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M.G.v.New York City Department of Education
United States District Court, Southern District of New YorkJul 14, 2021Full title
13-cv-4639 (SHS) (RWL) (S.D.N.Y. Jul. 14, 2021)
13-cv-4639 (SHS) (RWL)
07-14-2021
M.G., et al., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY BOARD OF EDUCATION, et al., Defendants.
ROBERT W. LEHRBURGER, United States Magistrate Judge.
ORDER
As discussed during the conference held on July 14, 2021, the parties shall continue to meet to advance settlement discussions as set forth in Dkt. 339 subject to the following modifications.
1. The City Defendants will provide a substantive offer in response to Plaintiffs' Autism Phase 1 demand by August 9, 2021. By August 23, 2021, Plaintiffs and the City Defendants will meet to continue discussions.
2. From that point on, Plaintiffs and the City Defendants will meet every two weeks. Plaintiffs and the State Defendants will meet every two weeks. Each set of Defendants may participate in the meetings with the other Defendants, but doing so is not required unless the parties agree that substantive contribution from all Defendants would be productive for that particular meeting.
3. The State Defendants will continue their research, analysis, and discussions regarding resolution of the ABA licensing issue. The State Defendants shall keep Plaintiffs apprised of progress in that regard and engage in substantive discussions with Plaintiffs prior to the next bi-weekly meeting between the State Defendants and Plaintiffs.
4. The City Defendants and State Defendants will make good faith efforts to have their client stakeholders and persons with knowledge whose participation will materially contribute to productive discussions participate directly in the settlement discussion meetings. At each meeting, the parties should discuss whether such stakeholder participation would be productive at the next meeting (or some particular time thereafter), and if so whom those persons should be.
5. Before the conclusion of each meeting, the parties will discuss and agree upon an agenda for the next meeting. Within 48 hours after the conclusion of each meeting, each substantively participating party (i.e, Plaintiffs and the City Defendants, or Plaintiffs and the State Defendants) shall separately email to the Court's chambers email address on an ex parte basis a one-paragraph summary status report. At their option, both the City Defendants and State Defendants may submit such a report for the meetings for which they do not have substantive responsibility.
This particular procedure was not discussed during the conference, but the Court believes it will be the most efficient and clearest way to proceed with respect to agenda-setting.
6. The Court will participate in a settlement conference (of no more than three hours) with the parties approximately once every six weeks. The parties shall cooperate with my Courtroom Deputy in scheduling the conference dates. No later than three days before each such conference, (a) the parties shall jointly file a status report, including but not limited to identifying the issue(s) the parties would like to discuss during the conference, and (b) the parties may each submit an ex parte a letter of no more than five pages providing any additional information they think will be helpful in resolving the case.
7. The parties shall cooperate in providing specific documents or information requested by another party in aid of settlement.
8. The temporary stay currently in place will be continued until December 2, 2021.
SO ORDERED.
see also:
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A federal district judge has approved a settlement agreement between the education department and disability rights advocates in the Bronx, resolving a four-year-old lawsuit that challenged the city’s process for allocating certain special education services.
The settlement, in effect for three years, requires the education department to make a series of changes to the way it provides what are called “related services,” which include occupational therapy and mental health counseling, among other supports for students with disabilities.
Many schools do not have enough on-site staff to provide these services to all the students who are entitled to them. When that happens, schools can give parents a voucher to cover the cost of the service. But a number of barriers prevent parents from using vouchers. Families sometimes struggle to find providers willing to travel to their neighborhoods, for example, and many providers are simply unresponsive or not taking on more clients.
As a result, vouchers are often left unused. About half of the 9,154 vouchers issued went unused in the 2015-16 school year, according to a report from the public advocate’s office. The voucher system disadvantages poor neighborhoods the most, particularly those in far-reaching corners of the city that are more difficult for providers to access.
A 2017 class-action lawsuit brought by nonprofit Bronx Independent Living Services and two students with disabilities in the Bronx challenged the voucher system. The lawsuit argued that the education department was failing to provide appropriate related services and violated the law.
Last month — four years after the initial lawsuit — a judge authorized a settlement that applies to students in the Bronx who have Individualized Education Programs, or IEPs. The agreement does not remove the voucher program altogether, but it does include policies meant to reduce the city’s reliance on that system.
The education department must increase the number of occupational therapy supervisor positions in the Bronx from three to five, for example. It will also increase funding by 25% for a loan forgiveness program to attract university students studying to become related services providers to the education department. Hiring decisions must also be made earlier, ahead of the fall semester.
“The focus is on moving the hiring up earlier in the summer with the hope that this can allow the DOE to better plan their needs for the upcoming school year,” said Rebecca Serbin, staff attorney for Disability Rights Advocates, which served as the plaintiffs’ counsel in the lawsuit.
Other policies in the agreement are meant to make the voucher system work more efficiently for families in the Bronx. In some cases, students wait weeks to receive their vouchers, which in turn delays the start of their services. The settlement outlines detailed timelines for issuing vouchers. (In most cases, they are to be delivered within 16 days of when school starts.)
Schools are also required to appoint a non-school-based “related service authorization liaison” whose job is to support parents in using their vouchers or getting make-up services. The education department must also ensure the provider list is accurate and updated.
“It’s vitally important to our community that they are able to access the services they need when they need them,” said Brett Eisenberg, executive director of Bronx Independent Living Services, a nonprofit that served as a plaintiff in the case and works with students with disabilities. “This agreement really makes sure that happens.”
The settlement comes at a time when the education department has been struggling to provide adequate services to students with disabilities across the five boroughs. During the pandemic, staffing shortages and virtual learning meant thousands of students missed out on crucial services, such as physical and occupational therapy, that were difficult to administer virtually.
In an acknowledgment of those disruptions, city officials announced an intensive effort to help students with IEPs. All of those students, roughly 200,000, are eligible for special programming after school and on Saturdays.
A Saturday programming option is also laid out in the settlement agreement. Bronx students who are eligible for make-up related services can make use of “Saturday Sites,” which will offer occupational therapy and speech therapy. For all other make-up related services, the education department will make alternative arrangements.
In a statement, the education department recognized the settlement as progress for students with disabilities.
“It is critical that the needs of all students with disabilities are met, and we’re pleased to have reached this settlement through which we will invest in new programs, processes, and resources that will make it easier for families to get support,” education department spokesperson Katie O’Hanlon wrote in an email. “We look forward to the progress and real results students will experience as a result of the settlement.”
Still, some question whether the agreement goes far enough in addressing the problems with the voucher system.
Lori Podvesker, a policy expert at INCLUDEnyc, an advocacy group that focuses on special education, noted that to receive make-up services, families must request the education department, a process that puts the burden of accessing services back on parents.
“It’s outrageous that they are putting the onus back on families,” said Podvesker. She added that she’d like to see the obligations in the settlement document expanded beyond the Bronx to the other four boroughs.
“These issues are not just limited to the Bronx,” she said. “This is pervasive.”
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A program that makes New York City parents responsible for finding their own special education services — but that often leaves them with no services at all — is under legal attack.
The class-action lawsuit, filed Thursday in a federal district court, aims to reform the city’s process for ensuring that students with disabilities receive “related services” — which include physical therapy, certain medical services and counseling, among other therapies.
When the city’s education department is unable to offer those services itself, or through a contractor, parents are given a voucher that can be used to pay an outside provider. But that system puts the onus on families to find providers, and about half of the 9,164 vouchers issued during the 2015-16 school year went unused, according to a report issued earlier this month by the public advocate’s office.
The lawsuit centers on the Bronx, where the problem is particularly acute. In District 8, which includes Hunts Point, Throgs Neck and Soundview, 91 percent of the 129 vouchers issued last school year went unused — the highest rate anywhere in the city.
The city’s public advocate found that families face a number of barriers to using the vouchers: They often struggle to find providers in their neighborhoods, have difficulty arranging for transportation and getting reimbursed to send their children elsewhere, or simply can’t find providers who are responsive.
In part because of those challenges, an attorney who helped bring the lawsuit said the city can’t simply offer a voucher to fulfil its obligation to provide special education services.
“The DOE has to ensure that students actually get [services]” said Seth Packrone, a lawyer at Disability Rights Advocates, which contributed to the public advocate’s report. “They can’t just issue a voucher and then step away.”
The goal of the litigation is to force the education department to come up with a plan to ensure that students in the Bronx receive the services they have been guaranteed, Packrone said. It is not yet clear what that plan could entail or how it could affect other neighborhoods, which also have large numbers of unused vouchers.
The complaint says the city’s voucher program violates multiple federal laws that guarantee students with disabilities a free and appropriate public education. The plaintiffs in the case are two Bronx students and Bronx Independent Living Services, a nonprofit that works with students who have disabilities.
Education department spokeswoman Toya Holness wrote in a statement: “We are dedicated to meeting the needs of students with disabilities and in the small percentage of cases when we issue a related service authorization, we work with families to connect them with an appropriate provider in their area.”
She referred questions about the lawsuit to a law department spokesman, who said the city is reviewing the complaint.