REMARKS
Explanation of increase in due process filings and IESP cases
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ยท
7 min
Liz Vladeck, General Counsel for the NYC Department of Education, explains the significant increase in due process filings and clarifies the nature of IESP (Individualized Education Services Program) cases. She discusses the concerns raised by both the US Department of Education and the New York State Education Department regarding this growth.
- Due process filings increased from about 6,000 in 2014 to over 26,000 last year
- More than 18,000 of the recent filings were seeking IESP services
- Vladeck emphasizes that IESP cases are different from situations where the DOE failed to provide FAPE (Free Appropriate Public Education)
Liz Vladeck
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Thank you, chairperson Joseph.
0:41:08
I'm I'm very glad to have a chance to discuss the process.
0:41:13
For a number of years, both the US DOE and the New York State Education Department have been very, very dismayed by the exponential growth in due process filings.
0:41:26
To just give ourselves a baseline, there were around 6,000 total due process cases filed in 2014.
0:41:35
That number actually went down for a few years, and then it began to rise sharply.
0:41:41
Last year, there were more than 26,000 due process complaints filed.
0:41:46
Of those, more than 18,000 were seeking IESP services.
0:41:54
And I must, apologize that I didn't stay state front and center this critical point.
0:42:01
Of course, any family is entitled to seek any education for their child that they want.
0:42:07
We would never quarrel with that.
0:42:10
But I must take exception to the idea that in IESP cases, we have somehow failed the student or the family.
0:42:20
These are cases where we were never asked to provide FAPE.
0:42:26
Carter cases, that smaller percentage of the 26,000, those cases, the legal posture of those cases is that the family at least says they wanted a public school education, and we failed to provide it.
0:42:44
IESP cases are where the family has decided the legal term is parental placement.
0:42:50
They're not seeking a public education.
0:42:52
And our obligation to, support and provide for the services that their students may need, is actually capped by the IDEA.
0:43:04
It's it's you know, there's a recognition that there's a differentiation in the responsibilities of a school district to public school students versus to families who have chosen not to pursue the public education option.
0:43:19
State law was amended about 15 years ago to expand those rights for individual students, IESP rights, to say that, it it's the law is actually not explicit.
0:43:32
We are hoping at some point to have a chance to look at the legislation.
0:43:36
But as it's been interpreted, saying to us sort of the sky's the limit, for what IESP kids may need.
0:43:44
The law did nothing.
0:43:46
The state law did nothing to clarify.
0:43:49
Well, how do you relate that right over to the IDEA's statutory scheme.
0:43:57
And in fact, what the state has been converging on and what they announced in May of this year was that due process filings where the only issue was, to the public advocate's point, that DOE has, quote, not offered a provider.
0:44:20
And so, really, the only issue is the parent is saying, I want the DOE to have to pay the rate that I found for the provider that I found.
0:44:30
So these are enhanced rates cases.
0:44:33
The state issued a rule clarifying its view of the law, which is that those cases requesting an enhanced rate, are not entitled to due process.
0:44:46
Now that specific question concerns, including US DOE's sort of questioning continued funding, and the amounts of funding.
0:45:06
So we really were given a small we and the state were given a small window to take, you know, strong action.
0:45:13
Understanding that due process wouldn't be available for many of these claims, we very quickly moved to set up an administrative unit in my team called the Enhanced Rates Equitable Services or ARIS unit so that if families were in the position where we had not offered a provider and the one they found was charging far more than a market rate, $200 an hour, $300 an hour, we could conduct an expedited administrative review, for whether we thought that amount was justified.
0:45:51
Part of that review and part of the state's law making or rule making, excuse me, acknowledges that there have been far too many fraud indicators in IESP due process filings.
0:46:04
And so one of our threshold requirements to use the ERS process is we must have a signed notarized affidavit from a parent or guardian.
0:46:15
We must have some demonstration that the family is actually aware of the pursuit of this claim, far too many cases where they're not.
0:46:25
What I'm very pleased to say is that in all of the ARRIS filings we've received, and it's been a smaller number than we expected, I shouldn't say all, in a very high percentage.
0:46:38
Once we have conducted the review, we have been able to say in tandem with the efforts by the CSEs we've described, listen, I'm sorry, we're not gonna great grant this enhanced rate of 2 100, $300 an hour because we already have made you an offer.
0:46:56
We have offered an itinerant teacher.
0:46:59
We've been ready to send them to your schools.
0:47:02
We've given you a p four voucher, and the amount of money, the the uptake of those vouchers is much, much better than it was.
0:47:09
So we sort of question if you can find a provider.
0:47:12
Right?
0:47:13
So all of these steps I mean, I think you can all recognize, like, standing up a totally new unit in process in 2 months.
0:47:22
All of the things that I'm describing were processes that moved incredibly quickly.
0:47:27
And one of the elements of that process was the state saying to us, listen.
0:47:32
You cannot be inconsistent anymore about the June 1st deadline.
0:47:37
That deadline has been on the books for years.
0:47:40
It is the only way in which state law limits this expansion of state law, puts a limit on a school district's financial obligations, with the idea being that if we don't know how many kids we have to pay for service provide services for in the coming year, it's very hard for us to budget.
0:48:02
It's very hard for us to plan.
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It's very hard for us to ensure we have an
Althea Stevens
0:48:06
adequate range of providers available to our