Eliyanna Kaiser and her son have been through five hearing officer assignments since filing a complaint in July. Photo: Ben Fractenberg/THE CITY
By Alex Zimmerman and Yoav Gonen
Thousands of unresolved special education complaints have been piled onto a small group of hearing officers charged with addressing them, adding delays to an already overwhelmed system.
Fewer officers have been willing to take cases as the number of complaints has skyrocketed. As a result, over half of the nearly 10,000 unresolved special education complaint cases fell to just a dozen hearing officers as of Oct. 22, according to state records obtained by Chalkbeat and THE CITY.
At one extreme: Hearing officer Edgar De Leon was assigned so many new complaints that he wound up with 1,713 open cases on his docket.
“Somebody has to do the work,” said De Leon, a former NYPD sergeant turned defense attorney who became a hearing officer in 2004 and gets caseload assistance from his staff. “It wasn’t like I said, ‘Give me more cases.’ People just started going out of rotation and cases kept coming to us.”
City education department officials confirmed that for long stretches, De Leon was the only one on a rotating list of 69 state-authorized hearing officers who were accepting new cases.
‘It Broke My Back’
The statistics underscore the extent to which the city’s special education complaint system has reached a breaking point.
As the number of complaints have doubled over the last five years, reaching nearly 10,000 cases for the first time last year, the number of hearing officers willing to adjudicate them has fallen. There are currently five hearing officers taking on new cases, city officials said.
It means that families who think their children aren’t receiving mandated services such as physical therapy or counseling, believe their child is in the wrong academic setting, or are seeking private school tuition, often face delays getting their cases heard.
By law, the process is supposed to take no longer than 75 days, though it stretched to 225 days on average last school year, according to a state report released in February.
John Farago, a hearing officer who had 574 unresolved cases in October, said he works 14-hour days poring over documents and running hearings.
The workload has become so demanding that his wife now helps him full-time with administrative tasks, such as managing calendars and billing. By themselves, Farago and De Leon were responsible for nearly a quarter of all open cases as of late October, records show.
“I took every case I was assigned until it broke my back,” Farago said, adding that he has started to decline cases. “If I hadn’t done it, I’d be sitting here with 2,000 cases.”
Same Pay Rates for Nearly Two Decades
In addition to the volume of new complaints, hearing officers echoed the findings of the February state report, saying they have stopped taking cases because the rates they’re paid for the work are relatively low, and the city has previously failed to pay them on time.
The state education department is responsible for overseeing the program, including hiring hearing officers and setting the maximum pay rate. But the city is responsible for administering the hearing office and typically pays officers for set tasks, such as writing an opinion.
Officers sometimes end up earning less than half the $100-per-hour maximum set by the state for certain tasks, a disincentive for taking on complex cases. The pay rate hasn’t increased in 18 years, officials have said.
“If you don’t get paid for four months doing demanding work that’s underpaid, then you go out and look for other ways that you can find clients and do work and put food on the table,” Farago said, noting many hearing officers work part-time and have outside legal practices or other jobs.
De Leon said the city owes him a significant five-figure sum for work he’s already completed, and last month stopped taking on new cases in part because “I didn’t want it to get to six figures.”
Both Farago and De Leon said the state’s numbers seemed a bit different than their own. But De Leon conceded his caseload at one point was above 1,500.
“It’s unprecedented,” he acknowledged. “I quite frankly have not seen anything like this in the years that I’m doing this.”
City education officials said their past difficulties making on-time payments have been resolved, with invoices now processed within 30 days. They also argued that decisions about capping caseloads fall to the state, a move state education officials are considering.
“We have been laser-focused on improving the impartial hearing process for families and officers,” said city education department spokesperson Danielle Filson.
Multiple hearing officers said they try to prioritize cases where children are in dire circumstances without school placements or other services, but it can still take months for cases to wind through the system.
Citing a lack of available hearing officers, the city is now running a waitlist of cases that haven’t even been assigned at the request of the state education department.
Reaching a Tipping Point
Dolores Swirin-Yao says she filed a due process complaint on Sept. 23 seeking tuition reimbursement for her son to continue attending the Aaron School in Manhattan, where he’s been for years after a hearing officer agreed the education department couldn’t adequately serve him.
The rules require that she file a complaint every year in order for her 15-year-old son Jeremy, who was diagnosed with dyslexia and ADHD, to stay there.
Within days of filing, Swirin-Yao was notified that the case had been assigned to De Leon — but the 30-day deadline for holding a resolution hearing came and went without a peep from the education department.
She says the city didn’t assign a lawyer to her case until Dec. 4
“It’s a long process but it’s usually gotten off the starting line by now,” she said. “It seems like they’ve reached the tipping point in terms of how many cases they’re handling.”
Manhattan mom Eliyanna Kaiser has cycled through five impartial hearing officer assignments since filing a complaint in July to secure additional speech and behavioral therapy for her 7-year-old son, who has autism. Her case was twice assigned to De Leon, who recused himself because he couldn’t hear the case “in a timely manner,” email records show.
Kaiser recently secured a hearing for Dec. 23.
Recruitment Drive Underway
“I know many people aren’t getting a hearing officer assigned at all — and I’m lucky in that respect,” she said. At the same time, she said, the ongoing delays are evidence that the system is broken: “It just tells me that this is in no way a priority.”
In the meantime, state officials said they’ve taken a number of recruitment steps to bolster the hearing officer roster, which has yielded 26 applications so far. They’ve also been working on a revised compensation policy with the city education department and hearing officers in the city.
The officials said they’re mulling a limit on the number of cases that can be assigned to each hearing officer, as well as a required minimum number of cases each must take per year. (State figures show that 25 hearing officers had fewer than 50 open cases as of late October.)
Still, advocates fear the situation could continue to get worse, especially with two of the most active hearing officers taking fewer cases.
“Essentially if De Leon and Farago aren’t taking as many cases as they do, some of these parents will never get their day in court,” said Steven Goldstein, a lawyer who handles special education cases and who filed the open records request for data on hearing officer caseloads.
“They’re making the best of a very bad situation for all of us.”
This story was originally published on [Decemeber 5, 2019] by THE CITY.”