The NYC Department of Education Is Not Implementing Orders of Impartial Hearing Officers

pictured: 100 Church Street, address of the NYC Law Department (“Corporation Counsel”)

In New York City, parents and/or guardians of children with Individualized Education Plans (IEPs) have the right to request an Impartial Hearing to obtain funding for the necessary resources to support their child which the public school system could not, or would not give. As a non-lawyer parent advocate, I have been doing Impartial Hearings since 1998. These Hearings are not heard before a judge, but an Arbitrator, who may or may not be an attorney. The parents/guardians who request the Hearing may do the Hearing themselves, hire a non-attorney advocate or an Attorney, depending on the resources the parents/guardians have.  I have an excellent success rate at these Hearings.

No parent/guardian should think that the outcome will be what they need only if an Attorney is involved. This is, simply not true. In 1997 I hired an Attorney to do an Impartial Hearing for one of my children, and she botched the case. I kept thinking that I could do the presentation of evidence and the summation myself, and proceeded to set up my advocacy for parents, including participation at IEP review meetings (both annual and tri-annual). Along with my success at winning private school tuition for parents/guardians, I learned a lot about how New York City lies about kids with IEPS and denies services. I know that there are very good people mixed in with the bad at the NYC Department Of Education (“NYC DOE”), but often, these good people cannot authorize the right moves and are crushed by bureaucratic nonsense and, sadly, maliciousness and retaliation. Yep, retaliation against the parent for blowing the whistle on a lack of proper support and/or personnel by the school. This is very hard to swallow if and when you first see it, but the most important thing any advocate must do is line up the facts and keep focused on the goal – getting the student what he or she needs to succeed.

Indeed, even after a parent wins the amount to pay a private school, and gets the required data to the NYC DOE offices to release the ordered payment, the NYC DOE stalls or doesn’t pay. In a case that I won in

L.V. v. NYC Department of Education

In the L.V. case, parents of children with disabilities claimed that they had received favorable orders in impartial hearings, but the New York City Department of Education (DOE) was not implementing the orders. The parents also claimed that the DOE did not have a system of tracking and monitoring the implementation of the orders. Milbank Tweed Hadley & McCloy LLP and AFC are co-counsel.

In December 2007, AFC and Milbank, on behalf of Lead Plaintiffs and the Class, entered into a settlement agreement with the DOE that provides injunctive and compensatory relief to class members. The Settlement was approved by the Honorable Richard J. Holwell at the Settlement Fairness Hearing held on April 10, 2008.

Under the settlement, the DOE is required to implement all impartial hearing orders within the time frame stated in the order or 35 calendar days of the date of the order if no time is specified. Orders that require immediate action must be implemented within 7 business days. An independent auditor reviews the DOE’s implementation of each order and if the auditor finds that the DOE did not timely implement any part of the order, the DOE must notify the parent by letter of its failure to timely implement the order. That notice can be used as evidence during any proceeding to enforce the order.

Parents who have questions about the settlement or concerns about the DOE not implementing an impartial hearing order can call Advocates for Children at (212) 947-9779, ext. 577. Parents who need assistance from the DOE to implement an order should call the DOE’s Impartial Hearing Order Implementation Unit at (718) 935-3213.

Associated Documents:

L.V. v. Department of Education Complaint [PDF], December 12, 2003

L.V. v. Department of Education First Amended Complaint [PDF], January 13, 2004

L.V. v. Department of Education Second Amended Complaint [PDF], April 15, 2004

Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Class Certification [PDF], February 4, 2004

Plaintiffs’ Memorandum in Support of Plaintiffs’ Renewed Motion for Class Certification [PDF], October 22, 2004

Class Certification Decision [PDF], September 15, 2005

Stipulation of Settlement [PDF], December 11, 2007

Order Preliminarily Approving the Settlement [PDF], December 27, 2007

Final Approval Order [PDF], April 10, 2008

Independent Auditor’s First Quarterly Report [PDF], January 9, 2009

Independent Auditor’s Second Quarterly Report [PDF], June 11, 2009

Independent Auditor’s First Benchmark Report [PDF], June 11, 2009

Independent Auditor’s First Quarterly Report After the DOE’s Corrective Action Plan [PDF], April 9, 2010

Independent Auditor’s Second Quarterly Report After the DOE’s Corrective Action Plan [PDF], August 13, 2010

Independent Auditor’s Third Quarterly Report After the DOE’s Corrective Action Plan [PDF], December 13, 2010

Independent Auditor’s Fourth Quarterly Report After the DOE’s Corrective Action Plan [PDF], March 9, 2011

Motion for an Independent Special Master [PDF], September 3, 2019

Memorandum of Law in support of a Declaratory Judgment [PDF], October 29, 2020

Motion Granted for an Independent Special Master [PDF], January 28, 2021

Court’s Memorandum and Order [PDF], February 18, 2021

Judgement for Declaratory Relief [PDF], March 2, 2021

Scope of Authority for the Special Master [PDF], May 14, 2021

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