Tuition Reimbursement: Are We There Yet?
At the instigation of Mayor de Blasio’s administration, the Department of Education (DOE) has begun offering to settle more and more cases than ever before. This has left many parents with a seemingly easy decision between (A) taking their case to hearing and (B) negotiating and agreeing to a settlement.
It is not uncommon for parents to assume that a settlement will be a faster process, and sometimes it is. But that’s not always the case.
Clearly, one of the advantages of the settlement process is that it provides parents with certainty of outcome. Many parents feel much safer than if they were “risking it all” at a hearing, and since negotiations can be conducted via telephone and email, they seem like the faster route as well.
While it is true that the DOE typically will not abandon settlement negotiations, it is also true that getting a payout from a settlement can sometimes take even longer than it does to implement a successful hearing decision. There are several reasons why this happens, but first, let’s discuss the settlement process.
Front-End Negotiation
Once the DOE agrees to settle, we must negotiate against the DOE’s representative or attorney by arguing the relative strength of the opposing positions. As you can imagine, we seize every possible advantage and often prepare for negotiations as though we were preparing for the hearing itself. If, after an exchange of offers and counteroffers, our client accepts a proposed settlement, we then memorialize it in a Stipulation of Settlement.
In addition to specifying how much money will be disbursed (and to whom), the Stipulation of Settlement will include assurances for both the parents and the DOE, potentially including a withdrawal of a hearing request, liability waivers, and so forth. During this process, it is not unusual for a stipulation to go through multiple drafts until the parties are satisfied with the wording of each clause.
Bureaucratic Checkpoints
Unfortunately, the DOE doesn’t have the final say because the Office of the New York City Comptroller must approve the amount of any settlement in excess of $25,000. As such, the DOE’s representative has to draft and submit a Settlement Memorandum setting forth the DOE’s reasons for agreeing to the proposed settlement. Then, the Comptroller’s Office must consider this memorandum and return its decision.
Though it seems simple, this process has historically been a huge cause of delays. From our experience, it is not unusual to wait several months for ‘Comptroller Approval’ despite repeated follow-up by our office and the DOE. The fact that the Comptroller’s Office currently has a huge backlog often pushes the recovery time back. There are also political elements that could influence the time that it takes for a stipulation to be signed, which makes it very difficult to know what the timeframe will be for any particular settlement.
Once the DOE attorney receives approval from the Comptroller’s Office, the DOE can sign off on the Stipulation of Settlement and forward it, along with proof that the parents are entitled to recovery to yet another department — usually the Impartial Hearing Office Implementation Unit or the Bureau of Non-Public School Payables. Fortunately, these departments are held to a specific timeframe in which to gather documents and issue checks.
Although this process may initially seem like a simple matter (i.e., two lawyers make and accept an agreement) there is actually a considerable amount of bureaucratic red tape that can prevent these settlements from happening as fast as some parents may expect.
It’s important for parents to not only have an understanding, but also a realistic expectation about this process. Our firm will always push for swift resolution and orient the case so that it is more likely to settle and be processed quickly.
Parents, here are two important takeaways:
1. Be patient even when it seems like nothing is happening. The gears are always turning behind the scenes and we apply consistent pressure to keep things moving in the right direction.
2. Keep impeccable financial records for out-of-pocket costs, particularly proofs of payment.
Contact us with your questions.
Jonathan Gottlieb
Partner
195 Montague Street
14th Floor
Brooklyn Heights, NY 11201
Jonathan@GottliebFirm.com
(646) 820-8506
Marc Gottlieb
Partner
195 Montague Street
14th Floor
Brooklyn Heights, NY 11201
Marc@GottliebFirm.com
(646) 820-8506