The New York State Department of Education’s Office of State Review (“SRO”), which hears appeals of special education proceedings after an Impartial Hearing Officer (“IHO”) decision, has been out of compliance with federal mandates to issue timely decisions within 30 days, since April of 2012. This delay has impeded the right of many children with disabilities to a free appropriate public education. Some cases in our office, for example, have been pending with the SRO for two years, and we believe that the SRO must come into compliance with federal mandates immediately or at the very least, within one year.

NYSED Requests Compliance Agreement

On Wednesday, July 16, the United States Department of Education (“USDOE”) conducted a public hearing in Manhattan to hear comments from the public on a proposed Compliance Agreement to be entered into by the New York State Education Department (“NYSED”) and the USDOE. Specifically, NYSED has requested that the Department allow NYSED to enter into a Compliance Agreement to resolve its noncompliance within three years. NYSED has stated that it is not able to correct this noncompliance within one year due to the significant and unanticipated increase in the number of appeals of due process hearing decisions under the IDEA. In testimony on July 16th, NYSED also attributed the delay to the quality of Impartial Hearing Officers (“IHOs”) decisions.

NYSED’s Commissioner John B. King formally requested, in an April 9, 2014 letter, that the USDOE consider allowing NYSED to enter into the Compliance Agreement. Specifically, in the letter, NYSED acknowledged that the SRO was not in compliance with IDEA mandates and identified several reasons why the State is unable to come into compliance within one year, such as the number of NYSED identified current and proposed actions to bring NYSED into compliance with the 30-day timeline requirement within three years, such as hiring more staff members.

USDOE Sought Comment on Two Questions

At the public hearing, the USDOE panel asked the public to comment on two questions:

1. Can NYSED come into compliance within one year with the IDEA Part B requirement to issue within 30 days, unless a party requests and is granted a specific extension, a State-level independent decision in an appeal of a due process hearing officer’s decision (i.e., is compliance with this requirement not feasible until a future date beyond one year)

2. Will NYSED, within a period of no more than three years, be able to come into compliance with this IDEA Part B requirement (30 days for a State-level independent decision), and, if so, what provisions should be included in the Compliance Agreement to ensure that compliance is achieved as quickly as possible?

NYSED Must Come into Compliance within One Year

NYSED must come into compliance with the IDEA requirement to issue a decision within 30 days, within one year. All stakeholders who practice in the areas—school districts, parents, attorneys and IHOs– understand the importance of IDEA timelines. In enacting IDEA, Congress recognized that timeliness is central to the IDEA and a failure to meet its procedural deadlines can be tantamount to a denial of FAPE. The SRO should not be excused for non-compliance. The SRO’s delay causes a lack of predictability, trust and accountability of the process for all stakeholders. But most importantly, the delay causes unconscionable and irreparable harm to vulnerable children who have a limited time to receive a free appropriate public education. Due to the delay, many students lose their chance for appropriate placements. As one parent at the public hearing noted, “Justice delayed is justice denied.”

The SRO, which for 2013, has rendered approximately 238 decisions, has the ability to come into compliance with simple structural and practice changes. These changes could include:

• a schedule that sets clear, mandated expectations for the number of days available to review the record, the number of days to draft a decision and the number of days to issue it;
• a directive that dismissals do not require decisions and;
• a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs, as the fact-finders.

If USDOE Allows Compliance Agreement, Must be Strong and Vigilant Federal Oversight

If the USDOE approves a three year time window to allow the SRO come into compliance, it must exercise relentless oversight over NYSED and monitor practice changes. Among other things, the USDOE should include in its compliance agreement, provisions which:

• Ensure that the NYSED implements structural changes and policies to set clear expectations for the number of days taken to review the record, write a decision and issue a decision;
• Direct the SRO to examine its review practices and issue a directive that dismissals do not require decisions and a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs;
  
• Investigate claims of bias in favor of local educational agencies (“LEA’s”) and ensure that SRO decisions are impartial and sufficiently deferential to IHO fact-finding, as SRO practices and bias toward LEAs could be contributing to a greater number of appeals;
• Address student rights lost by the delay and direct NYSED to allow IHOs increased discretion to revise pendency standards so that if any SRO decision takes more than 30 days, the prior IHO decision may become final;
  
• Monitor and examine decisions and practice to ensure reasonable progress, with goals and benchmarks;
• Create an advisory panel of New York stakeholders including LEA representatives, parents, attorneys, advocates, eligible students and other stakeholders, to have input and assist with monitoring.

In short, the SRO delays are inexcusable and have impeded the rights of many children to a free appropriate public education. The USDOE must take immediate and appropriate steps to ensure that the SRO comes into compliance with IDEA mandates with all deliberate speed, and, if it considers a compliance agreement, it must ensure that it protects the rights of New York’s most vulnerable children.

There is still time to give input. The USDOE is accepting comments. Written testimony or public comments may be submitted until July 26, 2014 by email to:  OSEPnysedhearinginfo@ed.gov by mail (postmark by July 26, 2014) to Jocelyn Logan-Friend, United States Department of Education, Office of Special Education Programs, Potomac Plaza, Room 4132, 550 12th Street, S.W., Washington, D.C. 20202.  The USDOE notes that commenters will not receive acknowledgement of receipt of written testimony and your testimony will be part of the public record that may be obtained through the Freedom of Information Act as appropriate.

The Individuals with Disabilities Education Act, (IDEA), statute expressly provides that students with disabilities are to be educated and included with their non-disabled peers to the “maximum extent appropriate.”  This requirement is sometimes referred to as the “least restrictive environment” (LRE) mandate of the Act, and it is one of only two “maximizing” provisions in the entire statute.   With this language, Congress intended to protect students with special needs from being ostracized or isolated from the general population and requires that students with special needs be included in the general education population to the greatest extent possible.

Specifically, the IDEA  provides that States must have in place procedures assuring that, “to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”  See 20 U. S. C. §1412 (5) (B) as implemented by the Department’s regulations at 34 CFR §§300.550-300.556.
Recent Decision Mandates Inclusive Setting for Summer Program

Recently, the Second Circuit Court of Appeals, in T.M. v. Cornwall, 12-4301, held that the Congressional LRE standard applies to extended school year (ESY) services for students who are approved for twelve-month programs and who benefit from the LRE.    T.M., a student with autism was succeeding with support in a general education preschool setting during the school year.    However, for the summer, the district only offered placement in a self-contained special education classroom and offered T.M. related services only as part of the self-contained classroom experience.  T.M.’s parents rejected the summer placement because it was too restrictive and filed an Impartial Hearing.  The Impartial Hearing Officer (IHO) ruled in the parents’ favor and the district appealed.  The State Review Officer (SRO), who tends to rule in favor of school districts, reversed the IHO’s decision and the parents appealed to the federal district court.  The federal district court affirmed the SRO decision.  T.M.’s parents then further appealed to the Second Circuit Court of Appeals and received the relief requested.

Like the drafters of the IDEA, the Second Circuit judges who ruled in T.M.’s favor intended to draft a decision that would help the many children diagnosed with Autism and other disabilities who have been approved for a 12-month program and who obtain a meaningful educational benefit from an inclusive environment.
LRE Mandate Can Have Unintended Effect

However, school districts often use the LRE provision against parents.  For example, recently, a parent filed an impartial hearing against a school district for failure to provide a free and appropriate education to a student with severe social, emotional and psychiatric conditions whose conditions were exacerbated due to the inappropriate program.  His psychiatrist, the district representative and his parent recommended a residential therapeutic placement for him, but the school district would not approve a residential placement arguing that it is not the LRE.  The school district then issued a placement at a non-public state approved therapeutic day program although his doctors and other professionals maintained that he would further regress there and that it was not appropriate.  Such a position by school districts causes unnecessary delay in providing the student with FAPE, burdensome litigation and extensive costs to both parties that could have been avoided.
In my legal practice, I have encountered several similar situations with regard to students who require specific accommodations, a 1:1 paraprofessional, have severe disabilities, or are diagnosed with Autism, but are high functioning.  In these cases, an inclusive environment may not be appropriate because the student will obtain a meaningful educational benefit only if a restriction is provided.  A mainstream or integrated setting does not work for all students with disabilities.  Each student’s needs are unique and must be treated as such.  It is important for school districts, IHOs and legislators to consider that the IDEA limits LRE only to situations when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services can be achieved satisfactorily.  A cookie cutter approach can be more harmful than beneficial when applying the LRE provision of the IDEA to a student’s individualized educational program.
The special education team at Littman Krooks LLP has extensive experience advocating for parents of children with various special needs and helping them to navigate the labyrinth of special education law including cases where school districts may use the LRE against the student.

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