Update on the NYC Impartial Hearing System Deusdedi Merced, Esq. www.spedsolutions.com SPECIAL EDUCATION SOLUTIONS © 2020 Special Education Solutions, LLC Page 1 of 14 01/12/2020 Introduction • Eligible children with disabilities have a right to FAPE • When a dispute arises, parent/school district can request hearing • State educational agency must ensure impartial, timely hearings, ability to exercise hearing rights, and qualified hearing officers (HO) • In NYS, SED certifies who is qualified to serve as HO, but each school district is responsible for administration of hearings • NYC created an impartial hearing office to administer hearings © 2020 Special Education Solutions, LLC Page 2 of 14 01/12/2020 7-PAK States - Comparisons Figure 1 2017-18 Comparisons with Similar Size States – Most Recent Data Available DPCs FILED NY CA FL IL NJ PA TX 7601 4670 207 283 1271 897 341 747% 2129% % MORE 63% 3572% 2586% 498% Source: The Center for Appropriate Dispute Resolution in Special Education (CADRE) SPECIAL EDUCATION SOLUTIONS © 2020 Special Education Solutions, LLC Page 3 of 14 01/12/2020 Number of Complaints Figure 2 NYC Trend – Complaints Filed SY 2014-15 SY 2015-16 SY 2016-17 SY 2017-18 SY 2018-19 STATEWIDE 5200 5464 6282 7635 10189 NYC 4734 (91%) 5026 (92%) 5779 (92%) 7144 (94%) 9694 (95%) 7887 (97%) ROS 466 (9%) 438 (8%) 503 (8%) 491 (6%) 495 (5%) 269 (3%) 8156 (as of 01/10/20) SPECIAL EDUCATION SOLUTIONS Source: New York State Education Department © 2020 Special Education Solutions, LLC SY 2019-20 Page 4 of 14 01/12/2020 Net Effect Figure 3 Calendared Matters - NYC SCHOOL YEAR AVG. PER DAY 2014-15 55 2015-16 69 2016-17 89 2017-18 106 2018-19 133 2019-20 • NYC hearing office has 13 hearing rooms • A hearing/conference can last a few minutes to a full day • On average, there are more than 100 matters per day on the calendar 99 (as of 01/10/20) Source: New York State Education Department © 2020 Special Education Solutions, LLC Page 5 of 14 01/12/2020 Net Effect Figure 4 Number of Granted Extensions SY 2014-15 SY 2015-16 SY 2016-17 SY 2017-18 SY 2018-19 STATEWIDE 15067 17447 24778 36369 53562 NYC 14111 (94%) 16599 (95%) 23768 (96%) 35157 (97%) 52226 (98%) 24561 (97%) ROS 956 (6%) 848 (5%) 1010 (4%) 1212 (3%) 1335 (2%) 765 (3%) 25326 (as of 01/10/20) SPECIAL EDUCATION SOLUTIONS Source: New York State Education Department © 2020 Special Education Solutions, LLC SY 2019-20 Page 6 of 14 01/12/2020 Net Effect Figure 5 Average Case Length SY 2014-15 SY 2015-16 SY 2016-17 SY 2017-18 SY 2018-19 STATEWIDE 146 155 175 196 220 NYC 149 159 181 202 225 259 ROS 115 114 114 120 139 135 251 (as of 01/10/20) SPECIAL EDUCATION SOLUTIONS Source: New York State Education Department © 2020 Special Education Solutions, LLC SY 2019-20 Page 7 of 14 01/12/2020 Net Effect Figure 6 Open/Late Cases NYC ROS OPEN CASES 10181 211 LATE CASES 6803 25 Source: New York State Education Department (as of 01/10/20) “[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. Sch. Dist. (S.D.N.Y.) © 2020 Special Education Solutions, LLC Page 8 of 14 01/12/2020 Net Effect Figure 7 Amount Paid in Settlements and Judgments (Millions) – NYC Only Percentage of Law Claim Settlements and Judgments Paid FISCAL YEAR AMOUNT PAID % OF LAW CLAIMS PAID OUT 2017 $279.7M 82% 2018 $303.0M 76% Source: Office of the Comptroller of the City of New York Final Federal Appropriations, FY 2020 – New York State $800M © 2020 Special Education Solutions, LLC Page 9 of 14 01/12/2020 It’s fixable … • Though the numbers confirm the magnitude of the problem that confronts the NYC hearing system, it’s fixable • It’s not something that can be done overnight, but doable within a reasonable time • It will require our collective involvement; cooperative purpose, and some heavy lifting • SED is committed to improving NYC’s hearing system’s efficiency, timeliness, and overall operation © 2020 Special Education Solutions, LLC Page 10 of 14 01/12/2020 Multiple Solutions Needed • Eliminate requiring orders for uncontested pendencies • Promote, increase use of, other dispute resolution processes • Eliminate 30-day cap on extending 45-day timeline • Require adequate compensation for IHOs • Establish minimum/maximum number of cases IHOs may accept • Consider alternative options to hearing participation © 2020 Special Education Solutions, LLC Page 11 of 14 01/12/2020 Expand Pool of Qualified IHOs • Currently, 69 IHOs are signed up to serve in NYC but, in the past year, only a few (and often none) are available to accept cases on a per day basis • As a result, as of early January 2020, there are over 1300 complaints (of the 10,181 open cases) awaiting an appointment of an IHO • NYS law is more prescriptive than federal law on who can serve, and consideration should be given to aligning NYS law with federal law • Use of attorneys admitted in other states, as well as non-attorneys, and relaxing the required minimum experience, are options to consider to expand the pool of qualified candidates © 2020 Special Education Solutions, LLC Page 12 of 14 01/12/2020 Use of Non-Attorneys as IHOs • IDEA does not require IHOs to be licensed attorneys • Most states, however, favor attorneys • IHOs must possess knowledge of, and ability to understand, federal and state special education law and legal interpretations of the law by courts • IDEA requires IHOs to be able to conduct hearings and write decisions in accordance with appropriate, standard legal practice • Use of non-attorneys is an option to consider among others © 2020 Special Education Solutions, LLC Page 13 of 14 01/12/2020 Questions Deusdedi Merced, Esq. dmerced@spedsolutions.com www.spedsolutions.com © 2020 Special Education Solutions, LLC Page 14 of 14 01/12/2020