New York City school officials want families seeking such services to waive their right to sue the Education Department in exchange for receiving them.

Mr. Powers said that in his district, which covers part of Midtown and the city’s East Side, parents had told him their children were beginning to lag behind because they were not receiving help after the missed deadline.

Gina M. DeCrescenzo, a New York lawyer who specializes in special education issues who reviewed the waiver, said that it was “highly problematic” for several reasons, including that it did not inform parents which services they were agreeing to receive, and because it compelled them to forgo their right to complain about how the services would be delivered in the future.

Families with special education plans sometimes have to sue the city to have those plans enforced. Ms. DeCrescenzo said that parents who signed the waiver would be barred from doing so for the rest of the school year.

Ms. Brownstein, the Education Department spokeswoman, said the services parents agreed to receiving by signing waivers would be specific to their children’s special education plans, known as Individualized Education Services Programs, or I.E.S.P.s. The waivers are not tailored to each family, so they do not list the details of those plans, she said.

Susan Horowitz, an education lawyer at the Legal Aid Society, said such waivers were rare in a school context, even amid an increase in arbitration clauses being included in payment agreements and contracts for other services.

“This is the first time I’ve seen this outside of the context of settling litigation,” she said.

The State Department of Education found last month that by not enforcing the June 1 deadline in the past, the city department had relinquished its right to challenge parents’ claims for enhanced-rate services.

Practically speaking, the finding meant that if a student needed to seek help outside a school setting, such as by meeting with a speech therapist for $150 an hour, the department had to pay that amount, instead of the $90 it would typically spend to provide the service inside a school.

City schools officials sent out the waivers in response to the state’s decision, in an effort to avoid having to cover the higher costs. Ms. Brownstein said that the agency was “going beyond our legal requirements” by offering the waivers.

“Over the past decade, we’ve seen an exponential increase in filing for special education services by families attending private or parochial schools, and not seeking a public school education,” Ms. Brownstein said in a statement. “We will always engage families, including those who didn’t meet the deadline, and seek to serve them as soon and as best as we can.”

Mr. Powers said that many parents in his district chose to send their children to religious schools because of their beliefs. Those parents, he said, had a “reasonable expectation” that their children would get the services they required.

“This has always been something that parents had an expectation to receive for their children, and now this year, it’s changing,” Mr. Powers said. “A lot of families we’re talking to cannot afford these very expensive services.”

Kate McHugh, the principal of the Epiphany School, a Catholic school in the Gramercy neighborhood, said that in past years, parents had been informed in a letter that they had to apply for services, but that no deadline had been enforced. If they failed to apply on time, she said, they were reminded.

A Department of Education guide provided to parents seeking special education services does not mention a June 1 deadline, or any deadline at all. Ms. Brownstein said the guide would be updated on Friday.

Ms. McHugh said some parents had been confused to receive the waiver on Thursday without advance warning, and others had expressed reservations about signing. Schools had not been told about the new plan, she said.

“I think it’s good that there seems to be a path forward for families,” Ms. McHugh said, but she added that she was troubled by how the process was handled. “It’s definitely different than things have been done in the past, and the communication to nonpublic school leaders has been really lacking and inconsistent.”

Councilwoman Rita Joseph, who leads the City Council’s Education Committee, said that she was calling on Mayor Eric Adams, who oversees the city’s public school system, to work with the Education Department to come up with a plan to provide special education services to all students.

“Every child in our city deserves equitable access to education without caveats,” Ms. Joseph, a Democrat, said in a statement.

Gabrielle Gayagoy Gonzalez, who lives on the Upper East Side, said it had taken months to arrange services for her 5-year-old son, who is autistic. Ms. Gonzalez missed the June 1 deadline, but she was eventually able to get the services he needed and was not sent a waiver. But she was concerned for parents who were not as lucky.

“Even though we had our I.E.S.P. in place, it doesn’t guarantee that the services will be assigned to you in a timely manner, and then now you’ve given up your rights to sue,” Ms. Gonzalez said. “I feel like they’re taking advantage of people.”

Eliza Shapiro contributed reporting.

New York preschoolers are often not receiving special education services

By Capitol Bureau
Albany Times Union

ALBANY — A state comptroller’s audit found that preschool students across New York are not always receiving necessary special education services or getting that help late.

The audit released Thursday also revealed the State Education Department has been hindered in its ability to oversee those programs because the agency was not aware of how many students were enrolled in preschool special education programs, what services they are provided or the number of school districts that have waiting lists.

“Providing timely, quality early education services to preschool children with special needs can make a world of difference in their development, and delays can have long term consequences for their academic futures,” state Comptroller Thomas DiNapoli said in a statement. “Too many children are not getting the services and therapies they are entitled to within required timeframes, and some are not getting the services at all.”

DiNapoli said the Education Department and school districts need to do a better job providing services for those students and that the state agency had agreed with the findings and has initiated steps to improve those services for students.

According to the comptroller’s office, children referred for special education services undergo a parent-approved evaluation and then have an education plan developed for their individual needs. Those services are supposed to begin within 60 days of parental consent and the students are entitled to them under the federal Individuals with Disabilities Education Act.

But the audit revealed many children are not getting the specialized services or others are not receiving them within that 60-day period. More than 80 percent of the 550 school districts that responded to an audit survey said they have waiting lists for those services. New York City schools were not included. Auditors visited an additional 40 school districts and found 21 of those collectively had waiting lists of more than 300 students.

The comptroller’s office said the Education Department acknowledged that the waiting lists violate federal requirements that students with disabilities receive the services to which they are entitled. The Education Department does not have data to pinpoint the programming challenges, including provider shortages, that could provide more information on the difficulties districts are facing in providing the services.

The Education Department apparently does not monitor how districts determine who goes on a waiting list and whether the systems are fair, which the comptroller’s office said is contributing to the breakdown that prevents the state from knowing how many students are not getting all or some services.

The audit includes seven recommendations, including having the Education Department develop a strategy to address the shortage of preschool special education services and to work with district to identify ways to improve the system. It also recommends the state improve monitoring of districts and create data controls to ensure the records are complete and accurate.

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The President of the UFT, Michael Mulgrew, is also telling the public about this non-compliance:

UFT Asks NY State Education Department To Hold NYC Department of Education Accountable For Failure To Provide Mandated Special Education Services

In 2015, the US Department of Justice  wrote  a letter to the former NYC DOE General Counsel Courtenaye Jackson-Chase, telling that she must get the DOE into compliance on making sure   special education students could enter and leave school buildings:

Justice Dept to Courtenaye Jackson-Chase 2015

Until today, I know that kids with special needs are not getting their services.

Then there is news like this, too:

Dad furious after shocking video shows staffer drag son by genitals at NYC-funded autism center

Susan Edelman, NY POST, December 7, 2024