Advocates say city is agreeing to pay special ed costs less often

Advocates and lawyers representing students with disabilities say the city has only intensified its recent battle against parents who want their children’s private school tuition reimbursed.

The adversarial showdown, which stems in large part from the city’s efforts to cut special education costs, means that children with special needs are taking longer to receive services that their parents believe they need.

“They’re basically just fighting everything a lot more,” said Kim Madden, director of legal services at Advocates for Children of New York, about the city’s lawyers. AFC represents low-income families in many cases against the Department of Education.

As the new school year is set to begin, Madden said she expects the help line that her organization runs to start ringing off the hook. The complaints often come from parents who want schools to provide the services mandated by their child’s special education plan, such as occupational and speech therapy. Other requests are for transportation for medically fragile students and extra tutoring for learning disabilities.

But it’s the expensive reimbursement requests to cover private school tuition, which account for many of the cases, that have the city on the defensive. The city is projected to spend $256 million in 2014, or about 9 percent more than this year, on private school tuition for students whose parents successfully petition for reimbursements. All together, the city’s bill for nonpublic school payments, excluding charter school spending, is on pace to increase 35 percent since 2010.

The education department bulked up its legal team in 2007 after private consultants advised the Department of Education that it could save as much as $25 million a year by challenging parents who request “impartial hearings” because they believe the district is not meeting their child’s needs. Since 2010, city parents have requested 17,000 impartial hearings, which are arbitrated by a neutral officer, according to the department.

Critics say the entire process — which includes the initial complaint, a resolution period with several meetings, and a final hearing — has gotten longer and more costly for parents to litigate than ever.

“They’ve made a game of denying services to save money,” teachers union President Michael Mulgrew said last week at an education forum.

Mulgrew claimed that there had been an “explosion” of the impartial hearings, which take place after the city and parents are unable to agree on the services a student with special needs should receive.

But department officials scoffed at Mulgrew’s characterization, releasing numbers that showed a slight increase in hearings between 2011 and 2013 and a steady decrease in settlements, from 2,900 in 2011 to just 2,300 last year. The number of cases in both categories could increase as more cases move through the hearing process, officials cautioned.

A spokeswoman for the city said department lawyers would still prefer to reach a resolution before getting into the more contentious stages of the process, which includes cross-examination of witnesses in stuffy conference rooms at the city’s education offices at 131 Livingston St. in Brooklyn. She also said a state proposal to require more pre-hearing conferences has also encouraged both sides to hash out their differences before getting to a hearing.

“Over the past several years we have undertaken a number of initiatives to make this possible, including expanding the number of related service providers available to parents and making the impartial hearing process more responsive to the needs of students and parents,” said the spokeswoman, Erin Hughes.

The city’s goal was to reduce spending on private schools by pressing families to prove that their children could not be accommodated in public schools, a move spurred by the fact that some wealthy families were putting their children in private schools without the city’s consent, then petitioning for reimbursement after the fact.

But advocates say the more combative process has created a scenario in which only parents with means, resources, and knowledge of the system are most prepared to handle a gauntlet of steps.

“They are going to emotionally, physically and financially wear you out,” said Suzanne Peters, whose son has cerebral palsy. She says she fronted hundreds of thousands of dollars and spent months of her time over several years battling aggressive city lawyers over her son’s placement. In 2011, she eventually won a seat at the The Smith School, whose $56,000 tuition is picked up almost entirely by the city.

Schools that used to accept students with disabilities with the promise of city reimbursements in the future are less willing to accept the students now that the promise of reimbursement is more tenuous and distant, according to Madden, the lawyer for Advocates for Children. The head of a private school that enrolls many students whose tuition is subsidized by the city told DNAInfo earlier this summer that he could not pay his workers because of payment delays from the city.

Madden said her organization takes on cases that were often glaring in how obvious it was that the students needed additional services. She said that while the city used to settle with AFC regularly, members of her legal team now more often find themselves in tense confrontations with city lawyers.

“They grill the parents,” Madden said.

City lawyers have also begun to appeal cases they lose to a state review officer, who has seen a backlog in decisions pile up. This year, there were 239 appeal decisions that needed to be made, compared with 130 in 2010.

“It’s getting worse and worse,” said Lawrence Weinberg, a lawyer who has filed a federal lawsuit against both the city and the state for their role in creating a backlog of cases. He said he planned to bring a class action lawsuit next month that would affect all students whose cases have languished for months in the backlog.

“They’re appealing just to delay and to squeeze parents,” said Weinberg.

One reason for the city to appeal to the state is that it has a better chance of getting decisions overturned than by the hearing officers who arbitrate the city-level cases. The state sides with the city more than 80 percent of the time in appeals.

“There’s no court in the land that overturns appeals decisions 80 percent of the time,” Peters said.