Education Dept. Criticized Over Special Ed. Checks

The state Education Department is coming under fire from attorneys from both inside and outside the agency who say it illegally denies educational services to hundreds of disabled children. Lawyers representing parents of disabled children are meeting today to discuss plans to file a civil rights lawsuit against the agency at the center of the conflict, the Office of State Review.

At least seven of the 10 attorneys on staff have quit the State Review office in the last three years, including several who left because they were concerned about violations of law, sources familiar with the office said. One former staff member said nine attorneys had left the office. A spokesman for the state education department, Tom Dunn, could not immediately confirm the reports of the turnover. The review office is the last step in a process designed to supply an impartial decision on what services school districts should give disabled students, such as tutoring, aides, and private school tuition. Parents and school districts first make arguments before a hearing officer. The office rules only if either party wants to appeal the decision.

An analysis by a special education lawyer, Jeffrey Marcus, found that recent decisions have almost unanimously favored the districts: Between 2006 and March of this year, five of 43 cases where parents originally prevailed were upheld after school districts' appeals, and 37 of 39 successive cases favored the district completely.

Mr. Dunn traced the change to Supreme Court decisions that shifted the burden of persuasion and to changes in federal law. But several other sources said the office's head, Paul Kelly, who entered in 2003, is responsible.

A hearing officer who judges New York City cases, Lynn Almeleh, called Mr. Kelly's decisions "a very tortured reasoning to arrive at a predetermined conclusion."

A former staff member in the Office of State Review who requested anonymity said a main concern for Mr. Kelly was the cost services pose to school districts. Reimbursements for qualified private school tuition, for instance, cost New York City more than $49 million in the 2005–06 school year, a city Department of Education spokeswoman, Lindsey Harr, said. In trying to deny reimbursements, school districts often argue they can provide the same service in the public system, with no extra cost to taxpayers. On that line of argument, New York City is now appealing a reimbursement decision to the Supreme Court.

A special education lawyer who is leading the charge for a lawsuit, Andrew Cuddy, said a major concern is that the current decisions not become precedent.

Mr. Cuddy, who has written a book, "The Special Education Battlefield," yesterday sent a request to the state attorney general, Andrew Cuomo, asking for an investigation. Criticisms of the office were first reported yesterday by the Wall Street Journal.