NYLAG Wins Special Education Case on Appeal to State Review Office

Special Education services help children in New York City.

Lately, the process of securing appropriate placements for disabled children has become increasingly challenging for their parents. “The Department of Education [DOE] is now far more aggressive in fighting efforts to appropriately place disabled children,” said NYLAG Special Education Unit Director, Laura Davis. “While the DOE used to rely on district representatives – usually psychologists – to represent it at impartial hearings, it now uses lawyers who seem to deliberately prolong the process, which puts additional strains on parents.”

As recently as last year, impartial hearings often concluded after one or two sessions, but they now typically require five or more sessions stretching over many months. The process has become significantly more adversarial, and parents are anxious. New York has a two-tiered system, which means that after reaching a decision at the impartial hearing level, the aggrieved party must go to the State Review Office before bringing an action in federal or state court. The State Review Office overwhelmingly rules in favor of the DOE, and it rarely reverses an impartial hearing decision against the public schools. However, Supervising Attorney, Phyllis Brochstein, recently succeeded in appealing an unfavorable impartial hearing decision.

The impartial hearing officer evaluates three criteria:

1) Did the Department of Education (DOE) offer the student a Free Appropriate Public Education (FAPE)?

2) Does the parents’ choice of a private school appropriately address the needs of the student?

3) Do the equities support the parents? Did the parents cooperate with the DOE throughout the complete process?

In Ms. Brochstein’s case, “Daniel,” a kindergartner with Pervasive Developmental Disorder, a condition on the Autism spectrum, was struggling in a DOE-assigned public school classroom. Daniel’s mother had objected to the placement at the outset. A classroom of 25 children not only overwhelmed Daniel, but it also failed to provide him with the necessary individual support. He was unable to focus or think logically or coherently, and he began to regress.

Having researched a number of therapeutic educational settings, Daniel’s mother removed him from the public school and enrolled him in a state-approved private school specifically designed to address the needs of children with Daniel’s disabilities. A small, structured class with non-aggressive peers and a high staff-to-student ratio provided him the necessary support and positive reinforcement to complete tasks and work to the best of his abilities.

Daniel’s mother contacted NYLAG for assistance with Daniel’s private school placement, particularly to obtain DOE funding. When Ms. Brochstein brought the case before the impartial hearing officer, it was clear that the DOE had failed to provide Daniel with a FAPE.

However, the impartial hearing officer decided against Daniel’s mother on the last two criteria “despite the fact that we had strong arguments on all three criteria,” explained Ms. Brochstein.

Ms. Brochstein immediately prepared an appeal to the State Review Office, which based upon an examination of the entire record, reversed the decision of the impartial hearing officer. It held that the private school chosen by Daniel’s mother was entirely appropriate and that the equities clearly supported her case. Having found in favor of Daniel’s mother on all criteria, the State Review Office ordered the DOE to pay Daniel’s tuition at the private school where he is now thriving.