Sign up for Chalkbeat New York’s free daily newsletter to get essential news about NYC’s public schools delivered to your inbox.
After denying thousands of New York City students with disabilities critical services earlier this year, Education Department officials are now offering them a chance to restart those services — with a big catch.
Just weeks before the start of the school year, the city Education Department, with little warning, began strictly enforcing a June 1 deadline for students with disabilities who attend private school and requested city-funded special education services to which they’re entitled under state law. The deadline had previously been loosely observed, and its newfound enforcement was part of a larger crackdown meant to rein in alleged fraud and ballooning costs.
While roughly 17,000 families filed on time, another 3,000 families missed the cutoff, losing out on services like tutoring or speech and occupational therapy.
Education Department officials promised to start restoring services for the late filers once they’d arranged services for families who met the deadline.
This week, officials took a step toward making good on that pledge, sending out letters to thousands of families who missed the deadline offering vouchers to cover the cost of special education providers.
But the offers come with a big asterisk.
To receive the vouchers, families have to sign a waiver relinquishing their rights to file a legal complaint against the city Education Department, according to the letter obtained by Chalkbeat. Families have two weeks to decide whether to sign it.
The proposal is already drawing sharp criticism from some lawmakers.
“After failing to provide these services, [the city’s] plan to dangle in front of parent and guardians their children’s badly needed educational support in exchange for being freed from legal liability is nothing short of outrageous,” said Rita Joseph, Brooklyn City Council member and education committee chair, in a statement posted to the social media platform X.
Officials told Chalkbeat that asking families to waive their rights to sue the Education Department was the only way to restore the services without opening up the city to “hundreds of millions of dollars in liability.”
By offering the late filers services, the city is forfeiting its right to use the missed deadline as a legal defense, which creates massive legal exposure, officials said. The Education Department is unwilling to take that risk without the waiver since the city already spends north of $500 million a year on special education for private school students, officials said.
For families eager to restart services, the new offer poses a dilemma.
On one hand, accepting the offer may be the fastest route to restarting desperately needed services, according to special education lawyers who spoke with Chalkbeat.
But it means losing the option to force the city to retroactively cover the costs of the services they’ve missed so far this school year, known as compensatory services. It also means families can’t force the city to supplement the value of the voucher if, as often happens, families can’t find a provider willing to accept the standard rate the city offers.
“They’re kind of putting parents in between a rock and a hard place,” said Jesse Cutler, a partner at Regina Skyer and Associates, a firm that represents families in special education cases. “I think it’s a case-by-case decision — you have to look at all the circumstances.”
Here’s what several lawyers said families should consider when weighing the offer from the Education Department:
How fast do you want to restart services?
For some families, the most important consideration might be how quickly they can resume services after months off, said Rebecca Shore, the director of litigation at Advocates for Children, a group that represents families pro bono in special education disputes.
“If the parent has already found a provider, and the provider accepts the voucher, it certainly can be a course that they should consider,” said Shore. “It would be probably the fastest course.”
Otherwise, families may need to file a legal claim called a due process complaint that is heard by an impartial hearing officer, a process that can take time to resolve.
“What you’re looking at is several months, if not longer,” Cutler said.
Plus, winning a favorable ruling from an impartial hearing officer isn’t guaranteed, and city officials would likely challenge a family’s legal claim by noting they missed the filing deadline, which is enshrined in state law.
Shore said a family still “can have a claim” against the city even if they missed the deadline. But she didn’t want to generalize about a family’s chances of prevailing because the outcome of a given case is highly dependent on the specific facts.
Education Department officials argued that families who missed the deadline “essentially have no legal recourse” and therefore have little to lose by accepting the city’s offer.
Are you seeking ‘compensatory’ services?
One concrete thing that families would give up by accepting the Education Department’s offer and signing the waiver is the right to push the city to pay for compensatory services for this school year.
Normally, families can file due process complaints to try to force the city Education Department to pay for services to which their child was entitled but never received. By signing the waiver, families lose that option.
“These students are entitled to services [in] September, October, November, December,” said Shore. “Giving up their right to make-up services for that entire time period, again, is a parent’s consideration.”
Can you find a provider who accepts the Education Department’s voucher?
The last big variable is whether families are willing to give up the right to try to force the Education Department to pay a higher rate than the voucher offers.
The city’s voucher for special education tutoring services is worth $86 an hour, but many providers charge more than that, Shore said. To cover the difference, families often have to file a legal complaint against the Education Department seeking an “enhanced rate.”
City officials have argued that the enhanced rate system is rife with fraud and say many providers are overcharging or collecting for services they don’t perform.
One of the conditions of accepting the Education Department’s new voucher offer, however, is waiving the right to seek an enhanced rate. That could put families in a tough spot, legal advocates said.
For families who don’t already have a provider lined up who accepts the Education Department’s rate, finding one in the middle of a school year would be a “Herculean feat,” said M’Ral Broodie-Stewart, a lawyer at Staten Island Legal Services.
“It’s great if the family has a provider that is able to accept the Department of Education’s rate,” Cutler said. “But there is a substantial and significant lack of providers citywide.”
Education Department officials said families unable to find a provider can contact their local Committees on Special Education for help. The Education Department also employs 19 itinerant special education teachers who work with private school families. But that’s a drop in the bucket of the roughly 20,000 students entitled to services.
Making matters even more complicated, the legal process for pursuing an enhanced rate is in flux. In past years, families have relied on due process complaints to compel the city to pay more than the standard voucher rate. The state’s Board of Regents passed a resolution this year empowering the city’s Education Department to set up its own system to adjudicate those requests. A lawsuit has temporarily put that resolution on hold, but it’s still unclear what the process will look like in the long term.
Education Department officials said they plan to post an FAQ on the city’s website to help parents decipher the waiver.
But Broodie-Stewart recommended parents consult a lawyer before making a decision.
“The average person may not fully understand what [the] legalese term of ‘release, waive and relinquish’ means,” she wrote in an email. “Yet they would be giving their rights away by signing this form.”
Michael Elsen-Rooney is a reporter for Chalkbeat New York, covering NYC public schools. Contact Michael at melsen-rooney@chalkbeat.org.
Alex Zimmerman is a reporter for Chalkbeat New York, covering NYC public schools. Contact Alex at azimmerman@chalkbeat.org.
