New York City parents who missed a rarely enforced deadline to apply for their children’s special education services can now receive those services, but only if they agree not to sue the Education Department.
The requirement affects about 3,500 families whose children attend private or religious schools or are home-schooled and receive resources such as teacher aides who attend class with them, speech therapy and occupational therapy.
About 17,000 families successfully filed to participate in the system this year by the June 1 deadline, which had not been enforced in previous years. The families who missed the cutoff were left in limbo.
Because they missed the deadline, their children have not gotten the services so far this school year. The waiver, which the Education Department sent to affected parents on Thursday, would provide the families expedited services in about three days, said Nicole Brownstein, a spokeswoman for the city Education Department.
But one lawyer who specializes in education issues described the waiver as “highly problematic” because of its vague wording, and another said such a pre-emptive move was extremely unusual. City Council members learned about the new waiver program during a briefing on Thursday.
“I think it’s outrageous,” said Councilman Keith Powers, who attended the meeting with the Education Department. He added, “It feels wrong, and the whole process has been a mess from the very beginning.”
The move marks another chapter in the long-running debate over how much public money the city spends on specialized services for students who do not attend public schools. Under state law, the Education Department must to provide such services to private school students who need it, even if the payments go to outside providers. Parents can also seek reimbursement from the department for providers they hire on their own.
Many families cannot afford to obtain the services without the Education Department’s help, and students who do not get the necessary services struggle to keep up and to hit developmental milestones.
Mr. Powers said that in his district, which covers part of Midtown and the city’s East Side, parents had told him their children were beginning to lag behind because they were not receiving help after the missed deadline.
Gina M. DeCrescenzo, a New York lawyer who specializes in special education issues who reviewed the waiver, said that it was “highly problematic” for several reasons, including that it did not inform parents which services they were agreeing to receive, and because it compelled them to forgo their right to complain about how the services would be delivered in the future.
Families with special education plans sometimes have to sue the city to have those plans enforced. Ms. DeCrescenzo said that parents who signed the waiver would be barred from doing so for the rest of the school year.
Ms. Brownstein, the Education Department spokeswoman, said the services parents agreed to receiving by signing waivers would be specific to their children’s special education plans, known as Individualized Education Services Programs, or I.E.S.P.s. The waivers are not tailored to each family, so they do not list the details of those plans, she said.
Susan Horowitz, an education lawyer at the Legal Aid Society, said such waivers were rare in a school context, even amid an increase in arbitration clauses being included in payment agreements and contracts for other services.
“This is the first time I’ve seen this outside of the context of settling litigation,” she said.
The state Department of Education found last month that by not enforcing the June 1 deadline in the past, the city department had relinquished its right to challenge parents’ claims for enhanced-rate services.
Practically speaking, the finding meant that if a student needed to seek help outside a school setting, such as by meeting with a speech therapist for $150 an hour, the department had to pay that amount, instead of the $90 it would typically spend to provide the service inside a school.
City schools officials sent out the waivers in response to the state’s decision, in an effort to avoid having to cover the higher costs. Ms. Brownstein said that the agency was “going beyond our legal requirements” by offering the waivers.
“Over the past decade, we’ve seen an exponential increase in filing for special education services by families attending private or parochial schools, and not seeking a public school education,” Ms. Brownstein said in a statement. “We will always engage families, including those who didn’t meet the deadline, and seek to serve them as soon and as best as we can.”
Mr. Powers said that many parents in his district chose to send their children to religious schools because of their beliefs. Those parents, he said, had a “reasonable expectation” that their children would get the services they required.
“This has always been something that parents had an expectation to receive for their children, and now this year, it’s changing,” Mr. Powers said. “A lot of families we’re talking to cannot afford these very expensive services.”
Kate McHugh, the principal of the Epiphany School, a Catholic school in the Gramercy neighborhood, said that in past years, parents had been informed in a letter that they had to apply for services, but that no deadline had been enforced. If they failed to apply on time, she said, they were reminded.
A Department of Education guide provided to parents seeking special education services does not mention a June 1 deadline, or any deadline at all. Ms. Brownstein said the guide would be updated on Friday.
Ms. McHugh said some parents had been confused to receive the waiver on Thursday without advance warning, and others had expressed reservations about signing. Schools had not been told about the new plan, she said.
“I think it’s good that there seems to be a path forward for families,” Ms. McHugh said, but she added that she was troubled by how the process was handled. “It’s definitely different than things have been done in the past, and the communication to nonpublic school leaders has been really lacking and inconsistent.”
Councilwoman Rita Joseph, who leads the City Council’s Education Committee, said that she was calling on Mayor Eric Adams, who oversees the city’s public school system, to work with the Education Department to come up with a plan to provide special education services to all students.
“Every child in our city deserves equitable access to education without caveats,” Ms. Joseph, a Democrat, said in a statement.
Gabrielle Gayagoy Gonzalez, who lives on the Upper East Side, said it had taken months to arrange services for her son, Alex, 5, who is autistic. Ms. Gayagoy Gonzalez missed the June 1 deadline, but she was eventually able to get the services Alex needed and was not sent a waiver. But she was concerned for parents who were not as lucky.
“Even though we had our I.E.S.P. in place, it doesn’t guarantee that the services will be assigned to you in a timely manner, and then now you’ve given up your rights to sue,” Ms. Gayagoy Gonzalez said. “I feel like they’re taking advantage of people.”
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