“But how long is this going to take?” Understanding The Timeline Of A Special Education Case
When you first engage a special education attorney, one of the questions that might nag at you is how long it will take to see any results. How long will you have to wait to get reimbursed for the tens of thousands you’ve already spent on schools or services? How long before your child gets the increase in service hours that he or she desperately needs? It’s hard to answer in a way that’s satisfactory to everyone. Some people go into this process expecting it all to be wrapped up in six months and end up disappointed. Some are afraid it will take two or three years just to get an answer about one school year and are relieved to find out that that’s very unlikely.
It is helpful for parents of special needs children to understand why your case might involve multiple steps and why each of these steps takes time. Here, I’ll walk you through the main stages and timeline of a New York special education case.
Timeline of a New York Special Education Case
1. Filing the Case
The Requirements of Notice and a Complaint
Nothing happens until you’ve established that you actually have a case to begin with, by filing notice with the school district, or showing your attorney that you’ve already done it. Ideally, you will notify the district of your intention to enroll your child in a private placement two weeks before the start date, though in some cases, you might be able to file notice later and still be entitled to some relief. You might also have a valid claim if your child has been receiving private services for a long time due to the failure of the public school system to provide them and if the district has been aware of this fact. However, your attorney can help you formalize this notice to make sure you’re preserving your rights to the greatest extent possible.
Sending notice to the district doesn’t mean you’re going to a hearing now. First, you have to file a Due Process Complaint, also sometimes called an Impartial Hearing Request. This is where you lay out the reasons why you believe the district didn’t provide your child with an appropriate educational program, and explain what you want as relief (e.g. for the district to reimburse you for private school tuition, fund a bank of compensatory hours for a service, etc.). Once the complaint is filed, your case will take at least two months to fully resolve, and likely longer, for reasons I’ll explain below.
You can help this process along by clarifying exactly what you’re seeking from the beginning.
2. What We Need to Know Before We File a Complaint
You’ve engaged legal services… so why hasn’t a complaint been filed? Why don’t you have a hearing date yet? How soon are you going to get your funds? What’s going on? Your attorney or advocate needs to gather some specific kinds of information before filing a complaint. You can help this process along by clarifying exactly what you’re seeking from the beginning. Three hours per week of OT and four hours of speech? Tuition at an ABA school and 10 hours per week of after-school ABA? A special school and special transportation accommodations? Anything you’re hoping to get from the hearing needs to be included in the complaint.
You also need to make sure you can raise a claim that the school district violated your rights. If you’ve never referred your child for an IEP, you need to do that first. If you already have an IEP and public school placement that you’re unhappy with, your attorney needs to explore what exactly the school district did wrong. Check out Curious Incident Podcast episode 7 for more details on the legal process!
You also might need to wait if you’ve started this process early (which is always a good idea). In order to file a complaint alleging that the district failed to provide an appropriate program for a particular school year, the school year in question actually has to start!
If you file a case and the school district wants to settle, this can be beneficial, especially in cases against the New York City Department of Education (DOE), because settlements usually take less time than a hearing and help you get the requested relief faster. But settlement is still a process, and it’s an unusual process compared to other types of litigation.
When the DOE thinks a case is appropriate for settlement, they will send the Parent or Parent’s counsel a letter stating that they would like to work with them to resolve the case. They will request documents providing basic information about the private school and/or services, as well as proof of costs and attendance. Then, you or your representative must gather these documents and send them to the DOE attorney assigned to review your case. The DOE attorney must then prepare a memo to the City Comptroller, asking for authorization for what they determine to be a reasonable amount of funding, and await approval. Sometimes, you can be lucky and that process can take only a few weeks, but sometimes it takes a few months. Then, you have to determine whether you actually want to accept the DOE’s offer. Once you do, both sides are required to sign off on a stipulation. Even that can take a couple of weeks to fully resolve, as an attorney Team Leader or manager must sign the “stip.” While we can follow up with the DOE attorney to check in on the progress toward a settlement offer, we have little control over how quickly they can get it to us. This is not the type of case where the plaintiff’s side can just jump in with an offer and see if the DOE agrees or counters; they must tell us that they’re interested in settlement for this process to even get started.
The bright side of all this is that once a stipulation is signed by both sides (“executed”), it is efficiently implemented. You or your attorney sends the stipulation, along with supporting documentation such as attendance records and proof of payment, to a specific unit at the DOE responsible for processing settlement agreements. Luckily, it only takes about a month for the first payments to start rolling in. However, you must wait until the end of the school year for the funding and/or reimbursement to be paid out entirely, as the DOE wants to see attendance for the full school year first.
Not all cases settle, and that’s okay!
Not all cases settle, and that’s okay! A hearing can have a lot of advantages, including getting you more funding than the DOE is willing to negotiate for, and giving you “pendency,” i.e. an automatic entitlement to funding for the same placement for the following school year, while the next hearing is “pending.”
5. Preliminary Matters
Once a complaint is filed, it goes into an automatic 30-day “resolution period.” During this time, the DOE is supposed to meet with parents and attempt to resolve the issues. Sometimes you can agree on a few things, such as the DOE paying for a private evaluation. However, they can’t resolve all claims at this level, such as requests for tuition reimbursement or higher rates for private service providers. During this same time period, you might also find out if the DOE is referring your case for settlement. At the end of the 30 days, an impartial hearing officer (IHO) is assigned and usually tries to convene the first conference.
If you’re represented, your attorney will appear at pre-hearing conferences and status calls for you. This is where the IHO determines the issues in dispute and checks on progress towards settlement, if applicable, and the parties’ readiness to proceed to a hearing. The IHO generally has 45 days to issue a decision after the resolution period, but will usually extend this “compliance timeline” at least once, for various reasons, including whether the parties are exploring settlement in good faith, availability of witnesses, and the parent and attorneys’ schedules. The timeline will also restart if you amend the complaint because new information has come to light or you want to seek a form of relief that you didn’t originally include.
6. Completing the Hearing
If it becomes clear that a case is not going to settle, or you don’t want to wait any longer, the IHO schedules a hearing. Depending on the IHO’s schedule and style, the hearing might be for a block of several hours, or take place across multiple dates. If you don’t finish a hearing in the expected timeframe – for example, if the cross-examination of one witness takes a lot longer than expected – the IHO can schedule more dates to come back to complete all witness testimony.
Realistically, you should expect it to take anywhere from 3-6 months to complete a hearing after your complaint has been filed. Once all witness testimony is wrapped up, the IHO has 30 days to issue a decision, though this timeline can also be extended if the parties are submitting written closing arguments. Once the IHO receives closing briefs, it can take anywhere from a week to a month to get your decision, depending on who the IHO is.
What Happens Next?
If you get a favorable decision, it has to be implemented, meaning the DOE’s implementation unit needs to see not only the decision, but proof of the tuition that’s owed, proof of payments you’ve already made, etc. This process is technically only supposed to take about a month, but it is usually longer. Your attorney can also speak to you about what the decision means for the upcoming school year.
For a deeper understanding of the implementation process, please check out Curious Incident podcast episode 13 (2 parts): Understand The Implementation Process
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Do you have questions about your child's education? Call Special Education Attorney Adam Dayan at the Law Offices of Adam Dayan: (646) 866-7157 and request a consultation with our New York attorneys today.