Crisis Looming: Report Finds Problems With NYC Impartial Hearing Office

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A state-commissioned report recently found significant process failures in New York City’s special education hearing system.  Although not a formal audit, the analysis, conducted by Deusdedi Merced of Special Education Solutions, LLC, was meant to identify practices that were either inconsistent with “standard and best legal practices” or impediments to the timeliness and efficiency of the system.  The reviewer’s preliminary findings suggest that a “crisis” in New York City is imminent, potentially threatening students’ access to due process.

The reviewer’s discussion is framed around the considerable and expanding number of complaints filed in New York City, the focus of Chalkbeat’s recent article covering the external review; the overwhelming number of due process filings in New York occur in New York City alone.  In fact, they have comprised over 90% of yearly complaints filed statewide since the 2014-2015 school year.  Moreover, in the most recent available data, i.e., the 2016-2017 school year, the state’s complaints totaled the combined numbers of California, New Jersey, Illinois, Pennsylvania, Texas, and Florida, the six states that are most comparable to New York in terms of size, demographics, and special education delivery issues.  Most alarmingly, though, between the 2014-2015 and 2017-2018 school years, New York City has experienced a 51% increase in the number of complaints filed, with the average number of matters seen per day growing from 55 to 122 and the average case length similarly growing from 149 days to 225.  In stark contrast, the number of hearing officers and hearing rooms for these cases have stayed stagnant throughout this period.  It is no surprise why a review of the hearing system was announced on January 24, 2018 by Assistant Commissioner Christopher Suriano (on file with the New York State Education Department).

The recently released report aligns with New York State Education Department (SED) and Assistant Commissioner Suriano’s review plan, focusing on four key areas that would help better understand the functioning of the hearing system (i.e., the New York City Impartial hearing Office, or NYCIHO).  These areas were: (1) the assignment of hearings to Impartial Hearing Officers (IHOs); (2) the payment structure for IHOs; (3) the specific assistance provided to IHOs by NYCIHO; and (4) the observation, availability, and suitability of hearing room spaces.  In short, the reviewer concludes that certain extant practices (see the original report for details) may ultimately incentivize delays and reductions in the quality of legal proceedings.

Among others, recommendations include (1) initiating a plan to revise the IHO appointment process to ensure the availability of hearing officers prior to their appointments, rather than after, and to subsequently limit recusals to personal or professional interests that would conflict with their objectivity; (2) adopting a policy that compensates IHOs for all prehearing, hearing, and post-hearing activities that are consistent with appropriate, standard legal and best practices; and (3) expanding the number of hearing rooms and private spaces for parents and their attorneys, improving their ventilation and temperature control, sound proofing, and access to amenities like printers.

Quoting President Kennedy’s warning about the costliness of long-term inaction, Merced finishes with “[t]o this reviewer, there is no doubt: the time for decisive action is now,” for, according to him, SED will be measured not by what it learns from the report, but by what actions it takes moving forward.  We at The Law Office of Steven Alizio are hopeful that administrators will heed the call.  In the meantime, we will continue to fight to ensure our clients’ right to due process is respected.