New York City is paying for more students with disabilities to attend private school; advocates say problems persist

Just months after taking office, Mayor Bill de Blasio announced that he would reform the city’s special education system – partly by making it easier for parents to leave it.

Rather than battle repeatedly with parents who have successfully proven that their children cannot be served in public schools, he promised to ease their path to private school and reimburse them more quickly.

Two years later, that policy is having a big impact. More students with disabilities are being educated in private schools than at any point in the last five years, according to the city, and fewer of their parents have to wage long and expensive legal battles to get the city to cover the cost.

Just over 4,100 students with disabilities had their private school tuition reimbursed by the city last year, a 42 percent increase since 2011, according to city data. And, over the same five-year period, the city settled nearly 49 percent more cases seeking reimbursement without going through a legal hearing process.

In a press conference announcing the policy shift in June 2014, de Blasio said the city needed to adopt a “family-friendly, respectful approach that didn’t matter how good your lawyers were, or how much money you had to spend on lawyers, but actually tried to address the family’s needs.”

“That is the mandate,” he said, “to make this easier and better for families to get money back in their hands.”

Streamlining the reimbursement process is, in many ways, the exact opposite of the approach employed by de Blasio’s predecessor. Though federal law allows families to petition for private school funding when the city fails to provide an “appropriate” public education, Mayor Michael Bloomberg hired extra lawyers to fight parents’ private school reimbursement requests as a way of avoiding unnecessary placements and saving money that could be reinvested in the public system.

That strategy, advocates said, often meant parents had no idea if their private placements would stick from year to year, and faced tremendous uncertainty over when they would be reimbursed.

“It was an emotional burden as well as a financial risk to parents,” said Rebecca Shore, Director of Litigation for Advocates for Children, which offers legal help to parents with limited financial resources.

Under the new policy, the mayor promised the city would not fight cases that it had settled in a previous year, or that parents won in a legal fight – as long as the child’s recommended placement and learning plan stayed the same. The city also said it would “expedite” tuition payments for all families, even those who never previously sought reimbursements.

According to several advocates and lawyers who represent families in private reimbursement cases, the policy is working for some families.

“For the uncomplicated cases, it works pretty well,” Shore said. “The cases are settling – the parents are not needing to file hearing requests.”

In 2015, the first year after that policy took effect, the education department settled 4,170 cases without going to a hearing, up from 2,595 the previous year, city data show.

Shore pointed out that the city’s settlement numbers seemed to outpace the total number of students who received private tuition reimbursements in certain years, but the city said its numbers are accurate.

Problems persist

Despite the new policy, and promises to expedite the reimbursement process, some parents say it is still far too slow, forcing them to take on tens of thousands of dollars in debt as they wait for reimbursement.

Dolores Swirin-Yao, a nonprofit president who lives in Brooklyn, has been waiting to be reimbursed for her 12-year-old son’s tuition since the education department agreed to settle her case back in January.

But even though the city agreed to pay $62,000, nearly all of her son’s tuition, it wasn’t clear when the money would come through. Under her agreement with the city, which Swirin-Yao shared, once the education department received all the relevant paperwork, it was supposed to approve and process payment within 30 calendar days. She has provided all the documents, she said, but is still waiting for payment.

“There’s no sense of urgency in the system, or a sense that it’s financially crippling,” said Swirin-Yao, who said she has accumulated roughly $100,000 in debt for all of this past school year’s tuition plus some payments for next year.

Jesse Cutler a partner at Skyer Law, whose firm represents Swirin-Yao, said some cases were being reimbursed faster this year, but that a number of others seemed to be held up in the comptroller’s office, which approves tuition settlements as part of a multi-agency process.

“There are cases that have definitely not met the timeline the mayor set forth,” said Cutler, whose firm handles roughly 1,000 tuition reimbursement cases each year.

Other lawyers for parents echoed his concerns. “I don’t mind there being some checks and balances, I just wish they could expedite it,” said Neal Rosenberg, another lawyer who handles reimbursement cases.

Officials in the comptroller’s office said it was inaccurate to suggest they were responsible for delays, noting that there can be time lags between the moment parents agree to settle and when the education department actually sends the comptroller the relevant documents.

“The comptroller’s office reviews all claims made by the Department of Education on their merits to ensure that every child receives the education to which they are entitled,” Eric Sumberg, a spokesperson for the comptroller, wrote in a statement.

After Chalkbeat called both the comptroller and education department for comment on Swirin-Yao’s case, her claim entered the final phase of approval, and she is now expecting to be paid in several weeks.

Questioning the goal

Some observers argue that even if the de Blasio policy is having the desired effect, it still might not be in the best interests of students with disabilities across the system. In 2015, the city spent roughly $176.3 million on private school placements, a 23 percent increase since 2011.

“That’s a huge depletion of resources from the public schools,” said Eric Nadelstern, a former deputy schools chancellor who is now a professor at Teachers College. “Any money that’s not in school budgets is at the expense of school budgets.”

City officials said the “vast majority” of students with disabilities are appropriately served in public schools. (The number of students who get private tuition reimbursement from the city is roughly 2 percent of all students with disabilities.)

“We are continuing our commitment to supporting the needs of families with valid claims for tuition reimbursement by making the settlement process more efficient and easing the burden on thousands of families with disabled children,” education department spokeswoman Toya Holness wrote in a statement. She noted that the city has expanded programs for students with autism and placed new psychologists and social workers in traditional district schools.

But other advocates noted that the reimbursement process still favors families with access to money, information, and legal help – and that making it easier for those families is a tacit acknowledgement that many disabled students are likely not getting what they need in the city’s public schools.

“What it says to me is what we knew – which is there aren’t appropriate public school placements for those kids,” said Maggie Moroff, a special education policy expert at Advocates for Children. “It’s a good thing in that students are probably getting appropriate services in those private schools, but not every student in the public schools have parents who know they can bring litigation.”

This article was first published on Chalkbeat New York on July 8.