Tomorrow's Problems Are For Tomorrow
As Bill de Blasio’s administration was turning off the last light in Gracie Mansion, the former mayor pushed through a reform of the tuition reimbursement process. The new configuration transfers the responsibility of impartial hearings to the Office of Administrative Trials and Hearings (OATH).
Before this, OATH handled claims against the various arms of the New York City government — basically any violation from the Department of Sanitation, Department of Buildings, Department of Transportation, etc.
A lot of my colleagues are afraid that this will invite worse outcomes. They anticipate the hearing officers from OATH will be more pro-city and anti-parent than the current bench of impartial hearing officers. They also fear that this change will expedite hearings in cases where speedy process can actually be undesirable.
I recently spoke to one of my colleagues about his concerns about the change. He said, “Frankly, if you asked me why I’m concerned about OATH, I couldn't give you a single specific reason. I just don’t like it.”
His anxiety is likely due to the fact that he does a lot of pendency cases. Pendency is a "stay put" provision that entitles the parent to force the school district/DOE to continue providing/funding the last "mutually agreed upon" placement. That includes situations where the DOE loses a tuition reimbursement claim at hearing but declines to appeal. For a pendency case, it’s actually better to avoid hearings because the status quo is the goal.
I have yet to hear a concrete reason to be afraid of the reforms. While it would certainly come as a disappointment if these oath hearing officers proved prejudice in favor of the city, it's important to bear in mind that impartial hearings are also by state employees.
The first couple of months under OATH might be difficult. Nobody can say that OATH definitively will not start out trying to pass every possible victory to the DOE that it can. But in time, the DOE’s intransigence and uncooperativeness will win out. And any goodwill that they enjoy with OATH at the start will burn off on reentry.
I've been blessed to practice in this field long enough to notice that every single year there is a new calamity on the horizon, yet they never seem to make much of a difference in the industry as a whole.
I'm not a confident attorney because I spend all of my time worrying about future outcomes — I'm a confident attorney because I know that no matter what agency is responsible for adjudicating my claims, I have set my clients up for success.
I will note that before this, I had never heard of any scandals involving OATH. There have been no allegations of them working hand in glove with any other City agency.
The situation reminds me of an old joke: Two college students are concerned about the outbreak of war. One of them says:
“You don't need to worry so much. I'll tell you why. First of all, there might not be a war. Secondly, even if there is a war, it could be over in a couple of days. In which case you have nothing to worry about. It might be that the war goes on, but even then you might not get drafted. In which case you have nothing to worry about. And even if you're drafted, you're not necessarily going to wind up in the infantry. And if you end up in the rear echelon of troops, you're not going to be in any trouble. And even if you're in the infantry you might not see combat, in which case you have nothing to worry about. And even if you see combat, there's nothing to say that you're going to get wounded. And if you get through with it, then what's the problem? You have nothing to worry about. And even if you get wounded, you're not going to die. And as long as you're recovered, then you have nothing to worry about. And even if you die, you have two possibilities. You go to heaven, you go to hell. And if you go to heaven, then certainly you have nothing to worry about. And even if that's not the case and you were to go to hell… Well, look, there might not be a war in the first place!”
For now, I'm content to focus on my clients’ current ongoing claims in the full confidence that, if I can resolve those claims in a timely fashion, I can devote more attention to tomorrow's problems tomorrow.
Marc Gottlieb
Partner
195 Montague Street
14th Floor
Brooklyn Heights, NY, 11201
Marc@GottliebFirm.com
(646) 820-8506