompliance
involving the requirements to ensure proper procedural safeguards to students and parents, and
the provision of programs and services to preschool and school-age students with disabilities,”
and that despite NYSED’s efforts to work with NYCDOE to resolve these issues, those efforts
have “not resulted in the systemic change necessary to sustain compliance and/or scale-up
effective approaches to ensuring compliant policies, procedures, and/or practices in the identified
areas.”3
NYCDOE Fails to Meet Its Obligations to Provide Timely Due Process Hearings
The right to challenge adverse special education determinations through the complaint and
hearing process is among the most critical protections the IDEA provides to parents. See Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 205
(1982) (“[T]he importance Congress attached to [IDEA’s] procedural safeguards cannot be
gainsaid.”). Integral to these procedures are strict timelines imposed by federal and state law.
Both federal and state regulations explicitly require that an IHO issue a final decision on any due
process complaint no later than 45 days after the expiration of the 30-day resolution period. 34
C.F.R. § 300.515(a); 8 N.Y.C.R.R. § 200.5(j)(5). New York state law further protects parents’
right to timely determinations on their due process complaints by, for example, requiring that the
hearing process begin within the first fourteen days of the federally-mandated resolution period,
prohibiting appointment of IHOs unable to meet that deadline, and severely curtailing the
circumstances in which the mandated timeframes may be exceeded. See, e.g., 8 N.Y.C.R.R.
§ 200.5(j)(3)(iii)(b) (fourteen-day requirement); id. § 200.5(j)(3)(i)(b) (IHOs); id.
§§ 200.5(j)(5)(i)–(iv) (limits on granting extensions of time).
As courts routinely recognize, the time constraints on due process hearings are fundamental to
the IDEA’s statutory scheme. “[The] failure to provide a timely due process hearing to plaintiffs
is not an unimportant or technical violation of the procedural safeguards provided for in the
IDEA. Rather, it is the denial of a fundamental component of the due process protections
afforded by the statute.” Blackman v. Dist. of Columbia, 277 F. Supp. 2d 71, 78 (D.D.C. 2003).
The reason is clear: delay causes immediate and real harm to the students IDEA is designed to
protect. “[T]he brevity of the 45–day requirement indicates Congress’s intent that children not
be left indefinitely in an administrative limbo while adults maneuver over the aspect of their
lives that would, in large measure, dictate their ability to function in a complex world.”
Engwiller v. Pine Plains Cent. School Dist., 110 F. Supp. 2d 236, 240 (S.D.N.Y. 2000). As a
practical matter, the failure to timely adjudicate due process complaints often has the effect of
denying children their statutorily mandated free appropriate public education (“FAPE”), and a
sufficiently egregious delay “can itself constitute the denial of a free appropriate education.”
Blackman, 277 F. Supp. 2d at 79; see also Schmelzer ex rel. Schmelzer v. New York, 363 F. Supp.
2

Id., at 18.

3

Id., at 1.

 -32d 453, 459 (E.D.N.Y. 2003) (“Inordinate delays in the decision making process deprive those
students of the rights provided to them under the IDEA and cause those students to suffer
irreparable harm.”).
The responsibility for ensuring compliance with these critical deadlines rests with NYCDOE
and, ultimately, with NYSED. 20 U.S.C. § 1412 (a)(11)(A); 34 C.F.R. § 300.149(a) and
300.515(a)–(b); and 8 N.Y.C.R.R. § 200.5(j)(3). Egregious delay gives rise to liability by those
actors, from which affected students may seek legal redress in court, including on a class basis.
See, e.g., Blackman, 277 F. Supp. 2d at 79, 85–89 (granting preliminary injunction in lengthy
class litigation to redress systemic delays in District of Columbia due process hearings); L.V. v.
N.Y.C. Dep’t of Educ., No. 03 Civ. 9917, 2005 WL 2298173, at *8 (S.D.N.Y. Sept. 20, 2005)
(granting certification to class of students harmed or at risk of being harmed by systemic delays
in implementing IHO decisions); Schmelzer, 363 F. Supp. 2d at 459–62 (certifying and granting
summary judgment to class harmed by State Review Officers’ violations of federal timeliness
requirements).
NYCDOE has woefully failed to meet its obligations to timely provide due process hearings. As
described in the CAP, “NYCDOE has been identified as not meeting the requirements of IDEA
for 13 consecutive years due to performance and/or compliance outcomes for the subgroup of
students with disabilities”4 (emphasis added). As NYSED put it, NYCDOE is “a district that
needs intervention in implementing these requirements.”5
The CAP is replete with descriptions of NYCDOE’s failure to meet required deadlines, including
specifically that “NYCDOE fails to afford students with disabilities and their parents with
required procedural safeguards.”6 An independent report commissioned by NYSED found that
the “average number of days a case is open in New York State far exceeds the abbreviated
timeline established in the IDEA and what is reasonable under an extended timeline.”7 For
example, in the 2017-2018 school year, the average number of days a case was open (“case
length”) in New York City was 202 days.8 In the 2018-2019 school year, it was 225 days.9 By
comparison, the average case length in the rest of New York State was 120 and 140 days in
2017-2018 and 2018-2019, respectively.10 As described in the External Review, this “failure to
4

Id., at 2.

5

Id.

6

Id., at 18.

7

External Review of the New York City Impartial Hearing Office, February 22, 2019 (Deusdedi
Merced, Special Education Solutions, LLC) (“External Review”), attached as Appendix B, at 18.
8

Id., at 19.

9

Id. (as of January 2019).

10

Id. (as of January 2019).

 -4promptly resolve due process complaints keeps children in ‘administrative limbo’ and, for some,
delays access to free appropriate public education to which they are entitled.”11
The independent report found that in the 2016-2017 school year, of the due process complaints
that resulted in written decisions, only 14% were decided within the mandatory 45-day
timeline.12 The majority—71%—were decided within extended timelines, and 15% were
untimely.13 The report assumed the extended timelines were based on valid requests, but stated
that there have been allegations of IHOs unilaterally extending the timelines absent valid
requests,14 something we have experienced firsthand. Indeed, according to the External Review,
the number of extensions granted in New York State is “exceptionally high,” and New York City
accounted for over 95% of all extensions granted in the 2015-2019 school years.15 For example,
in the 2017-2018 school year, of 36,369 extensions granted state-wide, 35,157 (or 97%) were in
New York City.16
IHOs in New York City also have a “startling” number of recusals, with 5,634 in the 2017-2018
school year (compared with 30 in the rest of the state), and 6,968 recusals as of January 2019 in
the 2018-2019 school year (compared with 11 in the rest of the state).17 Significantly, the vast
majority of these recusals relate to scheduling and availability, not substantive matters.18 The
“disproportionate number of recusals are an impediment to the timely completion of due process
hearings.”19 Overall, the External Review concluded that “these systemic deficiencies are
symptomatic of an unhealthy hearing system that requires immediate intervention.”20

11

Id., at 18–19.

12

Id., at 15.

13

Id.

14

Id., at 15 n.41. See, 34 CFR § 300.515(c); and 8 NYCRR 200.5(j)(5)(i) (“The impartial
hearing officer shall not solicit extension requests or grant extensions on his or her own behalf or
unilaterally issue extensions for any reason.”).
15

Id., at 16–17.

16

Id., at 17.

17

Id., at 17–18.

18

Id., at 17 n.48 (explaining that the term “recusal” is a “misnomer” in this context, because
IHOs are assigned “on an automatic rotational appointment basis” and “[a]n IHO who is
appointed but simply unavailable, or . . . chooses not to accept the appointment, is deemed to
have recused him/herself”).
19

Id., at 17.

20

Id., at 20.

 -5These Delays Cause Serious Harm to New York City Children
These egregious and systemic delays are continuing to cause material, demonstrable harm to the
children we represent. Every day of delay is another day that these children miss out on critical
services they need to develop and learn. And these delays disproportionately affect low income
children whose families do not have the means to pay for the services they require on their own
while waiting for their claims to be processed. Below are several examples of children
experiencing real injury from NYCDOE’s delays. As these families’ experiences make clear,
many compounding dysfunctions contribute to the delays, including multiple recusals by
successive IHOs, overburdened and overscheduled IHOs, unexplained gaps between hearing
dates, delayed transcripts, improperly entered compliance deadline extensions, poor
communication from NYCDOE and the Impartial Hearing Office, and an inefficient process and
protocol for reaching settlement in uncontested cases. These dysfunctions led to between six and
twelve months of delay in the below examples, including one student whose hearing still has not
yet been completed and another who is still waiting on a decision after a hearing.
Zachary Wang21 is a 10-year-old boy with emotional disturbance whose school failed to
implement his IEP. Zachary’s aunt requested a due process hearing in February 2019. An IHO
was assigned immediately, but replaced without explanation three weeks later by a new one, who
in March scheduled a hearing in late June. The night before the June hearing, the IHO recused
himself, citing an inability “to conduct the hearing in a timely manner.” Several IHOs
subsequently were assigned and recused themselves without explanation. Counsel later learned
that many of these IHOs had, on their own and without a request from either party, extended the
compliance deadline without notice to either party. The seventh assigned IHO scheduled a
telephonic hearing in August, but then, without notice, failed to appear for it because, as he later
acknowledged, he had seven other matters that morning. Only after counsel wrote NYSED was
an IHO assigned who could timely hear the matter. At the pre-hearing conference in August,
NYCDOE offered a settlement for the first time, after other NYCDOE representatives had
refused Zachary’s settlement requests for months on the ground that they lacked authority to
agree to a settlement.
Matthew Adebayo is a non-verbal 8-year-old with autism and developmental delay, who
engages in constant aggressive behaviors. For two years, NYCDOE paid an independent agency
to provide Matthew 20 hours per week of home-based behavior management services, leading to
significant progress. In March 2019, NYCDOE issued an IEP discontinuing the services.
Matthew’s parent filed a due process complaint in April 2019, but the earliest hearing date
permitted by the assigned IHO’s packed schedule was September—and even then, for only two
hours a day, so the hearing would take three nonconsecutive days spanning three weeks.
Matthew’s services ended in June 2019, but the hearing was completed only on September 19.
No decision has yet been issued. Because his family has been unable to pay for services in the
meantime, Matthew has regressed nearly to his levels of aggressive behavior from two years ago.

21

The names and certain identifying features have been changed to protect the privacy of the
students.

 -6Paul Stoddard is a 12-year-old with autism, attention-deficit/hyperactivity disorder, and
intellectual development and adjustment disorders. Following severe academic and behavioral
problems, Paul’s parents requested a due process hearing on June 29, 2016. A hearing was
calendared for September, but in late August NYCDOE told Paul’s parents the case would settle,
and thus requested an adjournment to October 31. NYCDOE did not follow up, however. In
November 2016, the IHO recused himself and a new one was appointed. Then, the parents heard
nothing until February 2017. After counsel’s inquiry, the Impartial Hearing Office stated that
two adjournments had been granted to prepare witnesses—but no party had requested or even
knew about those. That IHO recused himself, on Paul’s parents’ request, and a third IHO
scheduled a hearing for May 1. In April, NYCDOE first told counsel the case had been settled,
but a week later, NYCDOE informed parents that the case was in fact rejected for settlement.
The hearing began on May 1, but was continued until June 21 because of the IHO’s schedule.
Ultimately—more than a year from the filing date, during which time Paul struggled
behaviorally and academically—the IHO ruled for Paul’s parents.
Dario Kahler is a third grader with a speech and language disability. His mother’s requests to
restore speech and language therapy, which NYCDOE had discontinued, and for a
paraprofessional, were denied. Dario’s mother filed an impartial hearing request in February
2018 and subsequently amended it, but the Impartial Hearing Office apparently never received
the amended request. Counsel resubmitted it in July 2018. Although NYCDOE conceded it had
denied Dario a free appropriate public education, and granted the services and a paraprofessional
in December 2018, it refused compensatory services. The IHO did not hold a hearing until the
end of January 2019, and the Impartial Hearing Office did not provide the transcripts until June
2019—almost six months after the hearing and eighteen months after the original request. To
date, the IHO has not issued a decision. Dario has thus started school without the services he
needs to compensate for NYCDOE’s admitted denial of a free appropriate public education.
Maria Mulloy is a 12-year-old with emotional disturbance whose self-contained class and
related services were inadequate to meet her needs. On August 31, 2018, Maria’s mother filed a
due process complaint. On September 10, 2018, an IHO was assigned, but the IHO did not hold
the hearing until seven months later, on April 10, 2019. NYCDOE did not appear or contest the
allegations. The Impartial Hearing Office did not provide the transcript until almost three
months later, and did not issue a final decision granting her services until August 30, 2019—a
full year after her mother filed the hearing request.
Recommended Priorities
In light of the deficiencies in the current process, NYSED and NYCDOE must take immediate
steps to address the following priorities, each of which is critical to protecting our clients’ federal
and state rights to timely obtain hearings and resolutions of their cases.
Timely Obtaining a Hearing
1.

Appoint Additional IHOs. NYSED should appoint substantially more IHOs to meet
the need for adjudicating complaints, including by increasing its recruiting outreach

 -7efforts. The current number of IHOs—71 in fiscal year 201822—is vastly insufficient
to meet the number of hearings requested in New York City: over 7,100 during the
2017-2018 school year.23
2.

Improve IHO Compensation. NYCDOE should (a) revise the IHO compensation
scheme to fairly compensate officers; (b) timely compensate IHOs; and (c) develop
compensation approaches that will incentivize IHO conduct that promotes timely and
compliant resolution of complaints. Currently, “[i]nadequate compensation has
resulted in IHOs engaging in widespread practices that are inconsistent with
appropriate, standard legal practice and best practices.”24

3.

Improve Case Management for IHOs. NYSED/NYCDOE should limit the number
of cases that can be assigned at one time to an IHO, limit the number of cases IHOs
can calendar on one day, and create transparency in case selection so as to limit
unnecessary and multiple recusals. Currently, for example, NYCDOE “automatically
appoint[s] an IHO to a due process complaint without first confirming his/her
availability,” which “is inconsistent with the regulatory requirement” and “is the
primary reason for the high number of recusals in New York City.”25

4.

Additional Hearing Offices. NYCDOE should establish a hearing office in each
borough, similar to the structure of the NYCDOE suspension hearing offices. Having
multiple locations would help with the overcrowding in the current hearing office and
streamline the hearing process. “[Eleven] hearing rooms is simply not enough, when
on average in the past two school years, there have been over 100 matters on the
calendar per day.”26

5.

Improve the Hearing Spaces. NYCDOE should provide additional space to conduct
hearings, as well as separate waiting rooms for NYCDOE and parents/representatives
so that the parties can have confidential conversations. “The absence of a designated
area for parent attorneys/advocates to have confidential discussions with their clients
hinders the right of parents to be” advised by counsel.27

6.

Hire Additional Hearing Office Staff. Given the delays experienced in the Impartial
Hearing Office, NYSED/NYCDOE should hire more personnel for the office.

22

External Review, at 34.

23

CAP, at 19.

24

External Review, at 31.

25

Id., at 43.

26

Id., at 37.

27

Id., at 39.

 -8Timely Obtaining Resolution
7.

Improve the Settlement Process.
NYSED/NYCDOE should implement a
streamlined settlement protocol that clearly delineates which entities/actors are
responsible for milestones in the process and authorizes the individual representing
NYCDOE in the impartial hearing to settle cases. This process should include a
commitment from NYCDOE to empower its representatives to engage in true
settlement discussions and settle cases, particularly where NYCDOE does not intend
to put on a case.28

8.

Implement Pendency Automatically. NYSED/NYCDOE should end the practice of
requiring hearings and pendency orders where pendency is uncontested.29
Alternatively, NYSED and NYCDOE should investigate the development of an
alternative track to handle pendency hearings with separate dedicated staff.

9.

Make Mediation and Alternative Dispute Resolution More Readily Available.
NYSED/NYCDOE should make mediation more readily available and accessible as a
means to resolve cases without going to hearing, including by training Impartial
Hearing Office staff and NYCDOE employees on the availability of alternative
dispute resolution. Currently, NYCDOE “is not resolving or attempting to resolve
enough matters through mediation.”30

10. Permit IHOs to Enter So-Ordered Judgments. IHOs should have the authority to
enter a so-ordered judgment against NYCDOE if an NYCDOE representative
represents that NYCDOE does not intend to defend its failure to provide a free
appropriate public education or does not object to the parent’s request for remedies.
This judgment should then be directed to the Implementation Unit in order to
streamline services and remedies for the student.
It is incumbent on both NYCDOE and NYSED to take immediate action on these priorities. The
current pattern of extensive delays violates the procedural protections that federal and state law
afford to our clients in precisely the manner these safeguards were designed to prevent. The legal
responsibility for redressing these violations lies with both agencies.
We hope to work collaboratively with your offices to resolve our concerns and improve
NYCDOE’s hearing process for all New York City children. Please note, however, that these
egregious delays have impaired our clients’ rights under federal and state law, and we will
consider all action necessary to seek redress on their behalf. We look forward to a reply by
November 15, 2019, and to scheduling a meeting (or meetings) with you within thirty days of
28

CAP, at 19 (“NYCDOE does not defend numerous cases at hearing, but rather admits that it
did not provide [free appropriate public education] and does not offer to settle these cases.”).
29

Id. (“NYSED has documented that NYCDOE requires a hearing or IHO determination for
pendency, even when a student’s pendency is not in dispute.”).
30

Id., at 21.

 -9this letter. Such a meeting should include, at a minimum, individuals from your agencies with
knowledge of the problems described in this letter and the authority to commit to any agreedupon solutions. Please address any reply to either Nelson Mar at nmar@lsnyc.org or Danielle
Tarantolo at dtarantolo@nylag.org.
Sincerely,
__________/s/____________________

__________/s/____________________

Nelson Mar
Amy Leipziger
LEGAL SERVICES NYC
Bronx Legal Services
Brooklyn Legal Services
Queens Legal Services
Staten Island Legal Services
40 Worth Street, Suite 606
New York, NY 10013
(646) 442-3600
nmar@lsnyc.org
aleipziger@lsnyc.org

Danielle F. Tarantolo
Elizabeth Curran
Sandra Robinson
Laura Davis
NEW YORK LEGAL ASSISTANCE GROUP
7 Hanover Square
New York, NY 10004
(212) 613-6551
dtarantolo@nylag.org
ecurran@nylag.org

__________/s/____________________

__________/s/____________________

Susan J. Horwitz
Education Law Project
THE LEGAL AID SOCIETY
Harlem Community Law Office
2090 Adam Clayton Powell Blvd, 3rd Floor
New York, NY 10027
(212) 426-3061
shorwitz@legal-aid.org

Cara Chambers
Education Advocacy Project
THE LEGAL AID SOCIETY
199 Water Street, 3rd Floor
New York, NY 10038
(212) 577-3342
cachambers@legal-aid.org

__________/s/____________________

__________/s/____________________

Rebecca Shore
ADVOCATES FOR CHILDREN
151 West 30th Street, 5th Floor
New York, NY 10001
(212) 822-9574
rshore@advocatesforchildren.org

Roberta Mueller
NEW YORK LAWYERS FOR THE PUBLIC
INTEREST
151 West 30th Street, 11th Floor
New York, NY 10001-4017
(212) 244-4664
rmueller@nylpi.org

 -10-

__________/s/____________________

__________/s/____________________

Todd Silverblatt
MOBILIZATION FOR JUSTICE, INC.
100 William Street, 6th Floor
New York, NY 10038
(212) 417-3833
tsilverblatt@mfjlegal.org

Melissa Accomando
Anna Arkin-Gallagher
BROOKLYN DEFENDER SERVICES
177 Livingston Street, 7th Floor
Brooklyn, NY 11201
(718) 254-0700
maccomando@bds.org
aarkingallagher@bds.org

cc:

Hon. Andrew M. Cuomo
(Governor, New York State)
Hon. Letitia A. James
(Attorney General, New York State)
Hon. Thomas P. DiNapoli
(Comptroller, New York State)
Alison B. Bianchi
(Counsel and Deputy Commissioner for Legal Affairs, NYSED)
Christopher Suriano
(Assistant Commissioner, Office of Special Education, NYSED)
Cathryn Tisenchek
(Supervisor, Due Process Unit, NYSED Office of Special Education)
Hon. Bill de Blasio
(Mayor, City of New York)
Zachary W. Carter.
(Corporation Counsel, City of New York)
Howard Friedman
(General Counsel, NYCDOE)
Mariam Qureshi
(Director, Special Education Unit, Office of the General Counsel, NYCDOE)
Jordan Dressler, Esq.
(Civil Justice Coordinator, Office of Civil Justice, City of New York)

 -11Hon. Jumaane D. Williams
(Public Advocate, City of New York)
Hon. Scott M. Stringer
(Comptroller, City of New York)
Hon. Corey Johnson
(Speaker, New York City Council)
Hon. Mark Treyger
(Chair, Committee on Education, New York City Council)