Updates on the Hearing System

As you likely know, possibly from experience, the DOE often takes an excessive amount of time to resolve IDEA claims. It has become even slower and more dysfunctional over the last couple of years. While many of the delays are caused by the DOE itself (delays in settling cases, releasing funds, etc.), they are exacerbated by the fact that the DOE is unable to hire and retain impartial hearing officers (“IHOs”) to adjudicate cases. It is not uncommon to have multiple IHOs recuse themselves from a case causing significant delays, and since November, newly filed cases are placed on a months-long wait list for an IHO assignment -- these deficiencies are something you may be all too familiar with. While in the last five years the number of Impartial Hearing Requests ("IHRs") have doubled, the number of IHOs have dwindled. The amount of IHRs filed each school year has grown to approximately 10,000 cases per year. During the 2019-2020 school year, there were only about 12 IHOs to adjudicate these cases. One hearing officer had 1,713 cases on his docket, while another had 574 cases on his docket. (See articles in Chalkbeat and Politico). Why is the DOE unable to hire and retain IHOs? The main reason is that the pay rate for IHOs is very low. It has remained the same for almost 20 years. Additionally, there is a large backlog in pay. It can take months for an IHO to receive payment from the DOE. THE PROPOSED SOLUTION IS A PROBLEM The New York State Education Commissioner, Christopher Surian, is beginning to act to remedy this broken system. While we are encouraged that the Commissioner recognizes there is a major problem, we strongly disagree with the solution. The Commissioner has proposed hiring non-attorney IHOs to increase the number of IHOs to adjudicate cases, and thus speed up the hearing process. We, along with the parents’ attorney bar, are unequivocally in opposition the Commissioner’s proposal. In a letter to the Commissioner, dated August 17, 2020, we set-forth our objection to using lay IHOs and urged the Commissioner to reconsider this proposal (see our letter here). The parents’ attorney bar also sent a joint letter to the Commissioner opposing non-attorney IHOs. As you know, the role of an IHO, and the legal decisions an IHO is responsible for, are extremely consequential to you and your child. We strongly believe that this important legal responsibility should be performed by an attorney who has been trained to understand, analyze, and apply the legal requirements set-forth in the IDEA, New York State Regulations, and case precedent to the facts of the case being decided. OTHER SOLUTIONS There are numerous alternative approaches to accomplish the goal of having a more efficient hearing system without compromising the integrity of the decisions by permitting lay IHOs. The most obvious change that will increase the recruitment and retention of IHOs is by simply ensuring the pay rate is commensurate with the IHOs experience, and the customary pay rates for hearing officers, or similar legal positions in NYC. Also, it will assist in retaining IHOs if the DOE merely pays IHOs in a timely manner. We have requested that the Commissioner implements other, more effective strategies that will maintain the integrity of the impartial hearing system and make for a more efficient and effective process. For additional questions about the impact of this on your specific case, or other inquiries, contact us at jennifer@ratclifflaw.org or 646-741-3030. We will certainly keep you informed as this situation unfolds.