This is a longer update—but the issue is critical for all New York City families whose children have an IEP.
The short version:
As reported today by the New York Daily News (NYC lawyers push back on state proposal to lower qualifications for special education judges amid shortage), “The Emergency Coalition of Special Education Attorneys for a Fair Due Process System” (ECSEA), an ad hoc group of parent attorneys that we are a part of, has sent a letter to the New York Board of Regents and New York State Education Department (NYSED) to strenuously object to a proposal that would allow non-lawyers to serve as Impartial Hearing Officers (IHOs). IHOs are the judges who hear all special education due process cases. Keep your eye on this issue—we will need everyone’s help to stop this from happening.
The long version:
In November, we alerted you to a crisis at the Impartial Hearing Office when, for the first time, no impartial hearing officers (IHOs) were being assigned to any cases filed in New York City due to a shortage in available IHOs. It wasn’t until late January that hearing officers began to be assigned again, but assignment remains inconsistent to date, and the unlawful waiting list for New York City families whose due process cases do not have a judge assigned continues to grow.
The failure to provide timely access to statutorily required due process under the Individuals with Disabilities Education Act (IDEA) is a gross violation of the civil rights of disabled children. Most egregiously, this catastrophe was slow-moving, long-seen, and entirely preventable.
In February 2019, the New York State Education Department undertook an audit of the Impartial Hearing Office (“External Review of The New York City Impartial Hearing Office”). This report found the IHO to be in “rapid, continuing decline” and made specific recommendations to address the lack of appropriate hearing rooms, pay issues for hearing officers, and changes that could be made to improve the efficiency of extensions, pendency requests, and the processing of other decisions.
Skyer Law also made numerous attempts to raise this issue with stakeholders, including testifying at a February 2019 NYC Council Education Committee oversight hearing. At that hearing, partner Jesse Cole Cutler warned: “This is a catastrophe in slow motion. If parents cannot access due process for students with disabilities, the entire system will collapse.” Mr. Cutler highlighted the need to address IHO compensation. In November 2019, we wrote to Governor Cuomo and state legislative leaders, NYSED Acting Commissioner Tahoe, and members of the NYC Council to ask our government leaders to work together to address IHO compensation and other long-standing issues in order to address the flight of IHOs from the assignment list. We received a response from NYSED Acting Commissioner Tahoe on December 10, 2019 that promised action.
Unfortunately, to date, New York State and New York City have instead acted in ways to exacerbate an already fraught situation:
On January 7, 2020, NYSED submitted a memo that asked the New York Board of Regents to consider appointing non-lawyers as Impartial Hearing Officers.
On February 10, 2020, NYC updated their Impartial Hearing Officer Compensation Policy—but the new rules have not been well received. Among other things, the policy decreased the rate of compensation for hearings with fewer than 100 pages in the transcript.
On February 11, NYSED Acting Commissioner Tahoe testified at the NYS Joint Legislative Budget Hearing on Education and, according to reporters covering the event, announced to legislators that she plans to make a formal proposal to the Regents in March to allow non-lawyers to be appointed as impartial hearing officers.
These troubling actions have already made things worse. At the Impartial Hearing Office, IHOs are furious about the inadequate changes to their compensation and are understandably insulted that New York State would rather hire non-professionals than to treat them fairly. One IHO informed us yesterday that he would be working through his current caseload and leaving the rotation for good.
Across the nation, very few states allow non-lawyers to be hearing officers. Those that do (Arizona, Oklahoma, Indiana, and South Carolina) are not known for their commitment to special education and the civil rights of children with disabilities.
In the past, New York allowed non-lawyers to be IHOs, but a broad consensus of policymakers and experts determined that this model was a failure. Special Education law is complicated and IHOs must analyze a massive body of case law. The only thing that’s changed since New York decided against using non-lawyers, is the government’s desperation for a quick fix to what it sees as an inconvenient political problem.
To put it bluntly: This isn’t a traffic court magistrate looking at a speeding ticket. The IDEA is a civil rights entitlement statute, and it is fundamentally disrespectful to disabled children to play fast and loose with their due process rights and to deny them anything less than the standards set out by the IDEA. These hearings establish a record that may need to be relied upon by a federal court, the Second Circuit Court of Appeals, and, occasionally, the U.S. Supreme Court.
If NYSED follows through with formally proposing this ill-conceived change, we will need the parents of special education students to be engaged and active to make their voices heard to the Regents in opposition. Please stay tuned.
