Parents Hopeful New Special Ed Rules Will End Yearly ‘Torture’


For Hillel Adelman, the sweeping changes Mayor Bill de Blasio announced last week to New York City’s special education reimbursement means he won’t have to hire a lawyer every year to convince the city that the public school near his home is still not appropriate for his 8-year-old daughter with learning disabilities.

“I think it’s great. It’s a big step forward, and it makes a lot of sense,” said Adelman, a manager at a medical supply company who lives on Far Rockaway, Queens, with his wife and five children.

Adelman is one of approximately 5,000 parents each year who find that the city’s special education placement doesn’t meet their child’s needs and ask the city to pay for a private school instead. These parents, whose children make up just under 0.5 percent of the city’s 1.1 million public school students, say that the application process is unnecessarily time-consuming, and has become increasingly adversarial as the city began challenging and increasing number of requests in recent years.

So far Adelman’s annual reapplication “cat-and-mouse game” has gone smoothly — his dealings with school officials have been pleasant, and the city has agreed each year since his child was in kindergarten to pay for his attorney fees and about 75 percent of the tuition. But even in cases like his, he and other parents say that going through the application process every year single year is “a waste of time and resources” for everyone involved.

And for many parents, the yearly battle is “excruciating.”

Roughly 15 percent — or 170,000 — of the city’s public school students are approved for special education services each year. Most get their services at a public school.

Of the 5,000 who apply for private school placements, the Department of Education (DOE) typically approves half off the bat, according to the agency. The rest go to a hearing in front of an impartial moderator, who usually — about 75 percent of the time — sides with the parents.

One of the biggest changes the mayor announced is that the city will end its practice of routinely appealing when the moderator sides with the parents, which he said caused “needless bureaucratic delays and forced [parents] to pay thousands and thousands of dollars they just didn’t have … [and then often wait] months and months for reimbursement checks.”

Besides ending the bulk of the appeals, the changes, which take effect this fall, require city and DOE officials to decide on tuition reimbursement applications within 15 days (60 days is the current limit); reduce the frequency with which parents have to reapply from every year to every three years and pay private school tuition while a case is being litigated.

The changes, announced June 24, came out of a deal between de Blasio and New York Assembly Speaker Sheldon Silver after it became clear that a similar bill in Albany had enough votes to pass.

The Orthodox Union and Agudath Israel both lobbied heavily for the legislation, while several statewide groups opposed it, including the New York State School Boards Association and the League of Women Voters. The latter two argued that the provision that the DOE pay the tuition during litigation was problematic because the legislation didn’t include a mechanism to ensure that the district could get the tuition back from parents if it won the case.

Jay Worona, general counsel for the New York State School Boards Association, said the group’s opposition wasn’t just about money. He said requiring the district to pay tuition during litigation might also lead to children staying in inappropriate schools for a longer time.

“We looked at this not from the perspective of school districts wanting to save money. … Our concern was that we wanted to make sure the child has an appropriate placement,” he said.

But the OU’s Jeff Leb, who led the push for the legislation in Albany, said the DOE would only be fronting tuition in a “minimal amount of cases,” since most will now be decided within 15 days and not appealed. And when appeals do happen, he added, the new rules should ensure that they are "re-litigated in a timely and expeditious manner, thereby resulting in a minimal financial outlay by the city.”

While the OU and Agudath Israel both praised the deal, parents and professionals in the field are more skeptical, saying that the new rules sound great, but will be hard to implement in such a large system.

“I think the changes are critical and desperately needed, and if they are implemented as promised they will remove a huge burden off of families and tremendously benefit children with special needs,” said one parent who calls her annual battle with the DOE “torture.”

“My experience has been excruciating — very, very painful. It’s an enormous challenge caring for and advocating for a child with special needs and I definitely feel like the Department of Education has made this challenge much, much greater,” said the woman, who requested we use her Hebrew name, Golda, fearing that speaking publicly would affect her daughter’s case.

Golda sent her daughter, who has autism, to public school for several years, battling each year to get the DOE to provide an afterschool therapist to provide ABA (applied behavior analysis), a common therapy for children with autism.

After “really trying” to make public school work for several years (believing that the private school approval process would be even more difficult), three years ago Golda moved her daughter to a private school that provided ABA and other services her daughter needed. After making the switch, her daughter’s compulsive behaviors, such as hitting herself, improved, she had fewer tantrums and she began to learn to read.

But to get the DOE to pay the tuition, every year, Golda would have to repeat the same process: the DOE would offer her daughter a spot in a public school, she would have to visit the school to evaluate it, spend thousands to hire an advocate and months gathering evidence and witnesses to convince the DOE that the public school placement still wasn’t appropriate.

Golda said she found these battles “devastating” and sometimes “cruel” with school officials sometimes even launching personal attacks: At a hearing back when she was battling to get afterschool ABA services, for example, an official criticized her parenting skills, using as one example that she didn't send the box of tissues the school had asked for.

“It’s difficult enough to have to go through this extremely expensive and time-consuming litigation every single year when you are trying to prove the merits of your child’s case,” she added via email. “But when the DOE uses underhanded tactics in impartial hearings like attacking you as a parent with baseless and ludicrous allegations, it makes the process that much more painful.”

Jeff Lichtman, international director of the OU's Yachad, the National Jewish Council for Disabilities, was also only cautiously optimistic the deal would change things on the ground.

“If and when this really is implemented, it can go a long way,” said Lichtman, who heads Yachad’s three schools for students with disabilities.

He has testified in nearly 200 DOE cases and says often it’s clear from the get-go that the public school placement is inappropriate.

“We’ll be talking about a child who is mobility impaired and the team will make a recommendation for a program that is on the second floor in a building without an elevator. It’s literally as absurd as that,” he said.

Lichtman, who worked for the DOE as a school psychologist for three years early in his career, pointed out that the rules that are already on the books aren't always followed, such as the current requirement to make a decision on private school placement requests within 60 days or a federal requirement to give new parents a written guide on how the special education system works.

“The Department of Education is just too big. To say it’s a huge bureaucracy would be a compliment — one hand literally doesn’t know what the other hand is doing,” he said.

“It’s very nice that Mayor De Blasio said we’re going to do this,” he added. “But who is making sure the DOE is going to implement this?”

But, if nothing else, Jewish groups said, the mayor’s announcement shows a true understanding of what parents have been going through and provides a clear statement that things need to change.

“It is refreshing to hear Mayor de Blasio declare ‘we give our word in front of all of you … we want to clean our own house and will prove it through our actions,’” said Leah Steinberg, director of Agudath Israel’s special education division in a written statement. “This demonstrates a new level of empathy and understanding …”

But, bringing in a hint of the I’ll-believe-it-when-I-see-it attitude shown above, she added, “… and we look forward to September, when we will see this new policy in action.”