New York asks private school families to waive rights to sue over special education services – The 74

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After thousands of New York students with disabilities were denied critical services earlier this year, Department of Education officials are now offering them a chance to restore those services — with a big catch.

A few weeks before the start of the school year, the city education department with little warning began to strictly adhere to the deadline of June 1 for students with disabilities who attend a private school and have requested city-funded special education services to which they are entitled under state law. The deadline had previously been lightly enforced, and its newfound enforcement was part of a larger crackdown aimed at curbing alleged fraud and rising costs.

While approximately 17,000 families applied on time, another 3,000 families missed the deadline, losing services such as tutoring or speech and occupational therapy.

Education Department officials promised to begin resuming services for latecomers as soon as they arrange services for families who made the deadline.

This week, officials took a step toward fulfilling that promise by sending letters to thousands of families who missed the deadline, offering vouchers to cover the cost of special education providers.

But the offers come with a big asterisk.

In order to receive the vouchers, families must sign a waiver of the right to file a lawsuit against the city’s Department of Education, according to a letter obtained by Chalkbeat. Families have two weeks to decide whether to sign it.

The proposal is already drawing sharp criticism from some lawmakers.

“After failing to provide these services, the (city’s) plan to deny parents and guardians much-needed educational support for their children in exchange for legal immunity is nothing short of outrageous,” said Brooklyn City Councilwoman Rita Joseph . and the head of the commission on education in a a statement posted on social media platform X.

Officials told Chalkbeat that asking the family to waive their rights to sue the Department of Education is the only way to restore services without opening the city up to “hundreds of millions of dollars in liability.”

By offering services to late filers, the city forfeits its right to use the missed deadline as a legal defense, creating a massive legal shutdown, officials say. The Department of Education is reluctant to take that risk without a waiver because the city already spends about $500 million a year on special education for private school students, officials say.

For families looking to restore services, the new proposal presents a dilemma.

On the one hand, accepting the proposal could be the fastest way to restart much-needed services, according to special education lawyers who spoke to Chalkbeat.

But that means losing the ability to force the city to retroactively cover the cost of services they missed this school year, known as compensatory services. It also means families can’t force the city to increase the value of the voucher if, as is often the case, families can’t find a provider willing to accept the standard rate offered by the city.

“It’s like putting parents between a rock and a hard place,” said Jesse Cutler, a partner at Regina Skyer and Associates, a firm that represents families in special education cases. “I think it’s a case-by-case decision — you have to consider all the circumstances.”

Here’s what several lawyers said families should consider when weighing the proposal from the Department of Education:

How quickly do you want to restart services?

For some families, the most important question may be how quickly they can resume services after months of interruption, said Rebecca Shore, director of litigation at Advocates for Children, a group that represents families pro bono in special education disputes.

“If parents have already found a provider and the provider accepts the voucher, that may certainly be a course they should consider,” Shore said. “That would probably be the fastest course.”

Otherwise, families may need to file a legal complaint, called a due process complaint, before an impartial hearing officer, a process that can take time to resolve.

“You’re looking at a few months, if not more,” Cutler said.

In addition, a favorable decision from an impartial hearing officer is not guaranteed, and the city would likely challenge the family’s lawsuit, saying they missed a deadline set by state law.

Shore said the family still “may have a claim” against the city even if they missed the deadline. But she did not want to generalize the family’s chances of victory, since the outcome of a particular case depends heavily on specific facts.

Education Department officials argued that families who missed the deadline “have essentially no legal recourse” and therefore have little to lose by accepting the city’s offer.

Are you looking for “compensation” services?

One specific thing families would give up by accepting the Department of Education’s offer and signing the waiver is the right to push the city to pay for compensatory services this school year.

Generally, families can file lawsuits to try to force the city’s education department to pay for services their child was entitled to but never received. By signing the waiver, families lose this opportunity.

“These students are eligible for services (in) September, October, November, December,” Shore said. “Waivering your right to makeup services for that entire period is, again, a parental consideration.”

Can you find a supplier that accepts a Department for Education voucher?

A final important variable is whether families are willing to give up their right to try to force the Department of Education to pay a higher rate than the voucher offers.

A city voucher for a special education tutor costs $86 an hour, but many providers charge more, Shore said. To cover the difference, families often have to make a legal complaint to the Department of Education, demanding an “increased rate”.

City officials say the inflated rate system is rife with fraud, and say many providers are overcharging or charging for services they don’t provide.

However, one of the conditions of accepting the Department of Education’s new voucher proposal is the waiver of the right to request an increased rate. This can put families in a difficult position, say human rights defenders.

For families who don’t already have a provider that agrees to the Department of Education’s rate, finding one in the middle of the school year would be a “Herculean feat,” said M’Ral Broody-Stewart, an attorney at Staten Island Legal. Services.

“It’s great to have a provider in the family that can accept the Department of Education rate,” Cutler said. “But there is a significant and significant shortage of providers across the city.”

Department of Education officials said families who can’t find a provider can turn to local special education boards for help. The Education Department also employs 19 itinerant special education teachers who work with private school families. But it’s a drop in the bucket for the roughly 20,000 students who are eligible for services.

Things are further complicated by the fact that the legal process for obtaining a higher rate is constantly changing. In years past, families have relied on lawsuits to force the city to pay more than the standard voucher rate. This year, the state Board of Regents passed a resolution authorizing the city’s Department of Education to create its own system to review those requests. The lawsuit temporarily put the decision on hold, but it’s still unclear what the process will look like in the long term.

Department of Education officials said they plan to post frequently asked questions on the city’s website to help parents decipher the waiver.

But Broody-Stewart advised parents to consult a lawyer before making a decision.

“The average person may not fully understand what the legal term ‘release, waiver and waiver’ means,” she wrote in an email. “However, they will waive their rights by signing this form.”

Chalkbeat is a nonprofit news site covering educational change in public schools.

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