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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x M.G. and V.M., on behalf of themselves : Civil Action No. 1:13-cv-04639-SAS individually and as next friends on behalf of : their child, Y.T.; M.W., on behalf of herself : FIFTH AMENDED COMPLAINT individually and as next friend on behalf of her : son, E.H.; A.D., on behalf of herself : individually and as next friend on behalf of her : son, D.D. and D.D.1; N.S., on behalf of himself : individually and as next friend on behalf of his : child, K.S.; E.H. 1, on behalf of herself : individually and as next friend on behalf of her : child, E.H. 2; E.E.G., on behalf of herself : individually and as next friend on behalf of her : son, Y.A.; A.G., on behalf of herself : individually and as next friend on behalf of her : sons, S.B. and K.B.; M.T., on behalf of herself : individually and as next friend on behalf of her : son, J.A.; Individually and on Behalf of Others : Similarly Situated, : : Plaintiffs, : : vs. : : NEW YORK CITY DEPARTMENT OF : EDUCATION; NEW YORK CITY BOARD : OF EDUCATION; RICHARD CARRANZA, : in his official capacity as Chancellor of the : New York City School District; NEW YORK : STATE EDUCATION DEPARTMENT; : INTERIM COMMISSIONER SHANNON : TAHOE, in her official capacity as : Commissioner of the New York State : Education Department, : : Defendants. : x Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 2 of 93
PRELIMINARY STATEMENT
1. This complaint is being filed by parents of children with disabilities who live in
New York City and who have or will have individualized education programs (“IEPs”) on behalf
of themselves and their children (“Plaintiffs”) pursuant to the Individuals with Disabilities
Education Improvement Act (the “IDEA”), 20 U.S.C. §1400, et seq., the Due Process Clause of
the Fourteenth Amendment of the U.S. Constitution, 42 U.S.C. §1983, Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. §794 (“Section 504”), the New York State Constitution,
New York State Education Law §§3202, 3203, 4401, et seq. (the “New York State Education
Laws”), and the regulations promulgated thereunder.
2. All Plaintiff-children satisfy the criteria for Autism Spectrum Disorder (“ASD”) under the Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”) (and its precursor) or are classified with Autism on their IEPs (collectively “Autism”).
3. Plaintiffs assert that Defendants New York City Department of Education, New
York City Board of Education and Richard Carranza, in his official capacity as Chancellor of the
New York City School District (“City Defendants”), and Defendants New York State Education
Department and Shannon Tahoe, in her official capacity as Interim Commissioner of the New York
State Education Department, (“State Defendants” and together with City Defendants,
“Defendants”), collectively, as well as individually, employ blanket practices, policies, and procedures and systemically fail to comply with federal and state law with respect to the provision of Autism Services (as defined below).
4. Despite the fast-growing numbers of school-age children with ASD in New York
City, Defendants have failed to ensure that the Plaintiff-children receive appropriate special education services to address their individual needs. Further, Defendants have failed to provide a
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legally adequate due process system to address complaints from parents of children with
disabilities.
5. Moreover, State Defendants have improperly adopted a blanket policy for students
approved for, or attending, state-approved non-public programs that limit the services that Plaintiff
children may receive without regard to their individual needs.
6. After the Complaint and First Amended Complaint were filed, the Court issued
three injunctions, one each on behalf of three Plaintiffs with ASD (Y.T., D.D., and E.H.), all of
whom required emergency relief. The Court also issued a ruling on a motion to dismiss, filed by
the City Defendants, finding that certain individual and systemic claims were excused from the
requirement of exhaustion of administrative remedies, and directing M.G., A.D., and M.W. to
either join the State Defendants or risk dismissal of certain claims. Thereafter, Plaintiffs filed a
Second Amended Complaint joining the State Defendants.
7. The Third Amended Complaint was filed, inter alia, to assert class action claims
with respect to certain of Defendants’ alleged systemic practices alleged by Plaintiffs.
8. The Court granted Plaintiffs leave to file the Fourth Amended Complaint to appeal,
in part, the decision of the State Review Officer that was issued on behalf of the Y.T. Plaintiffs in
April 2015.
9. The Fifth Amended Complaint is Plaintiffs’ first amendment following the Court’s
grant of class certification in January 2016.1
1 As of the date of the filing of the Fifth Amended Complaint, the State of New York is in a state of emergency due to COVID-19, and all schools have been temporarily closed. All references in the Fifth Amended Complaint to the Plaintiff children and to the systemic facts concerning the New York City school system are described as they existed in the normal course of events as of March 13, 2020, and not to temporary changes in services, policies or procedures as a result of COVID-19.
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PARTIES
10. Plaintiff Y.T. is a child with an ASD who has been classified as autistic pursuant to the IDEA. Y.T. is also an otherwise qualified individual with a disability under Section 504. At the time of the filing of the Fourth Amended Complaint, Plaintiffs M.G. and V.M. lived together with Y.T. (collectively the “Y.T. Plaintiffs”) in Queens, New York. They now live on Long Island.
11. Plaintiff A.D. is the parent of D.D. and D.D.1, two children with Autism who have been classified as autistic under the IDEA. D.D. and D.D.1 are also otherwise qualified individuals with disabilities under Section 504. Plaintiffs A.D., D.D. and D.D.1 (collectively the “D.D.
Plaintiffs”) live in Staten Island, New York.
12. Plaintiff M.W. is the parent of E.H., a child with Autism who has been classified as autistic under the IDEA. E.H. is also an otherwise qualified individual with a disability under
Section 504. Plaintiffs M.W. and E.H. (collectively the “E.H. Plaintiffs”) live in Manhattan, New
York.
13. Plaintiffs N.S. and S.A. are the parents of K.S., a deaf child with Autism who has been classified as autistic under the IDEA. K.S. is also an otherwise qualified individual with a disability under Section 504. Plaintiffs N.S., S.A., and K.S. (collectively the “K.S. Plaintiffs”) live in Queens, New York.
14. Plaintiff A.G. is the parent of S.B. and K.B., two children with Autism. They have been classified as autistic under the IDEA. S.B. and K.B. are also otherwise qualified individuals with disabilities under Section 504. Plaintiffs A.G., S.B., and K.B. (collectively the “S.B.
Plaintiffs”) live in Queens, New York.
15. Plaintiff E.H. 1 is the parent of E.H. 2, a child with Autism who has been classified as autistic under the IDEA. E.H. 2 is also an otherwise qualified individual with a disability under
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Section 504. Plaintiffs E.H. 1 and E.H. 2 (collectively the “E.H. 2 Plaintiffs”) live in the Bronx,
New York.
16. Plaintiff E.E.G. is the parent of Y.A., a child with Autism who has been classified
as autistic under the IDEA. Y.A. is also an otherwise qualified individual with a disability under
Section 504. Plaintiffs E.E.G. and Y.A. (collectively the “Y.A. Plaintiffs”) live in Brooklyn, New
York.
17. Plaintiff M.T. is the parent of J.A., a child with Autism who has been classified as
autistic under the IDEA. J.A. is also an otherwise qualified individual with a disability under
Section 504. Plaintiffs M.T. and J.A. (collectively the “J.A. Plaintiffs”) live in the Bronx, New
York.
18. Defendant RICHARD CARRANZA is the Chancellor of the New York City
School District (the “Chancellor”) and is entrusted with the specific powers and duties set forth in
N.Y. EDUC. LAW §2590-h. The Chancellor is the successor-in-interest to the previously-named defendants, Chancellor DENNIS WALCOTT and Chancellor CARMEN FARIÑA.
19. Defendant THE NEW YORK CITY BOARD OF EDUCATION (the “Board of
Education” or the “Board”) was, or continues to be, the official body responsible for developing policies with respect to the administration and operation of the public schools in the City of New
York.
20. Upon information and belief, defendant THE NEW YORK CITY DEPARTMENT
OF EDUCATION (“Department” or “DOE”) claims to be responsible for, and appears to have been delegated by the Chancellor, the responsibility of developing policies with respect to the administration and operation of the public schools in New York City, including programs and services for students with disabilities. The DOE is not a legally formed independent entity,
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although it appears in lawsuits and claims to be a “municipal” corporation. It is a recipient of federal financial assistance.
21. The City Defendants, individually and/or together, form the Local Educational
Agency (“LEA”) and are responsible for providing a Free Appropriate Public Education (a
“FAPE”) under the IDEA to all disabled children in New York City. The City Defendants are also individually and/or jointly responsible for delivering educational services to children in New York
City under New York State Education Laws.
22. New York State has chosen to receive funding under the IDEA and has established procedures for providing special educational services to children with disabilities, as set forth in
N.Y. Educ. Law §4401, et seq. and 8 N.Y.C.R.R. Part 200.
23. Defendant New York STATE EDUCATION DEPARTMENT (“NYSED”) is the
State Educational Agency (“SEA”) in New York State pursuant to the IDEA.
24. Defendant SHANNON TAHOE, INTERIM COMMISSIONER OF EDUCATION
(“Commissioner Elia”), is in charge of NYSED. Interim Commissioner Tahoe is named herein in her official capacity and as successor-in-interest of previously-named Defendants Commissioner
John King and Commissioner MaryEllen Elia.
25. All Defendants are recipients of federal assistance within the meaning of Section
504.
JURISDICTION AND VENUE
26. This Court has jurisdiction under 28 U.S.C. §1331, in that claims are asserted under the laws of the United States; under 28 U.S.C. §1343(a), in that claims are asserted under laws providing for the protection of civil rights; and under 20 U.S.C. §1415, 42 U.S.C. §1983, and 29
U.S.C. §794, et seq.
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27. This Court has jurisdiction over Plaintiffs’ pendent state law claims pursuant to
28 U.S.C. §1367. Plaintiffs also seek declaratory relief pursuant to 28 U.S.C. §§2201 and 2202.
28. Venue is proper under 28 U.S.C. §1391(b).
FACTS RELEVANT TO THE AUTISM SERVICES CLASS AND SUBCLASSES
The Number of Children with Autism Has Been Growing and Continues to Rise
29. According to the Centers for Disease Control in 2018, one in every fifty-nine children in the United States is diagnosed with ASD. Boys are four times more likely to be diagnosed with autism than girls – it is estimated that 1 in 37 boys and 1 in 151 girls have ASD.
30. According to State Defendants’ ASD Brochure (published on State Defendants’ website), ASD are “a group of developmental disabilities that can cause significant social, communication and behavioral challenges.”2
31. A post on Governor Cuomo’s website from 2011 explained that:
Autism spectrum disorders are a group of complex, pervasive developmental brain conditions that are often characterized by difficulties in social interaction, impairments in communication, and repetitive patterns of behavior. ASDs occur in approximately one in every 110 children in all racial, ethnic and social groups, and studies suggest that it is four times more likely to occur in boys than girls. Early detection of ASDs, when followed by the right interventions, can lead to better outcomes in functioning.
32. As described on State Defendants’ website, “[a]utism is a profound developmental disability that can severely impair a child’s abilities. Students with autism have unique abilities and needs which require special considerations in designing, implementing and evaluating their educational programs.”3
2 http://www.p12.nysed.gov/specialed/autism/ASDbrochure.htm
3 http://www.p12.nysed.gov/specialed/autism/
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33. According to State Defendants, ASD is “an urgent public health concern” and State
Defendants warn the public that “[a]cting early can make a real difference.”
34. According to State Defendants’ ASD Brochure:
(a) “Incidence of ASD in the United States has increased tremendously”;
(b) “The national Centers for Disease Control and Prevention estimate that an average of one in every 110 children in the United States has an ASD – that’s higher than the rate of childhood cancer, diabetes and AIDS combined”;
(c) “[E]arly intervention has been shown to greatly improve a child’s development”;
(d) “[M]any children do not receive a diagnosis until much older. Delaying diagnosis means a child may miss the opportunity to get help early”;
(e) “Many people with an ASD require lifelong supports and services to develop the skills they need to live successful, happy lives”;
(f) “Recent studies have estimated that the lifetime cost to care for one individual with an ASD is $3.2 million”; and
(g) “Average medical expenditures for individuals with ASD have been found to be 4.1 to 6.2 percent higher than that of individuals without an ASD.”
35. State Defendants’ ASD Brochure notes that a person with an ASD might have a combination of the following symptoms.
(a) “Not respond to their name by 12 months”;
(b) “Not point at objects to show interest by 14 months”;
(c) “Not play ‘pretend’ games (e.g., pretend to feed a doll) by 18 months”;
(d) “Have delayed speech and language skills”;
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(e) “Lose skills they once had (e.g., stop saying words they were using)”;
(f) “Repeat words or phrases over and over (echolalia)”;
(g) “Give unrelated answers to questions”;
(h) “Appear to be unaware when other people talk to them, but respond to other sounds”;
(i) “Have difficulty understanding, initiating and/or maintaining conversations”;
(j) “Have trouble expressing their needs using typical words or motions”;
(k) “Avoid eye contact and want to be alone”;
(l) “Have trouble understanding others’ feelings”;
(m) “Get upset by minor changes in routine”;
(n) “Become overly focused on very narrow interests, such as a specific topic or object”;
(o) “Flap their hands, rock their body, or spin in circles”;
(p) “Have unusual reactions to the way things sound, smell, taste, look or feel”; and
(q) “Repeat actions over and over again.”
36. Autism is one of the thirteen disabling conditions entitling a child to Special
Education Services under the IDEA. 20 U.S.C. §1401(3)(A)(i).
37. Autism is defined under the IDEA as:
Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with Autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.
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38. In New York, many children who are classified with Autism by Defendants are also diagnosed with an ASD under the Diagnostic and Statistical Manual of Mental Disorders (“DSM-
V”) (and its precursor).
39. According to data tracked by State Defendants, the number of school-aged children classified with Autism under the IDEA in New York State and New York City has grown significantly over the years.
40. Autism used to be a “low-incidence” disability in New York City, in that fewer children were classified with Autism compared to the other IDEA classifications. However, as of
June 2018, Autism represented the third largest group of children classified with IEPs in New York
City who are attending City Defendants’ schools.
41. Upon information and belief, there were more than 24,000 school-age children classified with Autism in the 2018-2019 school year in New York City.
42. According to The New York City Department of Education Local Law 27 of 2015
Annual Report on Special Education School Year 2017-2018 (the “2017-2018 Local Law
Report”), as of June 30, 2018, out of 196,959 school-age children who were “enrolled” in City
Defendants’ schools with an IEP, there were 18,341 school-age children classified with Autism in
New York City.
43. The number of autistic children in the 2017-2018 Local Law Report underestimates the number of children with IEPs with ASD in New York City, as it does not include children that were classified with Autism but were not enrolled in City Defendants’ schools. The 2017-2018
Local Report also fails to include children diagnosed with ASD, but who have been issued another classification on an IEP.
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44. In stark contrast, according to information on State Defendants’ website, as of
December 3, 2007, there were 17,599 school-aged children classified with Autism in the entire state, only 6,526 of which were classified by New York City.
45. By 2017, that number had rapidly grown, with State Defendants’ statistics reporting that there were 41,416 children classified with Autism in New York State. State Defendants’ website does not appear to have the classifications broken down by district for this year.
46. During this same time period, the New York City Department of Education Local
Law 27 of 2015 Annual Report on Special Education School Year 2016-2017 reported that as of
June 30, 2017, there were 16,745 school-age children classified with Autism who attended City
Defendants’ schools.
47. Thus, in 2017, at least 40% of the children who were classified with Autism on
IEPs in the state were classified by City Defendants.
Research-Based Instructional Services and Intervention Exist for Children with Autism
48. Defendants have known for years that Applied Behavior Analysis (“ABA”) is a critically important service for children with ASD and those classified with Autism.
49. In 1999, the New York State Department of Health (“DOH”), an agency of the New
York State, issued the “Clinical Practice Guideline, the Guideline Technical Report Autism and
Autism/Pervasive Developmental Disorders Assessment and Intervention for Young Children
(Age 0-3 Years) (the “1999 DOH Report” or “Clinical Guidelines”).
50. According to the 1999 DOH Report: “[i]t is recommended that principles of applied behavior analysis (ABA) and behavior intervention strategies be included as an important element of any intervention program for young children with autism.”
51. The 1999 DOH Report set forth “three basic elements of intensive behavioral and educational intervention programs” for children with autism, which include: “systematic use of - 10 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 12 of 93
behavioral teaching techniques and intervention procedures,” “intensive, direct instruction by the therapist, usually on a one-to-one basis,” and “extensive parent training and support so that parents can provide additional hours of intervention.”
52. According to the 1999 DOH Report, “intensive behavioral programs” should include “a minimum of approximately 20 hours per week of individualized behavioral intervention using ABA techniques (not including time spent by parents).”
53. In 2017, the DOH updated the Clinical Guidelines and issued the “New York State
Department of Health Clinical Practice Guideline on Assessment and Intervention Services for
Young Children (Age 0-3) with Autism Spectrum Disorders (ASD): 2017 Update Report of the
Recommendations (“2017 DOH Report”). The 2017 DOE Report stated “[ABA] is the most well- researched and validated general approach to treatment for ASD.”
54. The 2017 DOH Report was prepared by at least twenty-five experts including a
“Clinical Practice Guidelines Development Panel” and “Expert Reviewers and Consultants.” The team included doctors, Ph.Ds, licensed behavior analysts, speech pathologists, occupational therapists and parent members.
55. The 2017 DOH report reads, in part:
Prior to convening the panel to initiate their work, literature reviews were undertaken by clinical/research experts in ASD to review peer-reviewed, published scientific studies applicable to young children ages birth to three years of age in the areas of screening and diagnostic assessments for young children with possible ASD, and birth through five years of age for intervention methods, health assessments, and medical interventions and treatments. These exhaustive reviews were intended to provide members of the consensus panel with a current view of the status of the evidence to assist the panel in their work to update the CPG. In addition, the systematic review of therapies for children with ASD, ages birth to 12 years of age, prepared by the Vanderbilt Evidence-based Practice Center for the Agency for Healthcare Quality Review (citations omitted) was made available to the panel.
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56. The 2017 DOH Report notes further that “[b]ehavior analytic strategies were first found in the 1960’s to lead to effective learning and development for typical young children . . . as well as children with autism . . . and extended over time to addressing skill development and challenging behavior for school-aged children, adolescents, adults, and the full range of diagnostic conditions.”
57. The 2017 DOH Report notes, as well, that “[e]vidence continues to substantiate that interventions based on principles of ABA and child development and delivered in an intensive
(greater than or equal to 15 hours per week) and comprehensive (i.e., addressing numerous areas of functioning) approach can positively affect a subset of children with ASD . . . . Across intervention approaches, children receiving early intensive interventions based on principles of applied behavior analysis and child development demonstrate improvements in cognitive, language, adaptive, and ASD impairments compared with children receiving low-intensity interventions and eclectic non-ABA-based intervention approaches . . . .”
58. The 2017 DOH Report contains a range of best practices for assessment, implementation of intervention strategies as well as other important accommodations and modifications necessary for children with autism who have co-occurring conditions.
The Autism Mandate Shows the Importance of ABA Therapy to Children with Autism
59. In 2011, New York State adopted the “Autism Mandate” codified in N.Y. Ins. Law
§§ 3216(i)(25), 3221(l)(17), and 4303(ee).
60. On his website, Governor Cuomo is quoted as saying the Autism Mandate “will help thousands of families across New York who struggle to obtain proper care for loved ones affected by autism spectrum disorder” and “[w]hen it comes to autism, early diagnosis and treatment is essential, and it is inexcusable that financial constraints would stand in the way of a
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brighter future for those affected by this disorder. This bill opens the door to families seeking earlier treatment and better results.”
61. While the Autism Mandate was a great start, it only applied to families who have private insurance and excluded families who could not afford that insurance or would be ineligible to access it, for various reasons.
62. Governor Cuomo recognized that prior to the mandate “[f]amilies had little choice but to pay out-of-pocket for the necessary treatment, with costs sometimes more than $50,000 per year. Many families cannot afford to pay for treatment without a severe economic hardship and may have to forgo effective early treatment of ASD for their children.”
63. The Autism Mandate requires “that insurance policies and contracts that provide coverage for physician services, medical, or major medical or similar comprehensive-type coverage must also provide coverage for the screening, diagnosis, and treatment of [ASD].”
64. The Autism Mandate, inter alia, covered a certain number of hours of ABA per year outside of the services provided by a school district.
65. Under the Autism Mandate, ABA is defined as “the design, implementation, and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.”
N.Y. Ins. Law §§ 4303(ee)(3)(B), 3216(i)(25)(C)(ii), 3221(l)(17)(C)(ii).
66. Under the Autism Mandate, ABA is considered to be “a type of behavioral health treatment,” for which insurance coverage is mandated when it is “provided or supervised by a behavior analyst certified pursuant to the Behavior Analyst Certification Board (‘BACB’), a national professional credentialing body.”
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67. Pursuant to the Autism Mandate, the New York State Superintendent of the
Insurance Board, in consultation with the Commissioners of Health and Education, was directed to promulgate “regulations setting forth standards of professionalism, supervision, and relevant experience for individuals who provide behavioral health treatment under the supervision of a certified behavior analyst.”
68. Under the Autism Mandate, private insurance companies “shall be subject to a maximum benefit of six hundred eighty hours of treatment per policy or calendar year per covered individual.”
69. Under the Autism Mandate, until 2019, “behavioral health treatment” is defined until January 2020 as the following:
counseling and treatment programs, when provided by a licensed provider, and applied behavior analysis, when provided or supervised by a behavior analyst certified pursuant to the behavior analyst certification board, that are necessary to develop, maintain, or restore, to the maximum extent practicable, the functioning of an individual. Individuals that provide behavioral health treatment under the supervision of a certified behavior analyst pursuant to this paragraph shall be subject to standards of professionalism, supervision and relevant experience pursuant to regulations promulgated by the superintendent in consultation with the commissioners of health and education.
70. The behavior analyst certification board (“BACB”), “is a nonprofit 501(c)(3) corporation established in 1998 to meet professional credentialing needs identified by behavior analysts, governments, and consumers of behavior analysis services.”
71. The BACB operates credentialing programs for the following national credentials:
(i) Board Certified Behavior Analyst (“BCBA”); (ii) Board Certified Assistant Behavior Analyst
(“BCABA”); and (iii) Registered Behavior Technician (“RBT”).
72. Until January 2020, the insurance law permitted insurance-funded ABA services to be provided by BCBAs, BCABAs, RBTs, as well as services “supervised” by a BCBA or BCABA.
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73. The Autism Mandate law was recently changed to define “behavioral health treatment” to mean “counseling and treatment programs, when provided by a licensed provider, and applied behavior analysis, when provided by a person licensed, certified or otherwise authorized to provide applied behavior analysis, that are necessary to develop, maintain, or restore, to the maximum extent practicable, the functioning of an individual.”
74. Upon information and belief, following this change, as of January 2020, all ABA funded under the ABA Mandate will have to be delivered by individuals who satisfy Article 167 of Title VIII of the Education Law (the “ABA License Law”).
The New York State ABA License Law
75. Several years after the Autism Mandate was adopted, the New York State
Education Law was amended by adopting the ABA License Law, which created a new credentialing scheme for the provision of ABA.
76. Under the ABA License Law:
The practice of applied behavior analysis by a ‘licensed behavior analyst’ shall mean the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior, pursuant to a diagnosis and prescription or order from a person who is licensed or otherwise authorized to provide such diagnosis and prescription or ordering services pursuant to a profession enumerated in this title, for the purpose of providing behavioral health treatment for persons with autism and autism spectrum disorders and related disorders.
77. The law in and of itself, and in conjunction with the promulgation of regulations and its implementation by State Defendants, violates the IDEA.
78. The ABA License Law added to the shortage of ABA providers that are available to serve the Autism Services Class members and subclass members.
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79. The ABA License Law restricts individuals from providing ABA without a license
outside of certain exempt settings and to certain groups of children.
80. Insurance-funded ABA services are not exempt.
81. In addition, ABA services obtained by parents of children with disabilities who
receive ABA through litigated orders or settlement following the initiation of a litigation process
called a due process hearing, are not exempt.
82. The ABA License Law creates no credentials at all for individuals who provide
“ABA” in public or private schools or who are employed by a school district (“Exempt Settings”).
83. Yet, in non-exempt settings, such as the ABA services ordered by hearing officers
or funded by insurance, the ABA Licensure Law requires providers to have extensive credentials,
far beyond those required by the BACB, the national board.
84. Further, certified special education teachers and speech therapists cannot provide
ABA unless they are also licensed behavior analysts (“LBAs”), even under the supervision of a
BCBA or LBA.
85. The ABA License Law created two credentials: an LBA and a “certified behavior
analyst assistant” (“CBAA”). See N.Y. Educ. Law §8803.4
86. Under the ABA License Law, a CBAA must be supervised by an LBA. However, an LBA may not supervise more than six CBAAs.
87. The ABA law also allows “limited permits” for one year to certain applicants who
“meet[] all qualifications for licensure, except the examination and/or experience requirements, in
4 The ABA License Law became effective on July 1, 2014. However, for the first two years following the adoption of the ABA License Law, certain individuals holding the BCBA and BCABA credentials were grandfathered in as LBAs. Further, less than forty RBTs were grandfathered in as CBAAs. However, after the grandfather period ended, the requirements for LBA and CBAA credentials became extremely stringent.
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accordance with regulations promulgated therefor.” N.Y. Educ. Law § 8806 (1). However, a limited permit holder “shall practice only under supervision as determined in accordance with the commissioners regulations.” N.Y. Educ. Law § 8806 (4).
88. Individuals who do not hold an LBA certificate may not create, modify or terminate an ABA plan. N.Y. Educ. Law §8807 (5).
89. Under the ABA License Law, a small number of categories of providers are exempt from the licensure requirement.
90. First, any individual may provide ABA “in the course of such employment” without complying with any licensure requirements, if such person is employed by a government agency, a private or public school, a preschool or is an employee or contractor for early intervention. N.Y.
Educ. Law §8807(2)(a), §8807(3).
91. Second, no license is needed for a person to gather and collect data, but that person must be supervised by an LBA. N.Y. Educ. Law § 8807 (6)(b).
92. Third, a student attempting to obtain a credential may provide ABA without an
LBA or CBAA, although the student must be supervised by an LBA. N.Y. Educ. Law §8807
(2)(a), § 8807 (3).
93. Fourth, “a license under this article shall not be required for persons to participate as members of a multi-disciplinary team to implement an ABA plan” provided that the team contains an LBA and that the team members’ work is “consistent with the scope of practice for each team member licensed or authorized” by law. N.Y. Educ. Law §8807 (5).
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94. Finally, the law does not apply to behavioral health treatments, other than ABA,
that are provided to persons with ASD. N.Y. Educ. Law §8807 (5).5
95. The ABA License Law is inconsistent with the manner in which ABA is supposed
to be delivered pursuant to standard clinical guidelines and creates a bizarre dual system where
exempt setting providers appear to need no credentials or training, whereas non exempt setting behavior analysts are required to jump through such an extensive set of hoops, and are subject to so many restrictions, that there is a significant shortage of available therapists to work in non exempt settings.
96. Coupled with new amendments to the ABA Insurance Law, which will restrict insurance-funded ABA to individuals who satisfy the ABA License Law, the situation is about to become a major crisis.
97. Parents of class members who were at least eligible for ABA services through the
ABA Mandate will now no longer be able to receive those services, as Governor Cuomo signed changes into the law that will prevent insurance-funded providers who previously delivered insurance-funded ABA from being able to continue to serve children.
98. The ABA License Law directs the Defendant Commissioner to “promulgate regulations to further describe the qualifications required to become licensed or certified, as well as to set standards for the supervision of CBAAs by LBAs.”
99. State Defendants promulgated regulations and certain rules following the enactment of the law, which have caused and/or exacerbated shortages.
5 Upon information and belief, the law and State Defendants’ discretionary policies and actions are exacerbating the shortage situation that was started by the adoption of the statute.
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100. State Defendants’ regulations are not consistent with the general clinical practice guidelines for ABA and create barriers and disincentives for qualified ABA professionals to gain credentials in the state.
101. State Defendants operate an office charged with reviewing and processing applications for individuals to receive ABA credentials. This office is significantly understaffed and there are unreasonable delays in the approval process.
The New Changes to the Insurance Law will Exacerbate Shortages
102. According to a New York State Insurance Circular Letter No. 6 (2014) issued by the Director of the Health Bureau of the New York State Department of Financial Services
(“Circular 6”), in 2014, the Director realized that the Autism Mandate law “uses different terminology and recognizes a different credentialing body for providers of ABA than does” the
Autism License Law.
103. Circular 6 found these two laws to be in conflict and concluded that the ABA
Licensure Law trumps the “Autism Mandate” as it was enacted later in time.
104. Circular 6 also explained that insurers may only cover “ABA services provided in
New York by persons acting pursuant to Education Law Title VIII and any regulations promulgated thereunder, as well as services provided by individuals that are necessary to the provision of ABA and not inconsistent with Article 167 and its implementing regulations.”
105. However, as alleged herein, the Insurance Law was only recently amended to reflect this change.
106. Upon information and belief, however, all (or almost all) of the insurance funded
ABA services delivered in New York (and across the state) is not delivered by individuals who satisfy the credentialing requirement of the ABA License Law.
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107. Upon information and belief, virtually none of the insurance-funded agencies use
LBAs, CBAAs or limited permit holders to implement and deliver ABA services to children.
Instead, BCBAs and BCABAs supervise the delivery of services by RBTs, aides, or teachers.
108. Notwithstanding the above, insurance companies have been continuing to fund and pay for BCBAs, RBTs and other aides to deliver ABA services, for over six years.
109. Upon information and belief, the overwhelming majority of the agencies and individuals providing Autism Services to the Autism Services Subclasses do not use LBAs,
CBAAs or limited permit holders to implement and deliver ABA services to children because there are not enough of these individuals to provide the services.
110. Moreover, upon information and belief, State Defendants have refused to clarify the extent to which an individual who does not possess an LBA, CBAA, or a limited permit can provide direct 1:1 services to a child with Autism in the course of implementing an ABA plan.
111. Upon information and belief, confusion reigns across the state in every non-exempt area.
112. State Defendants have refused to clarify for the public, providers and parents whether RBTs, aides, paraprofessionals or special education teachers may provide ABA to children in non-exempt settings.
113. Upon information and belief, State Defendants’ interpretation, implementation and enforcement of the ABA License Law would prevent the use of such individuals, despite the fact that there are nowhere near the number of LBAs and CBAAs to deliver services to all of the children who are entitled to those services.
114. It is both unreasonable and irrational for State Defendants to interpret the ABA
License Law to require no qualifications for individuals who work in public and private schools
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and or who are employed by City Defendants to have no qualifications mandated for ABA,
mandating that individuals who are either ordered to have such services by an administrative
hearing officer or entitled to receive them via insurance would need more credentials than any
state or national board requires.
115. It is both unreasonable and irrational for State Defendants to interpret the ABA
License Law to require the provision of ABA in such a way so as to be inconsistent with the clinical
standard for the practice of ABA.
The ABA License Law Contemplates that Schools and Districts May Provide ABA
116. There is an extreme shortage of LBAs and CBAAs in New York City and the
surrounding areas, relative to the children who are already entitled to receive ABA services
through impartial hearing orders, resolution agreements and settlement agreements.
117. This is particularly true because many professionals are already serving children
through early intervention or insurance mandates or are working outside of the City.
118. According to State Defendants’ website, as of January 1, 2020, there are only
twenty-two CBAAs in New York State, and only four in New York City: one registered in the
Bronx, two registered in Manhattan and one registered in Brooklyn.
119. According to State Defendants’ website, as of January 1, 2020, there are 513 LBAs registered in the five boroughs: twelve in the Bronx, forty in Staten Island, one hundred seven in
Manhattan, one hundred ninety-eight in Brooklyn, and one hundred fifty-six in Queens. State
Defendants, however, have not published a registry or directory of licensed providers.
120. There are also an insufficient number of programs available to prepare individuals for the CBAA credential.
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Defendants Have Denied and Are Denying Children with Autism Critical Services
121. Despite the rapid growth in children with Autism in New York who are entitled to
an IEP, Defendants have failed to ensure that the Special Education Services and Programs have
evolved consistent with the growing numbers of children, as well as the latest research and
interventions.
122. Defendants do not offer children with Autism the full range of educational services,
support, and accommodations that are contemplated by the IDEA.
123. Children with autism who require one or more of these services to receive a FAPE
under the IDEA are unable to obtain those services through the IEP process in New York City
unless their parents “Engage in Litigation”:6 (a) 1:1 instruction for at least part of the day; (b)
ABA; and (c) after-school or home-based services (for students attending a school-day program)
(collectively “Autism Services”).
124. The City Defendants’ IEP teams are constrained by what is available on the City
Defendants’ limited menu of services, or at particular schools, and make program and placement decisions based upon what is available, not the individual needs of the child.
125. Thus, the City Defendants have illegally stripped IEP teams of their authority under the IDEA and have restricted their ability to make individualized decisions about Special
Education Services.
126. Specifically, City Defendants regularly apply blanket policies, procedures, and practices to the formulation of IEPs and placement recommendations for children with Autism
6 “Engaging in Litigation” or “Litigation” is individually defined as filing a Ten Day Notice, filing an impartial hearing, requesting mediation, filing an appeal of a hearing decision or filing in court.
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without regard for student need. In essence, Defendants restrict the ability of IEP teams to recommend Autism on an autistic child’s IEP (“Autism Services Policies and Practices”).
127. By way of background, the Early Intervention services system provides for the delivery of ABA services to children with autism from birth to age three.
128. These services are called “Special Instruction.”
129. Following the termination of eligibility from Early Intervention, children with autism transition into the City Defendants’ special education program through the Committee on
Preschool Special Education (“CPSE”).
130. When children with Autism transition from Early Intervention to the jurisdiction of the CPSE, City Defendants automatically terminate the ABA services (i.e. “Special instruction”) of every single child with autism.
131. In other words, the continuum of special education services (i.e., the menu of services) adopted by Defendants for preschool-age children does not include Special Education or
ABA, ABA assessments, development of ABA plans or ABA supervision.
132. Children who receive CPSE services are eligible for individualized, one-on-one special education itinerant teacher instruction in only two circumstances: (a) the child has to attend a regular preschool program; or (b) the child receives services at home. As a result, many children with autism lose their 1:1 ABA services when they transition to the CPSE.
133. Defendants have “Special Education Itinerant Teacher” (“SEIT”) available, for children in the CPSE, but SEIT teachers are not necessarily trained or certified to provide ABA.
SEIT teachers do not generally have BCBA, BCBABA or RBT credentials. However, SEIT teachers provide 1:1 instruction.
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134. Then, as the child gets older, he or she transitions from the CPSE to the Committee on Special Education (“CSE”) in the September of the calendar year in which the child turns five.
135. According to State Defendants’ website, State Defendants’ continuum of special education services for school-age students with disabilities includes the following:
(a) consultant teacher services (direct and/or indirect);
(b) resource room services;
(c) related services;
(d) integrated co-teaching services; and
(e) special class.
136. According to State Defendants’ policies, related services include, but are not limited to speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, evaluative and diagnostic medical services to determine if the student has a medically related disability, parent counseling and training, school health services, school nurse services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students.
137. According to State Defendants’ website, additional special education services that may be recommended for students on IEPs include, “Transition Services,” “Transitional support services,” “Travel training,” “Adapted physical education,” “Twelve-month special service and/or program,” and “Special transportation.”
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138. According to State Defendants’ policies, State Defendants direct LEAs, such as
City Defendants, “[w]hen recommending special education services in a student’s IEP, the
Committee on Special Education (CSE) must use the special education services terms as used in
the regulations, but may add clarifying terms that identify a district-specific program as long as
such program meets the specifics of the regulations for that service.”
139. According to New York State Regulations of the Commissioner of Education,
before City Defendants can “implement an innovative program for students with disabilities that
varies from the regulatory continuum of service options,” they have to apply to the Commissioner
for “a waiver from the continuum of services options,” called an “Innovative Waiver.”
140. The standards for an Innovative Waiver are set forth in §200.6(l) of the Regulations
of the Commissioner of Education.
141. The continuum of special education services (i.e., the menu of services) adopted by
Defendants for school-age children does not include: (a) ABA; (b) ABA assessments; (c)
development of ABA plans; (d) ABA supervision; (e) home-based special education or related
services unless a child is unable to attend school due to a medical reason; (f) 1:1 instruction;7 and
(g) after-school special education and related services.
142. IEP teams in New York City do not recommend ABA services, after school services, home-based services, or 1:1 instruction8 on IEPs unless those services are placed on the
7 With exceptions for children who are eligible for Consultant Teacher Services in the general education setting (State Defendants granted City Defendants a waiver from offering Consultant Teacher Services) or are unable to attend school due to a medical reason.
8 One exception to this is if the child is in need of home instruction pursuant to Chancellor’s Regulation A-170.
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IEP following a due process hearing, an appeal, resolution, mediation or an action in court
(collectively defined as “Litigation”).
143. City Defendants have only limited options on their public school program “menu” for autistic children who are considered to be significantly impaired and/or who require intensive behavioral and instructional support to learn functional, communication and academic skills that they can retain across settings and over a period of years.
144. In 2001, the City Defendants implemented the following “New Continuum” for school-aged students with disabilities, offering the following categories of placements, ranging from the “least” to the “most” restrictive environments for students with special needs:
(a) General education in a community school (i.e., a regular neighborhood public school);
(b) General education with related services;
(c) General education with “special education teacher support” services
(“SETSS”) (formerly “resource room”);
(d) Collaborative Team Teaching (“CTT”) in a community school;
(e) Special education class in a community school;
(f) Special education class in a “specialized school” in District 75;
(g) State-Approved Private Day programs (“NPS”);
(h) State-Approved Private Residential program; and
(i) Home and Hospital Instruction.
145. City Defendants’ continuum also includes related services. For related services,
City Defendants offer, inter alia, speech and language therapy, occupational therapy, physical
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therapy, counseling services, parent counseling and training, assistive technology services, hearing education services, vision education services and three types of paraprofessionals.
146. City Defendants have “classroom paraprofessionals” who are staffed in classrooms as well as a handful of specific types of one-on-one paraprofessionals.
147. City Defendants offer a one-on-one paraprofessional for health (which includes toileting, safety, mobility), behavior, or language (for a child whose language is other than
English).
148. City Defendants’ paraprofessionals who are assigned to work with children with
Autism are not required to have training in ABA.
149. Teachers assigned to classrooms in which children with autism are educated, are not required to have training in ABA.
150. While Defendants operate a Home Instruction program that offers 1:1 instruction, the Home Instruction program is a temporary program of 1:1 instruction for children with medical or psychiatric disabilities who are unable to attend school for any part of the school day and whose parents either stay home or can afford a chaperone.
151. In New York City, City Defendants operate public schools in community school districts, as well as District 75 schools and programs.
152. In general, in City Defendants’ public community schools, City Defendants offer special education classroom ratios of 12:1 or 12:1:1 in elementary and middle schools and 15:1 in regular public high schools.
153. According to the City Defendants’ website: “District 75 provides citywide educational, vocational, and behavior support programs for students who are on the Autism
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spectrum, have significant cognitive delays, are severely emotionally challenged, sensory impaired and/or multiply disabled.”
154. The majority of students educated in District 75 program are classified with
“emotional disturbance,” “Autism,” “intellectual disability” and/or “multiple disabilities.”
155. District 75 offers a limited “menu” of classes and programs in which children are generally placed by their classification:
(a) 6:1:1 classes, which are primarily comprised of children classified or diagnosed with Autism;9
(b) 8:1:1 classes may be for children who are intellectually disabled, autistic, or “emotionally disturbed”;
(c) 12:1:1 classes are for children who are intellectually disabled and/or emotionally disturbed, although there are some children with Autism in these classes;
(d) 12:1:4 classes are for children classified as “multiply handicapped”;
(e) District 75 also operates an inclusion program pursuant to which students are placed in general education programs but receive “SETSS” and 2:1 paraprofessional from
District 75 staff.
156. A significant number of the children classified with Autism are recommended for the 6:1:1 program. Many students with Autism are also recommended for the 8:1:1 class.
157. The smallest classroom ratio that City Defendants offered children with Autism at the time of the Fourth Amended Complaint was a classroom of six children to one teacher and either one classroom paraprofessional (if in public school) or two classroom paraprofessionals (if a private school).
9 A 6:1:1 ratio means six children, one teacher, and one paraprofessional.
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158. Over the past several years, as the result of a collaboration with the New England
Center for Children, the City Defendants have been developing a small number of specialized programs for children with ASD who are high functioning and who do not have behavioral issues.
159. According to the City Defendants’ website: “[t]he ASD Nest program is a program for high functioning students [ASDs] that takes place in an integrated co-teaching class in a community school.” There are very few available seats in the Horizon and ASD Nest programs, compared to the number of children who would benefit from being in these types of programs.
160. Upon information and belief, following this lawsuit, Defendants have piloted new
ABA-VB classrooms, but have failed, to date, to provide any discovery about these programs to
Plaintiffs.
161. Neither Defendant has taken steps to ensure that there are private programs and schools that provide Autism Services to children with IEPs in New York City.
162. State Defendants are responsible for approving New York State approved non- public schools (“NPS Program”) for children who are not able to be served in City Defendants’ public school programs.
163. State Defendants limit admission of children with autism in NPS Programs by restricting admission to each program based upon the State Defendants’ authorization that the NPS
Program is permitted to accept children with particular classifications.
164. City Defendants’ IEP teams are permitted to recommend that children are deferred to their Central Based Support Team (“CBST”) for placement in a New York State approved NPS
Program but they are not permitted to recommend an ABA-based program on an IEP.
Additionally, City Defendants cannot recommend any of the Autism Services on the IEPs of children recommended for NPS Programs.
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165. There are only a handful of NPS Programs that accept children classified as autistic.
Further, there are no schools or programs for children who have “dual diagnoses,” such as a child who is autistic and also deaf, or a child who is deaf and also blind.
166. Additionally, only a small number of NPS Programs use ABA, or other research- based instructional strategies.
167. No NPS Program offers after-school or home-based ABA services. Nor do they offer 1:1 instruction as part of the approved program ratio. The smallest classroom ratio offered by NPS Programs for children with Autism is a 6:1:2 classroom ratio.
168. There are only a small number of NPS Programs approved for children with ASD.
There is only one NPS Program in Staten Island, one in the Bronx, two in Manhattan (although only one that serves children over age 12), four in Queens, seven in Brooklyn, and one on
Roosevelt Island.
169. Some children with ASD from New York City travel to schools in Westchester or
Long Island, although there are very few options there as well.
170. The blanket policies and practices concerning Autism Services are also applied to
IEPs for children who are deferred to CBST.
171. In general, City Defendants’ IEP teams are not allowed to make “dual” recommendations for home-based or after school services if a child is already attending a school day program.
172. Further, when City Defendants hold IEP meetings for children with Autism who are entering the jurisdiction of the Committees on Special Education (called “Turning Five”), the
IEP teams automatically terminate 1:1 special education teacher support services and home services that the children may have had through the Committee on Preschool Special Education.
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173. Despite the growing numbers of children with Autism and the fact that the City
Defendants and the NPS programs have often communicated to the State Defendants that there is
a need to expand those programs, the State Defendants have generally refused to do so.
LITIGATION IS GENERALLY NECESSARY TO OBTAIN AUTISM SERVICES
174. In general, without a due process hearing, IEP teams cannot (and do not)
recommend any of the Autism Services.
175. Students requiring Autism Services or any other individualized modifications must
seek those services through administrative litigation.
176. The City Defendants apply these blanket policies and practices even to Plaintiffs
who have obtained Autism Services through Litigation.
177. When a parent wins or settles a hearing for Autism Services, they must engage in
constant Litigation to keep those services in place because at the end of each school year, on July
1st, the City Defendants refuse to provide funding for Autism Services.
178. Under City Defendants’ policies and practices, on July 1st of each year, they unilaterally terminate funding for the last agreed upon program and placement ordered by an impartial hearing officer even when the parent still has a hearing pending.
179. When City Defendants hold an IEP meeting for a parent of a student who has won or settled for Autism Services, unless there are orders in place directing City Defendants to place
Autism Services on an IEP, the IEP team will terminate and/or refuse to place the services on an
IEP, regardless of whether the child made progress in the prior year, or requires the Autism
Services to obtain an educational benefit.
180. City Defendants do not generally evaluate, observe and/or consider the impact that the Autism Services had on the student’s progress prior to making a decision not to continue the services. - 31 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 33 of 93
181. Under City Defendants’ policies and practices, they unilaterally terminate funding
for the last agreed upon program and placement ordered by an impartial hearing officer once that
order expires even if the Defendants fail to issue an IEP or placement for the next school year,
forcing all parents to incur legal fees and be perpetually engaged in litigation.
182. Given Defendants’ blanket policies, parents of children with Autism who need
Autism Services can never escape the impartial hearing merry-go-round and are in a constant state
of Litigation.
DEFENDANTS HAVE FAILED TO ENSURE SUFFICIENT RESOURCES TO DELIVER AUTISM SERVICES FOR CLASS AND SUBCLASS MEMBERS
183. There is a shortage of ABA providers available to deliver services to the Autism
Services Class and the Due Process Autism subclass under the ABA License Law, as interpreted by State Defendants.
184. By adoption and implementation of regulations, policies and practices, State
Defendants have caused a shortage of licensed providers who can deliver ABA to class and subclass members.
185. When, as here, class and subclass members are entitled to Autism Services, but
Defendants have failed to deliver appropriate services due to a shortage of providers who have been licensed or certified by the State Defendants, strict adherence to the ABA License Law’s requirement that qualified (i.e., licensed or certified) personnel administer ABA Services places an unreasonable burden on a Plaintiff parents’ ability to obtain for Plaintiff children the ABA services of providers who are either (a) proficient, but not licensed or certified; or (b) able to deliver
ABA in accordance with the BACB or standard clinical practice.
186. The promise of the IDEA is being defeated by strict adherence to the ABA License
Law.
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187. Even if City Defendants changed their policies and procedures to permit or authorize IEP teams to recommend Autism Services, City Defendants do not have the resources to provide appropriate Autism Services to class and subclass members.
188. By adoption and implementation of regulations, policies and practices, City
Defendants have caused a shortage of qualified providers who can deliver ABA to class and subclass members.
189. City Defendants do not have the capacity to diagnose children with ASD, as they do not have sufficient staff available who are trained to conduct ABA assessments for all children who require such assessments, nor do they have published criteria for conducting assessments for and/or recommending Autism Services.
190. City Defendants do not currently assess children for the need for any of the Autism
Services, and therefore, do not possess sufficient staff with expertise to assess children with autism to determine whether they have Autism Services.
191. City Defendants do not permit their staff to assess children in the communities or at home, with the exception of the limited travel training program.
192. City Defendants do not have adequately trained staff necessary to deliver Autism
Services to all of the children who require them for a FAPE, or as per a due process hearing or settlement.
193. In addition, union contracts prescribe the working hours and payment for City
Defendants’ employees.
194. Outside of the Home Instruction program, City Defendants’ teachers and related service providers cannot be required to deliver services to children and parents in their homes.
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195. Due to the fact that Autism Services are not part of the New York State Continuum,
there are no funding streams for City Defendants to access to support the development of Autism
Services in New York City. Further, City Defendants are not able to bill public or private insurance
for the provision of Autism Services for school-age children.
196. The ABA Law and regulations impose unreasonable, arbitrary and clinically
inappropriate restrictions on the provision of ABA services to children in the Autism Subclass,
without requiring any qualifications for individuals to deliver ABA services to children in the
overall Autism Services Class.
197. The ABA Law, as written, enables City Defendants to offer ABA by staff who are
not appropriately trained, qualified or experienced in the provision of ABA.
DEFENDANTS APPLY BLANKET POLICIES AND PRACTICES TO CHILDREN WHO NEED PRIVATE SCHOOL PROGRAMS
198. The IDEA permits school districts to place disabled children in NPS Programs instead of public schools.
199. Children attending NPS Programs are nonetheless entitled to “all the rights [they] would have if” attending a public school. City Defendants remain responsible for providing a
FAPE to students who are New York City residents who attend NPS Programs.
200. In order for the City Defendants to fund a student’s placement in an NPS Program, an IEP team must first conclude that the City Defendants do not have the capacity to offer an appropriate public school program.
201. New York law offers four types of NPS Programs for school-age children: (1)
“private 853 schools” run by private agencies; (2) “Special Act School Districts” for “students who reside in child care institutions”; (3) privately-operated “State supported schools”; and (4)
“State-operated schools” for visually-and hearing-impaired students.
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202. According to State Defendants’ former Assistant Commissioner for the Office of
Special Education, James DeLorenzo, as of September 30, 2015, State Defendants had
“approximately 121 in-state private schools, 10 Special Act School Districts, and 12 State- supported schools approved to provide special education to New York State students with disabilities, ages 5-21, who, as determined by the student’s CSE, cannot be appropriately educated in a public school program, (i.e., the student’s home school, a neighboring district, or a board of cooperative educational services program). These include residential and day schools.”
203. For most NPS Programs, the City Defendants’ procedures call for IEP teams to
“defer” a decision to the City Defendants’ CBSTs to “approve” funding in an NPS Program.
204. Students can also gain admittance to certain NPS Programs (“Section 4201” schools) if they are recommended by IEP teams and approved by a senior administrator.
205. In 2012, in the course of conducting an investigation into a complaint relating to one of the NPS Programs, State Defendants claim to have first discovered the circumstances that led to the allegations of the NPS Class.
206. The NYC Regional Coordinator, charged with oversight and monitoring of public and private special education programs in New York City, allegedly found out that, in addition to funding children to attend the NPS Programs, City Defendants had a “long-standing practice” of funding “Additional NPS Services” – i.e., supplementing services at NPS Programs for children whose needs could not be met by all of the services offered by the particular NPS Program that the child was attending.
207. At this time, State Defendants also “discovered” that the practice of City
Defendants’ agreement to fund and/or provide these services directly to children was
“widespread.”
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208. Allegedly, following this “discovery,” on July 2, 2012, the State Defendants issued a directive, by letter to NPS Programs, advising them that NPS students would no longer be able to receive special education and related services unless those services were offered by or available directly through the particular NPS Program the child was or would be attending (the “NPS
Directive”).
209. Upon information and belief, the motivation behind the State Defendants’ NPS
Directive was based upon financial and administrative concerns. The impetus for this directive was that City Defendants were funding additional special education, related services and supplementary aides and services that State Defendants deemed to be in excess of pre-approved rates allocated to each NPS Program.
210. In the July 2012 Letter, State Defendants expressed concern that City Defendants were funding Additional Services that they deemed to be in excess of the pre-approved funding that State Defendants had allocated to each NPS Program for the education of disabled children.
211. State Defendants advised the NPS Programs that the “costs” associated with
Additional Services are the NPS Programs’ responsibility because State Defendants had allocated a “tuition rate” to each of the NPS Programs that was “supposed to cover all of the expenses that are needed to implement IEP in the program.”
212. At the time, NPS Programs serving disabled children in New York City were relying on City Defendants to fund and/or provide related services to students enrolled in NPS
Programs.
213. In addition on July 27, 2012, Assistant Commissioner DeLorenzo, sent a letter to
Corrine Rello-Anselmi, the Defendant, DOE’s, Deputy Chancellor for the Division of Students with Disabilities and English Language Learners advising City Defendants of the NPS Directive,
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confirming a discussion between high-ranking officials and noting that City Defendants had agreed to a “transition process” for phasing out Additional Services during the 2012-2013 school year.
214. Subsequent letters were sent to the NPS Programs and copied to City Defendants in 2012 and 2013 expanding and clarifying the parameters of the NPS Directive.
215. The State Defendants’ NPS Directive suggests that the City Defendants can locate other appropriate programs for children who are referred back to their districts. Yet, the State
Defendants are aware that there are very few, if any, appropriate alternatives.
216. State Defendants also attempted to interfere with the discretion of impartial hearing officers (“IHOs”) who might preside over cases of parents challenging the termination of services pursuant to the NPS Directive, by advising them of this funding restriction.
217. State Defendants interpret their own regulations to require that any child attending an NPS Program receive all of their special education and related services within the four corners of an “instructional day,” on location, at the particular school, regardless of individual needs.
218. Moreover, to the extent that an NPS Program cannot provide all of the services a child requires during the school day, then, according to State Defendants, the program is no longer an appropriate provider.
219. According to former assistant commissioner DeLorenzo, State Defendant, NYSED,
“has a mechanism to ensure that approved private schools are reimbursed, through tuition, for related services provided to the students in accordance with their IEPs. NYSED’s rate setting unit establishes tuition rates annually for each school. These rates reflect the services that each school is approved to provide to the students attending the school.”
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220. State Defendants considered the NPS Programs to be “double dipping” when students received funding for additional related services and special education that the NPS
Program did not provide.
221. State Defendants did not investigate whether there were alternative NPS Programs to meet the needs of the children with Additional Services who would either be losing them (or unable to obtain them in the future) or even request that the NPS Programs or City Defendants report back on the number of children who lost services following the issuance of the NPS
Directive.
222. According to former Assistant Commissioner DeLorenzo, following the issuance of the NPS Directive, the Office of Special Education at Defendant NYSED reviews requests for issuance of Related Service Authorizations brought to their attention by City Defendant, DOE, and grants or denies individual exceptions.
223. As of 2015, State Defendant advised that only six exceptions had been granted and, as of the date of this amendment, has not provided information about any additional exceptions that have since been granted.
224. As a result of the NPS Directive, some children’s services were cut on a wholesale basis, as NPS Programs and City Defendants scrambled to comply with the illegal directive.
Others had their IEPs remanded back to the CBST and/or filed for due process.
225. Under the NPS Directive, children referred to an NPS Program are forced to agree to cut their IEP-recommended related services to “match” the related service mandates that the individual NPS Program offers or lose the opportunity to place their child in an NPS Program.
226. Further, parents of children subject to the NPS Directive are forced into a Hobson’s choice to: (i) accept an NPS program that does not meet their children’s individual needs in terms
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of related services and special education; (ii) forego placement entirely; or (iii) are forced into
Litigation.
227. No NPS Programs offer related services after school, ABA, home-based related services, bilingual related services, or services for children who have dual diagnoses.
228. Moreover, NPS Programs largely fail to offer paraprofessionals, related services in standard ratio or a full-range of related services.
229. City Defendants are unable to fund the related services that are mandated on an IEP even in the face of a vacancy at the NPS Program, which prevents the program from implementing the child’s IEP mandated related services.
230. Thus, although City Defendants are responsible for ensuring a FAPE to students, they have no ability to track and monitor related-services attendance to ensure IEP mandates are being fulfilled. This is because Defendants have failed to ensure that City Defendants’ SESIS data system tracks the related services that are supposed to be provided by NPS Programs.
231. In promulgating and carrying out the NPS Directive, Defendants: (i) are foreclosing the possibility that severely disabled children can receive individualized special education mandated by the IDEA; (ii) caused a large number of children with varying disabilities to lose a variety of services; (iii) are preventing children from receiving individualized related services without Litigation; and (iv) have usurped the authority of the IEP teams in New York City.
232. In addition, Defendants have subjected children with disabilities who attend NPS
Programs to discrimination based upon their disabilities by requiring that delivery of the related services occur within the four corners of the school day, thereby forcing students to miss educational classes and non-educational time to which their non-disabled peers are entitled.
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233. In fact, the State Review Officer already ruled that City Defendants’
implementation of the NPS Directive denied a child a FAPE.
234. The State Defendants were fully aware that, for well over twenty years leading up
to the issuance of the NPS Directive, the City Defendants supplemented related services for
children who needed them while attending NPS Programs.
235. In contrast, children with disabilities whose needs are less severe are able to attend
public schools and are not, by policy, deprived of the opportunity for additional services if they
are needed for a FAPE or as a reasonable accommodation.
236. City Defendants have no way of monitoring the delivery of related services to
children who attend NPS Programs as the City Defendants do not require the NPS Programs to log
related service attendance into their special education data system.
237. Even if the NPS Program is unable to meet a mandate due to a staff vacancy or
leave, City Defendants are not allowed to fund the additional related services unless a family files
for Litigation, despite the fact that City Defendants are ultimately responsible for the provision of
related services.
238. By the NPS Directive, State Defendants have restricted City Defendants’ ability to
offer a FAPE and provide reasonable accommodations to children with disabilities that they are
obligated to serve.
DEFENDANTS HAVE FAILED TO DEVELOP POLICIES AND PROCEDURES TO PROTECT PENDENCY RIGHTS OF SUBCLASS MEMBERS
239. The State and the City Defendants are required to establish and maintain procedures in accordance with the IDEA to “ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a [FAPE].” 20 U.S.C. §1415(a).
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240. One of the IDEA’s due process rights is the right to file a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of [a] child” or the provision of FAPE to a child. 20 U.S.C. §1415(b)(6)(A).
241. Thereafter, a parent “shall have an opportunity for an impartial due process hearing, which shall be conducted by the [SEA] or by the [LEA] as determined by State law or by the
[SEA].” 20 U.S.C. §1415(f)(1)(A).
242. As soon as due process complaint (“DPC”) requesting a hearing is filed, Section
1415(j) of the IDEA requires that the district ensure that they provide or fund the provision of
“stay-put” services that constitutes the child’s “last agreed upon-placement.”
243. A student’s “stay-put” rights (also called “pendency”) can be changed by a full or partial agreement between the parties, the district’s provision of and/or funding of services or by a final, unappealed order of a hearing officer, the State Review Officer (“SRO”) or a Court.
244. Pendency rights are supposed to be automatic and unconditional without regard to merit.
245. City Defendants operate the New York City Impartial Hearing Office.
246. State Defendants screen and appoint impartial hearing officers (“IHOs”).
247. The City and State Defendants have failed to implement policies, procedures, or resources to ensure pendency rights of Due Process Autism Services and Due Process NPS
Program subclass members.
248. The New York City Impartial Hearing System is now in a state of crisis.
249. Among other things, the Fourth Amended Complaint alleged the following:
(a) There was a shortage of IHOs;
(b) Defendants failed to ensure appropriate compensation for IHOs;
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(c) IHOs were recusing from complex cases brought mainly by low and middle income families due to the actions, policies and procedures of City and State Education
Defendants;
(d) State Defendants are responsible for selecting, training, monitoring, and controlling hearing officers;
(e) State Defendants exercise an impermissible amount of control over IHOs – including their finances, reputations, and future employment – as if they were employees;
(f) Defendants have vested interests in limiting due process rights because
Defendants are responsible for bearing the costs of due process;
(g) State Defendants’ regulations and oversight activities have created conflicts of interest that interfere with the impartiality of IHOs; and
(h) City and State Education Defendants failed to ensure that pendency rights were implemented;
250. City Defendants took no action to address the claims alleged in the Fourth Amended
Complaint.
251. State Defendants recruited additional IHOs following the filing of the Fourth
Amended Complaint.
252. During the 2019-2020 school year, the system has completely fallen apart – there are few, if any, hearing officers available to hear cases, and as a result, there is a backlog of cases to be assigned. State Defendants recruited a class of new hearing officers in late March 2020 and, as of April 2020, were in the process of reviewing assignments provided to those candidates.
253. All Defendants point fingers at each other, while the children who have clear, legal entitlements, languish in the process.
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254. In May 2019, State Defendants issued the New York City Department of Education
Compliance Assurance Plan (“Compliance Plan”) to City Defendants.
255. State Defendants found City Defendants out of compliance with its obligation to ensure a functioning due process system, confirming many of the allegations set forth in the Fourth
Amended Complaint.
256. According to the Compliance Plan, State Defendants identified “noncompliance with respect to NYCDOE’s obligations to maintain a functioning due process hearing system” that included claims that the Defendants DOE “1. Fails to provide parents access to adequate due process after a complaint has been filed; 2. Fails to provide access to due process data to NYSED;
3. Fails to ensure access to mediation; and 4. Fails to provide prior written notice.”
257. State Defendants noted that City Defendants received a significant increase in due process claims (“DPCs”) since 2015-2016: in 2015-2016 there were 5,026 DPCs filed, whereas between July 1, 2018 and February 22, 2019, there were already 7,488 DPCs filed.
258. In the Compliance Plan, State Defendants noted that “NYSED has documented that
NYCDOE requires a hearing or IHO determination for pendency, even when a student’s pendency is not in dispute, unnecessarily adding to the number of due process complaints filed.”
259. In addition, State Education Defendants found that “NYCDOE does not defend numerous cases at hearing, but rather admits that it did not provide FAPE and does not offer to settle these cases, adding to the unacceptable number of due process complaints filed.”
260. The Compliance Plan and Exhibit D documented a range of other problems and issues.
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261. The Compliance Plan directed City Defendants to provide a “corrective action plan to correct its failure to provide students with disabilities and their parents all the rights and procedural safeguards required by federal and State law and regulation.”
262. Among other things, State Defendants directed that City Defendants must “ensure uncontested pendency matters are not brought before IHOs” and “[e]nsure that staff representing
NYCDOE at due process hearings are authorized to enter into settlement or may do so subject to approval, which approval will take no longer than 30 days after request for approval, which request will be made no later than 5 days after agreement has been reached.”
263. State Defendants took no responsibility for any of the issues and problems set forth in the Compliance Plan and Exhibit D.
264. Further, State Defendants failed to investigate, monitor and ensure that City
Defendants develop a system for providing and/or funding stay-put services for children
265. Defendants’ policies and practices complained of herein have contributed to the increase in litigation as subclass members (and others) have to file annual hearings to combat the illegal, blanket policies simply to keep their services in place.
266. In June 2019, City Defendants responded to the State Defendants by letter addressed to Assistant Commissioner Suriano of the State Education Defendants, noting that as of
June 14, 2019, there were only nine IHOs in rotation with over 9,000 hearings filed in 2018-2019.
267. Chancellor Carranza, in a cover letter, made the following allegations “[w]e have already taken action specifically in response to the directives from the Compliance Assurance Plan you sent in May 2019 by increasing resources, improving facilities, and ensuring regular, prompt payments to Impartial Hearing Officers.”
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268. However, Chancellor Carranza failed to advise State Defendants that City
Defendants had taken steps to reduce the compensation that was provided to hearing officers who handled complex or challenging cases, mostly brought by low-income families who are bringing claims about a large number of school years.
269. Although pendency rights are supposed to be automatic, in general, City
Defendants will not implement a student’s pendency rights unless a hearing officer issues a pendency order.
270. A pendency order is a written order issued by a hearing officer which directs City
Defendants to provide and/or fund the pendency services that a child is supposed to receive.
271. City Defendants insist on a pendency order even in the majority of cases where the terms of a child’s pendency services are not in dispute.
272. Upon information and belief, even in cases where pendency is uncontested and a
Court could easily so order an agreement based on documentary submissions, Defendants require that IHOs hold hearings to issue pendency orders.
273. If IHOs issue pendency orders on consent, they will not be paid for doing so and may risk punishment by State Education Defendants.
274. According to City Defendants, under the New York City Charter, pendency cannot be implemented by City Defendants without an order from a hearing officer due to the requirement that the New York City Comptroller must approve all pendency offers.
275. To the extent that the New York City Charter stands in the way of implementation of pendency either on its face or due to the manner in which Defendants are interpreting the
Charter, the City Charter violates the IDEA.
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276. Further, it is the City Defendants’ position that they will not fund services in advance or enter into binding contracts with private pendency providers and certain schools that are not state-approved.
277. At the same time, many private pendency providers – including providers delivering Autism Services – and schools will often not continue to allow enrollment or provide services until funding is secured (i.e., until an enforceable pendency order is obtained). If they do choose to continue to serve the child, they do so at their own risk as they have no contract with
Defendants or the parents.
278. City Defendants terminate authorization for pendency funding for members of both subclasses at the end of every school year, even if a hearing is still pending.
279. Due to the shortage of hearing officers and backlog, parents cannot gain access to hearing officers or timely pendency hearings even if such orders are not required by the IDEA.
280. Further, State Defendants have failed to ensure that due process subclass members’ pendency rights are protected and have failed to ensure that subclass members’ pendency services are timely implemented when it is clear that the City Defendants are unable to do so.
CITY DEFENDANTS CONTINUE TO APPLY BLANKET POLICIES EVEN TO PARENTS WHO WIN HEARINGS
281. As alleged herein, in general, Autism Services are obtained through administrative
Litigation and are either secured through a resolution agreement, a stipulation or an order from an
IHO.
282. Further, the only way for NPS Directive Class members to obtain individualized programs of related services beyond those offered at an NPS is to engage in Litigation.
283. Parents of children referred for or attending NPS Programs must engage in
Litigation to obtain funding for additional related services or Autism Services.
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284. When students’ last agreed-upon placement and services are established through an unappealed order or via an unappealed order, or resolution agreement for Autism Services, the
City Defendants’ IEP teams ignore the hearing order and/or agreement at subsequent IEP meetings.
285. Instead, at the start of the next school year, they will revert back to the program offered on the last IEP, regardless of whether one or more IHOs found that program inappropriate.
286. Although the City Defendants acknowledge that unappealed orders change a child’s
“last agreed upon placement,” they fail to accord orders with the same legal effect as uncontested
IEPs, although they are supposed to confer the same rights upon children with disabilities and their parents.
287. Thus, rather than conduct assessments and ascertain the impact that the Autism
Services are having on a child’s progress, and make individualized determinations as to whether the services should continue, be increased, decreased, terminated or otherwise modified, the IEP teams terminate them as a matter of course unless an order obtained via Litigation directs them to include the services.
288. As a result, as alleged above, parents are forced into Litigation year after year to fight for the services their children require.
FACTS CONCERNING INDIVIDUAL PLAINTIFFS
289. All plaintiff children require Autism Services to receive a FAPE, and to have the opportunity to gain equal benefit from educational services compared to their typically developing peers and to develop social, behavioral and functional skills that will be needed for meaningful participation in post-secondary outcomes, such as employment, post-secondary school and vocational training, and independent living.
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290. All plaintiff children who attended an NPS Program required Additional NPS
Services, such as OT, to receive a FAPE, and to have the opportunity to gain equal benefit from educational services compared to their typically developing peers and to develop social, behavioral and functional skills that will be needed for meaningful participation in post-secondary outcomes, such as employment, post-secondary school and vocational training, and independent living.
291. Each Plaintiff parent has been told repeatedly by agents of the City Defendants that the City Defendants do not offer any or all categories of Autism Services.
292. Each Plaintiff parent has been told repeatedly by agents of the City Defendants that
1:1 instruction, ABA and after-school services can only be obtained through Litigation.
293. Each Plaintiff parent whose child attended an NPS Program has been repeatedly told by agents of the City Defendants that their children cannot have any additional services or
Autism Services unless those services are available through the NPS Program.
294. All Plaintiff children who attended the NPS Program have been subject to the NPS
Directive.
FACTS CONCERNING A.D. AND D.D.
295. A.D. has two children with Autism, D.D. and D.D.1.
296. D.D. is classified as autistic.
297. D.D. initially displayed significant delays in the areas of expressive and receptive language, motor skills, socialization, academics, cognition, ADL, and behavior. However, with
ABA he made significant improvement in all areas.
298. When this action first started, D.D. attended an NPS Program in Staten Island.
299. When D.D. was transitioning from the CPSE to CSE, Defendants sought to place
D.D. in a 6:1:1 class in District 75.
300. A.D. initiated a hearing for the 2010-2011 school year. - 48 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 50 of 93
301. Through Litigation, A.D. kept D.D. in an NPS program and won Autism Services for D.D.
302. At every annual IEP meeting, City Defendants terminated D.D.’s Autism Services.
303. A.D. has had to engage in repetitive Litigation to keep D.D.’s Autism Services in place.
304. After A.D. filed the initial due process hearing, she has had to engage in Litigation to keep D.D.’s services in place.
305. As one hearing ends, she has to file another one to invoke D.D.’s pendency.
306. D.D. is mandated by an order directing the City Defendants to fund Autism Services
(home-based 1:1 ABA services, parent training) as well as occupational therapy (“OT”) all on an after-school basis, through an administrative hearing order.
307. D.D. made so much progress with Autism Services that he was able to enroll in an inclusion program in a regular public high school for 9th grade and to start to pursue a regular diploma.
308. Had A.D. accepted the City Defendants’ initial recommendation for a program for cognitively impaired children without ABA in District 75, D.D. would likely have remained there today, as only a tiny fraction of students placed in a 6:1:1 ever enroll in a program that would afford them an opportunity to pursue a high school diploma.
309. D.D.’s brother, D.D.1, is also classified with autism.
310. D.D.1 has significant delays in the areas of expressive and receptive language, motor skills, socialization, academics, cognition, ADL, and behavior.
311. D.D.1, like D.D., is high functioning in some areas but has communication, social, behavioral, and academic delays.
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312. D.D.1 has severe behavioral issues similar to the ones that D.D. experienced at his age.
313. Adding insult to injury, D.D.1 received Autism Services through Early
Intervention, but those services were automatically terminated when he transitioned to the City
Defendants’ CPSE.
314. A.D. filed a hearing for D.D.1 while he was still in the jurisdiction of the CPSE, as the same policies that are applied to school-age children are applied to children in the CPSE.
315. D.D.1 also has a hearing order directing City Defendants to provide him with
Autism Services, as well as related services and paraprofessional services.
316. At every annual IEP meeting, City Defendants terminated D.D.1’s Autism
Services.
317. A.D. has had to maintain a constant state of Litigation for D.D.1 in order to obtain the right for him to have Autism Services.
318. City Defendants have failed to timely implement the stay-put rights of D.D. and
D.D.1.
FACTS CONCERNING M.W. AND E.H.
319. E.H. is classified as autistic.
320. E.H. has several delays in the areas of expressive and receptive language, motor skills, socialization, academics, cognition, ADL, and behavior. However, he also displays areas of strength in his academic skills, cognition, and awareness of others.
321. Through Litigation, M.W. won Autism Services for E.H.
322. At every annual IEP meeting, City Defendants terminated E.H.’s Autism Services.
323. Since her initial hearing was filed, M.W. has had to engage in repetitive Litigation to keep E.H.’s Autism Services in place. - 50 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 52 of 93
324. In addition, at the time the initial complaint was filed, E.H. was attending an NPS
Program. M.W. had to maintain a constant state of administrative litigation to obtain funding for
E.H.’s Additional Services.
325. The Defendants do not operate any NPS Programs for children who have a profile like E.H.’s and who require Autism Services.
326. Eventually, M.W. gave up and placed E.H. in a non-approved private school program and now has to file hearings on an annual basis for the tuition, as well as the Autism
Services.
FACTS CONCERNING K.S. AND N.S.
327. K.S. is classified as autistic.
328. K.S. has several delays in the areas of expressive and receptive language, motor skills, socialization, academics, cognition, ADL, and behavior. However, he also displays areas of strength, particularly when he is using technology.
329. K.S. has a dual diagnosis; he is deaf and autistic. K.S.’s parents’ native language is also Arabic.
330. K.S. attends one of two NPS Programs in Queens for children with Autism.
331. Through Litigation, N.S. won Autism Services for K.S., as well as Additional
Services that the NPS Program does not offer.
332. At every annual IEP meeting, City Defendants terminated K.S.’s Autism Services.
333. Since his initial hearing was filed, N.S. has had to engage in repetitive Litigation to keep K.S.’s Autism Services and Additional Services in place.
334. In fact, two IHOs have already found that the City Defendants’ policies against
Autism Services are illegal. Yet, City Defendants simply ignore these rulings as of the start of each new school year. - 51 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 53 of 93
335. Defendants have failed to timely implement K.S.’s stay-put rights.
FACTS CONCERNING E.E.G. AND Y.A.
336. Y.A. is classified as autistic.
337. Y.A. has several delays in the areas of expressive and receptive language, motor skills, socialization, academics, cognition, ADL, and behavior. However, he also displays areas of strength, particularly when he is using technology.
338. Y.A. attends one of two NPS Programs in Queens for children with Autism.
339. Through Litigation, N.S., won Autism Services for Y.A., as well as Additional
Services that the NPS Program does not offer.
340. At every annual IEP meeting, City Defendants terminated Y.A.’s Autism Services.
341. Since her initial hearing, E.E.G. has had to engage in repetitive Litigation to keep
Y.A.’s Autism Services and Additional Services in place.
342. In fact, an IHO already found that the City Defendants’ policies against Autism
Services are illegal. Yet, City Defendants simply ignore these rulings as of the start of each new school year.
343. Defendants have failed to timely implement Y.A.’s stay-put rights.
FACTS CONCERNING E.H.1 AND E.H.2.
344. E.H.2 is classified as autistic.
345. E.H.2 has several delays in the areas of expressive and receptive language, motor skills, socialization, academics, cognition, ADL, and behavior. However, she also displays areas of strength, in the areas of academics, socialization, behavior regulation and community integration.
346. E.H.1 has been advocating for E.H.’s right to be in the LRE with Autism Services since E.H. 2 transitioned from the preschool setting with 1:1 special education teacher services. - 52 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 54 of 93
347. Through Litigation, E.H.A. won Autism Services for E.H.2.
348. E.H.2 attends a regular public school.
349. She is receiving Autism Services in-school and on an after-school basis while she attends a regular public high school.
350. She has attended public school programs since she transitioned from the CPSE.
351. Through Litigation, E.H.1 won Autism Services for E.H.2.
352. At every annual IEP meeting, City Defendants terminated E.H.2’s Autism Services.
353. Since she filed her initial hearing, E.H.1 has had to engage in repetitive Litigation to keep E.H.2’s Autism Services and Additional Services in place.
354. In fact, an IHO already found that the City Defendants’ policies against Autism
Services are illegal. Yet, City Defendants simply ignore these rulings as of the start of each new school year.
355. Defendants have failed to timely implement E.H.2’s stay-put rights.
FACTS CONCERNING M.T. AND J.A.
356. J.A. is classified as autistic.
357. J.A. attends a District 75 program.
358. J.A. has several delays in the areas of expressive and receptive language, motor skills, socialization, academics, cognition, ADL, and behavior. However, he also displays areas of strength, in the areas of musical talent and decoding.
359. J.A. received “Special Instruction” (e.g. Autism Services) through Early
Intervention.
360. Those Autism Services were terminated as a matter of policy and practice when
J.A. transferred to the CPSE.
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361. Since J.A. transferred into the CPSE, M.T. has been trying to restore his Autism
Services.
362. M.T. has filed two hearings and has received an interim award of Autism Services.
363. After only a few hundred hours of Autism Services, J.A.’s cognitive scores increased significantly.
364. Despite the fact that J.A. made clear improvements with Autism Services, City
Defendants have refused to include Autism Services on J.A.’s IEP.
365. M.T. will have to engage in repetitive Litigation if she wants to keep Autism
Services for J.A.
FACTS CONCERNING A.G., S.B. AND K.B.
366. A.G. has two children with Autism, S.B. and K.B.
367. S.B. and K.B. are classified with autism.
368. S.B. and K.B. have delays in the areas of expressive and receptive language, socialization, academics, ADL, and behavior.
369. Through Litigation, A.G. won Autism Services for S.B.
370. Defendants were unable to implement the ordered services and have had to fund an outside center-based ABA program, as well as after-school Autism Services.
371. At every annual IEP meeting, City Defendants terminated S.B.’s Autism Services.
372. Since her initial hearing, A.G. has had to engage in repetitive Litigation to keep
S.B.’s Autism Services in place.
373. K.B. previously attended a 6:1:1 program in District 75.
374. Through Litigation, A.G. won Autism Services for K.B.
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375. A subsequent hearing was filed concerning the 2014-2015 school year and the City
Defendants were ordered to change K.B.’s program to an NPS Program that offers a 1:1 ABA program as well as after-school Autism Services.
376. Defendants had to fund a non-approved center based ABA program as they were unable to implement the mandates of the orders for an ABA program, as well as home-based
Autism Services.
377. At every annual IEP meeting, City Defendants terminated K.B.’s Autism Services.
378. Since her initial hearing, A.G. has had to engage in repetitive Litigation to keep
K.B.’s Autism Services in place.
FACTS CONCERNING M.G. AND Y.T.
379. At the time this action was filed, M.G. and Y.T. lived in New York City.
380. They have since moved to Long Island.
381. All allegations concerning Defendants’ actions pertain to the time period during which Y.T. lived in New York City.
382. The City Defendants classified Y.T. as autistic.
383. Through Litigation, M.G. won Autism Services for Y.T.
384. At every annual IEP meeting, City Defendants terminated Y.T.’s Autism Services.
385. Once M.G. won Autism Services, M.G. had to maintain a constant state of administrative litigation to keep Y.T.’s Autism Services in place.
386. In 2008, the Y.T. Plaintiffs relocated from Egypt to New York City.
387. The Y.T. Plaintiffs’ native language is Arabic and they are not fluent in English although they understand, speak, and read Arabic with 100% fluency.
388. In addition to the claims, raised in and by the class and subclass, M.G. and Y.G. (a) raise claims as part of a partial appeal of a decision issued by the SRO following an appeal of an - 55 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 57 of 93
impartial hearing decision (“FOFD I”) (the “Y.T. Appeal”); and (b) challenge other actions by the
DOE relative to systemic claims outside of the scope of the M.G. Class claims.
History of Y.T. I Due Process Proceedings
389. In February 2012, the Y.T. Plaintiffs filed a DPC with the City Defendants’
Impartial Hearing Office raising claims concerning the 2008-2011 school years, which was amended in June 2012. (“Y.T. I”).
390. A redacted copy of the original and amended DPC filed in Y.T. I are attached hereto as Exhibit A.
391. City Defendants continued to create IEPs for Y.T. for the 2012-2013, 2013-2014,
2014-2015, 2015-2016 and 2016-2017 school years. Before they moved out of New York City, the Y.T. Plaintiffs challenged those IEPs in two separate hearings, which are still pending.
392. Redacted copies of the DPCs filed in the hearings challenging IEP for the 2012-
2013, 2013-2014, 2014-2015, 2015-2016 and 2016-2017 school years are attached hereto as
Exhibit B.
393. The allegations set forth in the DPCs contained in Exhibits A and B are incorporated herein by reference.
394. During all of the years that Y.T. had an IEP from City Defendants, he was recommended for a 6:1:1 class in District 75.
395. Among other things for all school years that Y.T. remained in New York City, the
DOE’s IEP development process, resulting IEPs, programs, and placements for Y.T. during the
2008-2011 school years violated every single provision of the IDEA and implementing regulations and Article 89 of the Education Law, as well as the New York State Commissioner’s regulations.
396. Among other things:
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(a) The City Defendants failed to provide legally sufficient due process safeguards;
(b) The City Defendants failed to provide legally sufficient translation and interpretation services;
(c) The City Defendants failed to properly explain the special education process to the Y.T. Plaintiffs;
(d) The City Defendants failed to make decisions about Y.T. based upon his individual needs;
(e) The City Defendants made decisions about Y.T.’s IEP and placement based on blanket policies, administrative considerations, and resources and predetermined outcomes of the meetings;
(f) City Defendants failed to conduct legally adequate evaluations and reevaluations upon which to base their IEPs for Y.T.;
(g) Y.T.’s IEP teams were not duly constituted and did not have required members; even where certain individuals were present in name/title, they did not possess the required knowledge, training, and independence to formulate a legally valid IEP;
(h) The members of the IEP teams were not vested with sufficient authority and autonomy to perform their mandated duties with respect to Y.T.;
(i) The IEPs were not drafted with parent input;
(j) The IEPs did not adequately describe Y.T.’s strengths, weaknesses, abilities, progress, academic and functional levels, the ways his disability impacted him in and out of the classroom, and they contain conflicting information;
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(k) The IEPs failed to contain information about Y.T.’s most recent evaluations or adequate present levels of performance;
(l) The IEPs failed to include peer-reviewed, research-based instructional strategies, although such methods were feasible and Y.T. required them;
(m) The goals of all of the IEPs were insufficient; they were not measurable or individually tailored to Y.T.’s needs and failed to sufficiently address the ways in which his disability impacts his academic, social-emotional, and behavioral functioning as well as his ability to engage in ADL tasks, communicate, and participate in appropriate leisure activities;
(n) The IEP goals and special education services in each of the IEPs failed to address a lack of progress each year;
(o) The IEPs failed to recommend or provide services to address the fact that
Y.T. is from a bilingual home and initially failed to understand any English;
(p) The City Defendants did not conduct appropriate functional behavior assessments (“FBAs”) or Behavior Intervention Plans (“BIPs”);
(q) The City Defendants failed to consider, recommend or provide, appropriate assistive technology (“AT”) and AT training;
(r) City Defendants failed to consider, recommend or provide Autism Services outside of Litigation;
(s) The IEPs did not recommend special education services and supports that were adequate to address Y.T.’s areas of weakness and significant delays;
(t) The IEPs did not contain services that were adequate to address Y.T.’s behaviors, including positive behavioral supports;
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(u) Y.T.’s related services, such as his speech and language therapy (“SLT”) and occupational therapy (“OT”) were insufficient;
(v) For most years, the IEPs did not include parent training as a related service and, upon information and belief, the IEP teams did not consider or discuss parent training as a related service;
(w) Despite the fact that Y.T. exhibited significant deficits in his ability to generalize skills and information across environments, the City Defendants did not consider or recommend after school/home-based services for Y.T.;
(x) Overall, the IEPs, programs, and placements have not included appropriate services and/or goals for Y.T. to address generalization, his lack of awareness of danger, his toileting needs, and ADL;
(y) The evaluation, IEP development, and placement processes did not meet the standards for providing a FAPE to children with Autism as set forth in the New York State
Regulations;
(z) Due to the City Defendants’ blanket policies, the paraprofessional and limited related services of SLT, OT and PT were the only available special education services that the City Defendants’ IEP teams could recommend in connection with the 6:1:1;
(aa) The IEP teams could not recommend toilet training in school or at home, training in augmentative communication, occupational therapy in a sensory gym, after school related services, or any other service that Y.T. required for a FAPE;
(bb) Substantively, none of the Y.T.’s IEPs offered a FAPE, and the recommendations contained therein were not reasonably calculated to confer educational benefit to Y.T.;
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(cc) Y.T.’s parents were substantially excluded from the special education process; and
(dd) Y.T. did not made sufficient progress during any of the school years in question.
397. Y.T. had severe weaknesses and deficits in the areas of cognition, focus/attention, eye contact, socialization, expressive and receptive language, activities of daily living (“ADL”), behavior, gross motor skills, and fine motor development.
398. Among other things, the DPCs sought compensatory education and a new IEP that included Autism Services as well as additional related services, such as increased SLT.
399. In general, DPC I alleged, inter alia, that Defendants had failed to provide Y.T. a
FAPE in a wholesale manner and, among other things failed to adequately evaluate him, failed to afford Y.T.’s parents language access, failed to adhere to the procedural mandates for creating
IEPs and making placement decisions and failed to recommend or offer Autism Services based on the policies and practices alleged in this lawsuit.
400. In general, Y.T. Plaintiffs alleged that City Defendants warehoused Y.T. in a 6:1:1 class in District 75, with minimal related services even though he did not speak or understand
English. Further, when his behavior was so severe that it was clear the program was not appropriate, rather than provide Autism Service or recommend private school, Defendants merely added untrained paraprofessionals to his program, further denying him access to instruction.
401. On April 20, 2012, an IHO in Y.T. I issued an Interim Order directing the City
Defendants to conduct new testing and fund some independent educational evaluations (“IEEs”).
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402. In May 2012, a PhD-level Board Certified Behavior Analyst (“BCBA”) and expert in Autism conducted the IEE and concluded that Y.T.’s program was not appropriate and that he needed Autism Services.
403. On June 25, 2012, the IHO issued a Second Interim Order finding that the record had established “the appropriateness of supplemental ABA services outside the school day to permit [Y.T.] to make educational progress” and ordering City Defendants to immediately provide
Y.T. with ten hours per week of after school ABA services “at an enhanced rate” by either a bilingual provider or someone with access to a translator.
404. The City Defendants began funding private ABA teachers to provide Y.T. with ten hours per week of after school ABA services in the summer of 2012.
405. The City Defendants and independent evaluators conducted reevaluations of Y.T. in the spring and summer of 2012.
406. On October 26, 2012, the IHO issued a Third Interim Order increasing Y.T.’s after school ABA services to fifteen hours per week, including a minimum of four hours per month of
BCBA supervision, and four hours per month of parent counseling and training, as well as translation services.
407. The City Defendants implemented the interim orders, did not object to their issuance and did not appeal them as a violation of pendency.
The IHO’s Findings of Fact and Decision in Y.T. I
408. On February 11, 2013, the IHO in Y.T. I issued her final Findings of Fact and
Decision (the “Y.T. I IHD”), partially granting and partially denying relief to the Y.T. Plaintiffs.
409. The IHO found that the City Defendants had failed to provide a FAPE to Y.T. for the 2011-2012 school year and ordered that Y.T. receive twenty hours per week of 1:1 ABA services. - 61 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 63 of 93
410. However, the IHO erroneously ruled that, even though the City Defendants denied
Y.T. a FAPE in the 2011-2012 school year, the 6:1:1 class with a paraprofessional was appropriate for Y.T. Further, she incorrectly determined that the 1:1 ABA Services should only continue if
Y.T. is not receiving full-time ABA instruction in school.
411. The IHO’s decision was ambiguous.
412. To the extent that the IHO found that a FAPE was denied for the 2009-2010 and
2010-2011 school years, she was correct, but wrong to deny compensatory education.
413. In the alternative, to the extent the IHO found a FAPE was offered for the 2008-
2011 school years, and Y.T. Plaintiffs’ procedural rights were not violated, the IHO was wrong as a matter of law, based upon the evidence in the record.
414. The IHO was also wrong not to award compensatory education and not to order the additional relief that Plaintiffs requested, as the City Defendants failed to meet their burden or to rebut Plaintiffs’ evidence on any issue.
415. As to all the 2008-2012 school years before the IHO in Y.T. I, the IHO should have determined that: (a) the City Defendants’ evaluations were legally insufficient; (b) the City
Defendants failed to consider the recommendations in the evaluations that they did have; (c) the
City Defendants did not address Y.T.’s need for Arabic language instruction and interpretation;
(d) the IEPs were substantively and procedurally invalid; (e) the City Defendants excluded the
Y.T. Plaintiffs by denying them language access services and due process and engaging in thorough predetermination; (f) the City Defendants failed to provide legally valid FBAs, BIPs, and positive behavioral supports; (g) the City Defendants failed to rebut the proof of Y.T.’s lack of progress and contradictory information in evidence; (h) the IEPs and placements did not substantively address Y.T.’s delays in communication, attention, ADL tasks, social skills,
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knowledge and understanding of danger, or his self-injurious, preservative, and hyperactive behavior; (i) the evidence showed that the recommendations were made pursuant to a predetermined decision and blanket policies; and (j) Y.T. should have been awarded the services and instruction sought by the Plaintiffs.
416. The IHO was also wrong as a matter of law, and the weight of the evidence does not support the IHO’s finding that the City Defendants “made reasonable efforts to communicate” with the Y.T. Plaintiffs.
417. Further, the IHO erred as a matter of law, and the weight of the evidence does not support the IHO’s findings that Y.T. was not entitled to compensatory services.
418. The IHO was incorrect as a matter of law when she found that the Y.T. Plaintiffs’ language claims were moot.
419. The portion of the IHO’s decision with respect to the claims and relief that she denied was not well-reasoned and did not reflect the evidence in the record or the memorandum submitted by Plaintiffs.
420. Further, the IHO could not and did not rule upon the allegations of blanket policies and practices with respect to Autism Services alleged by the Y.T. Plaintiffs.
421. The IHO failed to rule on numerous claims raised in the hearing.
422. The IHO failed to rule on any claim other than the IDEA claim raised.
423. Plaintiffs filed their petition appealing portions of Y.T. I IHD to the SRO on March
25, 2013.
424. Thereafter, the City Defendants requested an extension of approximately two months and submitted an answer and cross-appeal, in which they appealed the portions of Y.T. I
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IHD that ordered ABA services and found a lack of FAPE in the 2011-2012 school year (the
“Answer and Cross-Appeal”).
425. After the Answer and Cross-Appeal was filed, the City Defendants notified
Plaintiffs’ counsel that they would terminate the ABA services that they had been providing pursuant to the Y.T. IHD on or about June 30, 2013.
426. As a result, the Y.T. Plaintiffs filed the original complaint in this action on July 3, seeking emergency relief.
427. The court granted the Y.T. Plaintiffs’ request for a preliminary injunction during the summer of 2013, to maintain the Autism Services that had been ordered by the IHO.
428. On April 10, 2015, the SRO issued a decision (the “SRO Decision”), dismissing the City Defendants’ Cross-Appeal and partially sustaining Plaintiffs’ Petition in SRO No. 13-047.
429. The SRO confirmed that the DOE denied Y.T. a FAPE for all of the school years between 2008 and 2011, left the IHO’s ruling that Y.T. should have 20 hours per week of Autism
Services with translation intact, but ordered only 1000 hours of compensatory ABA.
430. The SRO failed to rule on any claim other than claims brought under the IDEA and
Article 89 of the Education Law due to assertions that the SRO had no jurisdiction to do so.
431. Thus, to date, neither the IHO nor the SRO issued rulings on any claims other than claims raised under the IDEA and Article 89.
432. All rulings made by the SRO that were adverse to Plaintiffs were incorrect as a matter of law, arbitrary, contrary to the record, and poorly reasoned.
433. The SRO failed to order sufficient compensatory education to make up for the extensive denial of FAPE.
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434. Y.T. was entitled to more Autism Services and SLT services to make him whole for the deprivation that he suffered.
435. The SRO failed to order that Y.T. should have Autism Services during the school day.
436. The SRO failed to rule on multiple allegations and claims raised by the Y.T.
Plaintiffs, which should have been resolved in their favor.
437. The SRO erroneously found certain claims and remedies to be moot, which was wrong as a matter of law as these claims were capable of repetition and yet evading review.
438. The SRO further ordered that, after the 1:1 instructional services have been provided, the DOE shall fund an independent evaluation of the student’s progress and, in consultation with Y.T.’s parents, determine whether Y.T. requires additional 1:1 instruction to compensate for the district’s failure to provide him with FAPE for the four years at issue, affording discretion to the Defendants to craft or deny the Plaintiffs’ award.
439. The SRO incorrectly denied Y.T. relief in the form of parent training and counseling as the evidence showed that he needs those services and they are required by law.
440. The SRO did not address any claims that the Plaintiffs asserted under Section 504, as the SRO ruled that he had no jurisdiction to do so.
441. The SRO’s ruling that a “teaching assistant” could deliver all of the compensatory
1:1 instruction was wrong as a matter of law, unsupported by the record and now illegal under the
ABA Law.
442. Further, the SRO disregarded the record in rendering a decision.
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443. The SRO’s ruling violated basic principles of due process, finality, equity and the
IDEA insofar as it allows for the City Defendants to have control over (or a role in deciding)
whether Y.T. should receive additional compensatory ABA hours.
444. The SRO made sua sponte adverse rulings without affording the Y.T. Plaintiffs
notice or an opportunity to be heard or to call witnesses to rebut the sua sponte issues and defenses
raised by the SRO.
445. For example, the SRO erroneously considered the receipt of Autism Services after
the school years at issue in the hearing as a grounds to reduce the compensatory award for the
school years at issue.
446. The SRO should not have considered retrospective, speculative information which
the Y.T. Plaintiffs had no ability to contest or rebut to reduce their requested compensatory award.
447. The SRO was wrong as a matter of law and due process to sua sponte raise a defense that the City Defendants did not raise.
448. The SRO failed to solicit evidence or information concerning Y.T.’s functioning after the hearing; thus, his reliance upon Y.T.’s receipt of additional services while the appeal was pending was purely speculative.
449. The SRO’s decision was also inconsistent with the decision of this Court.
450. The SRO failed to order that the 20 hour-per-week after school program be incorporated into Y.T.’s IEP.
451. According to the SRO, the IHO and SRO had no jurisdiction to rule on systemic claims or claims based on policies. Thus, according to the SRO, systemic claims can never be exhausted in hearings in New York City.
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452. The Y.T. Plaintiffs have not been permitted discovery in the hearing process and thus, establishing proof of such policies and practices through systemic evidence collection was not possible.
453. The SRO’s decision should not be afforded deference in terms of the relief awarded because:
(a) the SRO has a conflict of interest because he is an employee of the State
Defendants;
(b) the SRO has a conflict of interest because he is a lawyer for State
Defendants;
(c) The SRO is not an expert in the education for autistic children and to the extent that he did not accept the evidence in the record, he had no evidence upon which to base his conclusions; and
(d) The SRO uses NYSED “educational associates” to review records on appeal, analyze educational issues raised in the appeal and offer their opinions to the SRO with respect to educational issues, despite the fact that they are not subject to cross-examination and their reports are not available to the parties.
454. The Y.T. Plaintiffs are not required to show that Y.T. suffered a gross violation that amounted to a substantial exclusion from the special education process, but to the extent that such a showing is required, Y.T. did suffer several gross violations, which would entitle him to compensatory education.
The School Years Not Covered by Y.T. I
455. While Y.T. I was pending, Defendants held additional IEP meetings and created additional IEPs, refusing to recommend Autism Services on the IEP outside of the Litigation process. - 67 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 69 of 93
456. As of the 2012-2013 school year until Y.T. moved to Long Island, the City
Defendants maintained Y.T. in the same 6:1:1 program with a paraprofessional.
457. However, Y.T. continued to receive additional after school ABA services, as ordered by the IHO and this Court.
458. Further, eventually, following the SRO’s decision, Defendants allowed the Y.T.
Plaintiffs to push the compensatory ABA into Y.T.’s school.
459. However, Defendants assigned a paraprofessional to Y.T. who was completely inappropriate, did not have command of the English language or basic concepts of educational strategies.
460. When the ABA services were not present during the day, Y.T. was not receiving appropriate educational services.
461. During those years, City Defendants continued to refuse to modify Y.T.’s IEP to offer any 1:1 instruction, ABA or after school instruction Autism Services.
462. This persisted until the plaintiffs moved out of New York City to Long Island.
463. Their school district in Long Island agreed to provide Y.T. with Autism Services, both in school and out of school.
NPS CLASS ACTION ALLEGATIONS
464. The NPS Class members’ claims for relief with respect to Defendants’ systemic practices, policies, procedures, actions, and failures to act are brought on behalf of themselves, and on behalf of all those similarly situated pursuant to Rules 23(a) and 23(b) of the Federal Rules of
Civil Procedure.
465. Defendants have acted, or refused to act, on grounds generally applicable to the named NPS Class Plaintiffs and Class members, making relief appropriate, and able to be granted, to the NPS Class as a whole. - 68 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 70 of 93
466. The NPS Class is defined as: (i) children with disabilities under the meaning of the
IDEA who (a) reside in New York City; (b) have IEPs; (c) were recommended for or attended an
NPS Program; (d) have been subject to the NPS Directive; and (ii) those children who will, in the future, meet the criteria of (i).
467. In addition, the NPS class includes three subclasses.
468. The Due Process NPS Subclass are all members of the NPS Class who are, or were, receiving Additional NPS Services as of July 2012 and who invoked their due process rights and obtained stay-put rights under 20 U.S.C. §1415(j).
469. The proposed Due Process NPS Subclass II are all members of the NPS Class who received or will receive Additional NPS Services after July 2012 through Litigation.
470. The proposed Section 504 NPS Subclass is comprised of members of the NPS Class who are qualified students with disabilities under the meaning of Section 504.
471. The NPS Class and each subclass are so numerous that joinder of all members is impracticable.
472. Upon information and belief, there are thousands of NPS Class members.
473. Upon information and belief there are between 8000 and 9000 children with IEPs recommended for placement in NPS Programs in the 2018-2019 school year.
474. Approximately 2000 of those students are classified with Autism.
475. The exact number of the members of the NPS Class and each subclass is unknown but could be easily identified as the City Defendants maintain computerized data systems that have the information available.
476. Not all parents of children with IEPs have access to lawyers. Further, requiring hundreds or thousands of NPS Class members to litigate their rights would be futile, as individuals
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cannot litigate a systemic solution necessary in this case. Further, doing so would impose a significant economic burden on the educational and judicial systems.
477. There are questions of law and fact in common among named Plaintiffs, D.D.1,
E.H., K.S., Y.A., their parents, and the members of the NPS Class and Subclasses, including, but not limited to, whether:
(a) The State Defendants adopted and implemented policies, directives, and practices with respect to whether Class and Subclass members could receive related services funded or provided by the City Defendants while they attend NPS Programs that are not offered by or available at those programs;
(b) Defendants violated the IDEA by adopting and requiring implementation of the NPS Directive;
(c) Defendants violated NPS Class members’ rights by engaging in predetermination with respect to IEP meetings held concerning NPS Class members;
(d) Defendants violated NPS Class members’ rights by depriving them of the right to a FAPE; and
(e) Defendants violated NPS Class members’ rights by depriving them of the right to special education due to the imposition of the NPS Directive.
478. There are questions of law and fact in common among named Plaintiffs, D.D.1,
E.H., K.S., Y.A., their parents, and the members of the NPS Section 504 Subclass, including, but not limited to, whether: Defendants violated Section 504 by adopting and implementing the NPS
Directive. Plaintiffs’ claims are typical of those of the Class that they seek to represent.
479. Plaintiffs have the same interests as the other Class members in prosecuting claims against the Defendants.
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480. A class action is superior to other available methods for the fair and efficient adjudication of the matter at this time. Class actions involving similar types of claims and relief are often certified.
481. The expense and burden of individual litigation make it extraordinarily difficult for
Class members to redress the wrongs done to them individually.
482. Common issues predominate over individual questions and generalized proof will resolve the legal and factual questions raised by Class members.
483. The named Plaintiffs will adequately represent and protect the interests of the Class, and Plaintiffs know of no conflict of interest among the Class members.
AUTISM SERVICES CLASS ACTION ALLEGATIONS
484. The Autism Services Class Plaintiffs’ claims for relief with respect to Defendants’ systemic practices, policies, procedures, actions, and failures to act are brought on their own behalf, and on behalf of all those similarly situated, pursuant to Rules 23(a) and 23(b) of the
Federal Rules of Civil Procedure.
485. Defendants have acted, or refused to act, on grounds generally applicable to the named Autism Services Class Plaintiffs, Class and Subclass members, making relief appropriate to the Autism Services Class and Subclasses.
486. The Autism Services Class consists of: (i) children diagnosed with ASD under the
DSM-V, or classified as autistic by the City Defendants under the IDEA, who (a) reside in New
York City; (b) have IEPs; (c) are, or will be, subject to the Defendants’ Autism Services Policies and Practices; (d) have been subject to the Defendants’ Autism Services Policies and Practices; and (ii) those children who will, in the future, meet the criteria of (i).
487. The Autism Services Class contains three subclasses.
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488. Due Process Autism Services Subclass consists of members of the Autism Services
Class who have won IHO or SRO decisions, court orders, or entered into resolution agreements for Autism Services and who have been or will be subject to the Autism Services Policies and
Practices.
489. The Proposed Section 504 Autism Services Subclass consists of members of the
Autism Services Class who are qualified individuals with disabilities under the meaning of Section
504.
490. The Proposed NPS Autism Services Subclass consists of members of the Autism
Services Class who are recommended for or attend NPS Programs.
491. The Autism Services Class does not include school-age children with Autism whose parents have: (a) unilaterally placed them in private school that is not an NPS Program; (b) are only seeking reimbursement for out-of-pocket school tuition through a hearing; and (c) are not seeking funding or provision of Autism Services.
492. The Autism Services Class is so numerous that joinder of all members is impracticable.
493. They are all subject to the blanket policies and practices.
494. Requiring thousands of Autism Services Class members to litigate their claims would be futile, as individuals cannot litigate a systemic, citywide remedy, and requiring individuals to do so would impose a significant economic burden on the educational and judicial systems.
495. There are questions of law and fact in common among named Plaintiffs and the members of the Autism Services Class, including, but not limited to, whether:
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(a) Defendants adopted and implemented illegal regulations, blanket policies, directives, and practices with respect to Autism Services;
(b) State Defendants have failed to include Autism Services on the continuum for special education in New York State;
(c) City Defendants have failed to include Autism Services on the continuum for special education in New York City;
(d) State and City Defendants failed to adopt adequate regulations, policies, directives, practices and procedures to ensure that City Defendants have the ability to assess children for the need for Autism Services;
(e) State and City Defendants failed to ensure that City Defendants have the resources to provide Autism Services to the children who need them to receive a FAPE under the
IDEA or pursuant to Section 504;
(f) Defendants failed to adopt adequate regulations, policies, directives, practices and procedures to ensure that class members have access to Autism Services;
(g) The State Defendants failed to supervise City Defendants with respect to
Autism Services;
(h) Defendants failed to ensure research-based methods are used to instruct
Autism Services Class members;
(i) Defendants have adopted and implemented improper blanket policies, directives, practices, procedures, and protocols concerning the delivery of services to the Autism
Services Class members;
(j) The State and the City Defendants discriminated against Autism Services
Class members based upon their disabilities;
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(k) The State and the City Defendants violated Class members’ rights by engaging in predetermination with respect to IEP meetings held concerning Autism Services Class members; and
(l) The State and the City Defendants violated Autism Services Class members’ rights by depriving them of the right to education.
496. There are questions of law and fact in common among named Plaintiffs and the members of the Due Process Autism Services Class, including, but not limited to, whether:
(a) The ABA Law, on its face, is preventing and will prevent class members from receiving Autism Services.
(b) State Defendants’ implementation of the ABA Law has caused a shortage of ABA providers.
(c) There is a shortage of LBAs in New York City.
(d) There is a shortage of CBAAs in New York City.
(e) There are an insufficient number of providers who satisfy the criteria of the
ABA Law to serve the Autism Subclass.
497. There are questions of law and fact in common among named Plaintiffs and the members of the proposed Section 504 Autism Services Subclass, including, but not limited to whether Defendants violated Section 504 by the conduct complained of herein relative to the proposed subclass.
498. Plaintiffs’ claims are typical of those of the Class that they seek to represent.
499. Plaintiffs have the same interests as the other Class members in prosecuting claims against the Defendants.
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500. A class action is superior to other available methods for the fair and efficient adjudication of the matter at this time. Class actions involving similar types of claims and relief are often certified.
501. The expense and burden of individual litigation make it extraordinarily difficult for
Class members to redress the wrongs done to them individually.
502. Common issues predominate over individual questions and generalized proof will resolve the legal and factual questions raised by Class members.
503. The named Plaintiffs will adequately represent and protect the interests of the Class.
Plaintiffs know of no conflict of interest among the Class members.
Class Counsel Is Qualified to Represent the Classes and Subclasses
504. Class Counsel is experienced in litigating federal class actions on behalf of children with special needs, and their parents, in New York.
505. Class Counsel is qualified to represent the Classes and Subclasses and has served as counsel on several systemic and class action cases in New York.
Plaintiffs Should Not Be Required to Further Exhaust Their Administrative Remedies, as the Administrative Process Will Be Futile and Ineffective
506. Plaintiffs are not required to exhaust their administrative remedies for several reasons.
507. To the extent that Plaintiffs seek to enforce pendency and pendency issues of an emergency nature, they do not have to be exhausted.
508. Class and Subclass members who face irreparable harm do not need to further exhaust their administrative remedies.
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509. The current due process system is fraught with delays. Plaintiffs are not required
to exhaust their administrative remedies, as the hearing process is too ponderous to meaningfully
address their needs.
510. Plaintiffs’ claims that are systemic in nature and allege violations in policies,
procedures, and practices as well as to the administrative system as a whole do not need to be
exhausted.
511. Exhaustion is excused to the extent any Plaintiff has already attempted to exhaust
claims at the IHO level.
512. Plaintiffs are not required to exhaust administrative remedies, because they need
discovery that is not available through administrative hearings and can only be obtained through
the federal court procedures.
513. Exhaustion is not required because the due process procedures are not available to
exhaust all claims that are raised.
514. Plaintiffs challenge the due process procedures themselves, and, therefore,
exhaustion is futile.
515. No Plaintiff is required to exhaust their systemic claims, as the Court has already
ruled that such claims do not need to be further exhausted.
516. The Y.T. Plaintiffs need not further exhaust any of their claims, for all of the reasons
alleged herein and also because the Court has already ruled that claims raised in the DPC
concerning the 2008-2012 school years do not need to be further exhausted due to delays at the
IHO level.
FIRST CAUSE OF ACTION: SECTION 504 OF THE REHABILITATION ACT
517. Plaintiffs repeat and reallege the allegations of all the above paragraphs as if fully set forth herein. - 76 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 78 of 93
518. Defendants’ conduct is knowing, intentional, reckless, and gross.
519. The State Defendants have discriminated and continue to discriminate against
Plaintiffs and NPS Class members based on their disabilities by promulgating and implementing the NPS Directive.
520. The State Defendants have discriminated and continue to discriminate against
Plaintiffs and NPS Class members based on their disabilities by restricting admission to NPS
Programs based upon disability classification.
521. Defendants have discriminated and are discriminating against Plaintiffs and NPS
Class members based on their disabilities by insisting on a one-size-fits-all approach to education for a child attending an NPS Program.
522. Defendants have discriminated and are discriminating against Plaintiffs and NPS
Class members by restricting admission to, and continued attendance in, NPS Programs based upon whether or not children require additional services or reasonable accommodations not available at the particular NPS Program.
523. Defendants have discriminated, and are discriminating, against Plaintiffs and NPS
Class members based on their disabilities by imposing policies and procedures that have a disparate impact on children with the most significant disabilities who require placement in NPS
Programs.
524. If not for the severity of their disabilities, the NPS Program Plaintiffs could attend less restrictive schools, where they would be eligible to receive additional services. The disabilities of the class members, coupled with the City Defendants’ failure to have appropriate programs, gave the NPS Class members no choice but to leave the public schools and seek approval to enroll in the NPS Programs, and, thus, their disabilities are a substantial cause of their
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inability to be eligible for the full range of services the City Defendants offer. The State
Defendants’ restrictions imposed on Plaintiffs and NPS Program Class members have deprived them of their rights under Section 504.
525. Defendants discriminated and are discriminating against Plaintiffs and NPS Class members based on their disabilities pursuant to Section 504 of the Rehabilitation Act by adopting, implementing, and subjecting them to blanket policies and practices with respect to the development of their IEPs, programs, and placement without regard to their individual needs.
526. The City Defendants discriminated and are discriminating against Plaintiffs and
Autism Services Class members based on their disabilities pursuant to Section 504 of the
Rehabilitation Act by adopting, implementing, and subjecting them to blanket policies and practices, prohibiting the recommendation of services on the IEPs of Class members without regard to their individual needs.
527. The City Defendants discriminated and are discriminating against Plaintiffs based on their disabilities pursuant to Section 504 of the Rehabilitation Act by failing to provide reasonable accommodations to Plaintiffs and Autism Services Class members.
528. Children without disabilities do not need services to help them generalize their skills between different individuals and settings. Autism Services Class members require Autism
Services to have the opportunity to gain equal access to and benefit from education in New York
State.
529. By denying them access to Autism Services, the City Defendants have discriminated, and are discriminating, against Plaintiffs and the Autism Class based on their disabilities pursuant to Section 504.
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530. By denying them access to Autism Services, the City Defendants have discriminated, and are discriminating, against Plaintiffs and the Autism Services Class based on their disabilities pursuant to Section 504.
SECOND CAUSE OF ACTION: THE IDEA
531. Plaintiffs repeat and reallege the allegations of all the above paragraphs as if fully set forth herein.
532. The State Defendants have violated the IDEA by adopting and promulgating policies and directives that force the City Defendants and schools to apply institutionalized predetermination to the IEPs and placements of Plaintiffs, NPS Class members and the Autism
Services Class members.
533. Defendants have denied Plaintiffs, NPS Class members, and the Autism Services
Class members a FAPE and substantially excluded parents of autistic children from the special education process.
534. Defendants have violated the IDEA by adopting, applying, and directing the application of blanket policies, practices, and procedures to the IEPs and placements of Plaintiffs,
NPS Class members, and the Autism Services Class members.
535. Defendants have violated the rights of Plaintiffs, NPS Class members, and the
Autism Services Class members under the IDEA by adopting policies, procedures, and practices that are based upon administrative and financial concerns rather than the individual needs of children.
536. The City Defendants have violated the IDEA by applying institutionalized predetermination to the IEPs and programs of Plaintiffs, NPS Class members, and Autism Services
Class members.
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537. Defendants have violated the procedural due process rights of Plaintiffs, NPS Class members, and the Autism Services Class members, and Due Process Subclass members of each class under the IDEA.
538. Defendants have violated the stay-put rights of Due Process Subclass members of all classes and proposed classes.
539. Defendants have violated the IDEA by failing to adopt legally sufficient policies, procedures, and practices to ensure that the administrative due process system is functioning in accordance with the IDEA and minimum standards of Due Process.
540. The City Defendants have violated the rights of Plaintiffs and Due Process Subclass members who are entitled to a due process system that complies with the IDEA.
541. The State Defendants have violated Plaintiffs’ procedural and due process rights under the IDEA.
542. The State Defendants have failed to supervise, oversee, and guarantee due process rights and FAPE to Plaintiffs, and Due Process Subclass members of all classes and proposed classes.
543. State Defendants have failed to ensure that Subclass members’ pendency rights are protected.
544. State Defendants have failed to ensure that there are sufficiently trained, qualified and licensed providers to deliver ABA services to Autism Services Class members and subclasses.
545. The ABA License Law and regulations violate the IDEA.
546. The ABA License Law as implemented by State Defendants violates the IDEA.
547. To the extent that the New York City Charter prevents the City Defendants from implementing pendency upon the filing of a DPC, the City Charter violates the IDEA on its face.
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548. To the extent that the implementation of or interpretation of the New York City
Charter prevents the City Defendants from implementing pendency upon filing of a DPC without an order, the implementation procedures and/or interpretation of the law violates the IDEA.
THIRD CAUSE OF ACTION: 42 U.S.C. §1983
549. Plaintiffs repeat and reallege the allegations of all the above paragraphs as if fully set forth herein.
550. By facts alleged herein concerning Defendants’ actions, Defendants have violated
42 U.S.C. §1983 by depriving all Plaintiffs, NPS Class members, and Autism Services Class members under color of state law, of their rights, privileges, and immunities under federal statutory and constitutional law.
551. By implementing, promulgating, and continuing to enforce and/or effectuate a policy, practice, and custom as alleged herein, Defendants have denied Plaintiffs, NPS Class members, and Autism Services Class members of educational services to which they are entitled under the IDEA and New York law, in violation of 42 U.S.C. §1983.
552. By implementing, promulgating, and continuing to enforce and/or effectuate a policy, practice, and custom of terminating the last agreed upon placement created by an unappealed order as of June 30th of every year, Defendants have deprived and will continue to deprive those Plaintiffs and members of the Plaintiff Subclasses of educational services to which they are entitled under the IDEA and New York State law, in violation of 42 U.S.C. §1983.
553. By failing to adopt adequate policies and procedures to prevent Plaintiffs and
Autism Services Class members from being illegally denied Autism Services to which they are entitled under the IDEA and New York State law, Defendants have violated 42 U.S.C. §1983.
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554. By adopting, implementing and enforcing policies, procedures and practice which deny Plaintiffs and Autism Services Class members through the IEP process, Defendants have violated 42 U.S.C. §1983.
555. By failing to supervise and train their employees and agents concerning due process and the laws and policies that protect the Plaintiffs, NPS Directive Class members, and Autism
Services Class members from denial of educational services under the IDEA and New York State
Education Laws, Defendants have violated 42 U.S.C. §1983.
556. The City Defendants violated the rights of Plaintiffs and all Class members under
42 U.S.C. §1983 by failing to have adequate policies, procedures, protocols, and training to ensure that the long-standing provisions of the IDEA and Section 504 asserted herein were being implemented, which caused Plaintiffs to be deprived of the right to education afforded them under state and federal law as a result.
557. Under color of state law, the City Defendants deprived Plaintiffs, and members of the Classes, their right to educational services without due process of law in violation of the
Fourteenth Amendment of the U.S. Constitution.
558. As a direct and proximate result of the misconduct, each and every Plaintiff and members of the Classes suffered and continue to suffer harm, which will continue unless
Defendants are enjoined from their unlawful conduct.
FOURTH CAUSE OF ACTION: NEW YORK LAW
559. Plaintiffs repeat and reallege the allegations of all the above paragraphs as if fully set forth herein.
560. Defendants have violated the rights of the Plaintiffs and all Class members under the New York State Education Law §§3202, 3203, 4401, 4404 and 4410 and §200 of the
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561. State Defendants’ actions with respect to interpretation of, implementation of regulations, policies, and procedures has been irrational, unreasonable, arbitrary and capricious.
ADDITIONAL CAUSES OF ACTION SPECIFIC TO THE Y.T. PLAINTIFFS
562. The Y.T. Plaintiffs repeat and reallege the allegations of all the above paragraphs as if fully set forth herein.
563. The City Defendants denied Y.T. a FAPE for the 2008-2012 School Years for additional reasons beyond those identified by the SRO.
564. Y.T. is entitled to additional compensatory education for the denial of a FAPE during the 2008-2012 school years.
565. The SRO violated the Y.T. Plaintiffs’ due process rights under the IDEA by allowing City Defendants to control the remedy in the Y.T. I hearing.
566. For the 2008-2012 school years, Defendants violated Y.T. Plaintiffs’ procedural and due process rights under the IDEA by failing to provide PWN that conforms to the IDEA in either English or Arabic.
567. For the 2008-2012 school years, the City Defendants violated the Y.T. Plaintiffs’ rights under the IDEA, Section 504, and New York State Education law by failing to evaluate and reevaluate Y.T. in accordance with those laws.
568. For the 2012-2013 through the 2016-2017 school years, the City Defendants denied
Y.T. a FAPE;
569. The City Defendants have failed to adopt policies, procedures, and protocols to ensure that the Y.T.’s parents were provided: (a) legally compliant due process rights under the
IDEA pursuant to 20 U.S.C. §1415; and (b) translation and interpretation services with respect to educational records, correspondence, IDEA notices and safeguards, meetings and hearings.
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570. The City Defendants discriminated, and are discriminating, against Y.T. based upon his disability.
571. The City Defendants’ actions, and failure to act, have been knowing, gross, reckless, and intentional.
572. The City Defendants have violated the rights of the Y.T. Plaintiffs under the New
York State Constitution, New York State Education Law §§3202, 3203, 4401, 4404 and 4410 and the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. § 200.
RELIEF
WHEREFORE, Plaintiffs request that the Court:
(a) Issue a Declaratory Judgment on behalf of all Plaintiffs, class members, and subclass members declaring that the laws, actions, inactions, policies, procedures, practices and protocols as alleged herein violate the governing laws;
(b) Certify the additional classes and subclasses not yet certified by the Court;
(c) Issue a preliminary and permanent injunction on behalf of the NPS Class and Subclasses:
(i) Enjoining Defendants from Implementing the NPS Directive;
(ii) Directing Defendants to issue a notice to all NPS Class members,
IEP teams, NPS Programs, relevant stakeholders, interested parties, and administrators that the
NPS Directive is no longer in effect;
(iii) Directing Defendants to adopt policies, procedures, and protocols and to expand programs to ensure that NPS Class members are not denied a FAPE or subjected to decisions based upon administrative concerns, availability of resources, blanket policies, or discrimination;
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(iv) Appointing an independent monitor to oversee Defendants’ compliance with the Court’s orders.
(d) Issue a Preliminary and Permanent Injunction on behalf of the Autism
Services Class:
(i) Enjoining City Defendants from denying class members Autism
Services without regard to Class members’ individual needs and based upon resources, disability, availability, or other factors unrelated to these needs.
(ii) Enjoining IEP teams in New York City from refusing to consider and recommend Autism Services;
(iii) Ordering State and City Defendants to place Autism Services on the
State and City continuums for special education services;
(iv) Directing Defendants to retain a panel of practitioners and experts, including, but not limited to, experts on Autism, ABA, assessments, inclusion and special education financing to develop a plan for implementing policies, procedures, practices, guidelines, criteria and training to implement Autism Services for class members.
(v) Directing the City Defendants to develop understandable guides and due process documents for parents of children with Autism to ensure that they understand their rights;
(vi) Directing Defendants to take all necessary actions to fund and support the expansion and development of Autism Services in New York City to ensure a sufficient number of professionals have the training, credentials and experience necessary to provide appropriate ABA to class members;
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(vii) Directing Defendants to expand the number of professionals who are qualified to provide Autism Services to children in New York City, by recruiting and training staff;
(viii) Directing Defendants to take all necessary actions to fund and support the expansion and development of Autism Services in New York City to ensure a sufficient number of professionals have the training, credentials and experience necessary to provide appropriate ABA to class members;
(ix) Directing Defendants to develop and implement specialized ABA- based training for teachers and paraprofessionals working with students with Autism;
(x) Directing Defendants to recruit, train, hire and fund qualified individuals to supervise and deliver Autism Services;
(xi) Directing the City Defendants to modify their special education data system and form IEP to enable IEP teams to recommend Autism Services;
(xii) Directing Defendants to promulgate new policies and procedures for
IEP meetings to ensure that IEP teams are trained to make individualized determinations, track and review progress, and increase or modify services to address any lack of progress with regard to Autism Services Class members;
(xiii) Enjoining State Defendants from enforcement and implementation of the ABA License Law with respect to class members; and
(xiv) Appointing an independent monitor to oversee Defendants’ compliance with the Court’s order.
(e) Issue a Preliminary and Permanent Injunction on behalf of the Due Process
Autism Services Subclass:
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(i) Enjoining the City Defendants from regularly terminating funding for Autism Services for any Autism Services Class members that have been receiving Autism
Services through Litigation as of 2010 and onward unless the parent consents, after being advised of his/her rights;
(ii) Enjoining State Defendants from enforcement and implementation of the ABA License Law with respect to subclass members;
(iii) Directing Defendants to timely fund individuals who are proficient in the delivery of ABA services to deliver ABA services selected by Plaintiff parents pursuant to
Litigation even if those individuals do not possess the credentials required by the ABA License
Law; and
(iv) Issue notice to the subclass explaining subclass members’ rights.
(f) Issue a preliminary and permanent injunction on behalf of the NPS Autism
Services Subclasses:
(i) Enjoining Defendants from preventing IEP teams from recommending Autism Services for children recommended for NPS Programs;
(ii) Enjoining State Defendants from preventing NPS Programs from accepting or keeping class members who have Autism Services;
(iii) Enjoining City Defendants from denying class members Autism
Services without regard to Class members’ individual needs and based upon resources, disability, availability, or other factors unrelated to these needs;
(iv) Enjoining IEP teams in New York City from refusing to consider and recommend Autism Services;
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(v) Ordering State and City Defendants to place Autism Services on the
State and City continuums for special education services;
(vi) Directing Defendants to retain a panel of practitioners and experts, including, but not limited to, experts on Autism, ABA, assessments, inclusion and special education financing to develop a plan for implementing policies, procedures, practices, guidelines, criteria and training to implement Autism Services for class members;
(vii) Directing the City Defendants to develop understandable guides and due process documents for parents of children with Autism to ensure that they understand their rights;
(viii) Directing Defendants to take all necessary actions to fund and support the expansion and development of Autism Services in New York City to ensure a sufficient number of professionals have the training, credentials and experience necessary to provide appropriate ABA to class members;
(ix) Directing Defendants to expand the number of professionals who are qualified to provide Autism Services to children in New York City, by recruiting and training staff;
(x) Directing Defendants to take all necessary actions to fund and support the expansion and development of Autism Services in New York City to ensure a sufficient number of professionals have the training, credentials and experience necessary to provide appropriate ABA to class members;
(xi) Directing Defendants to develop and implement specialized ABA- based training for teachers and paraprofessionals working with students with Autism;
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(xii) Directing Defendants to recruit, train, hire and fund qualified
individuals to supervise and deliver Autism Services;
(xiii) Directing the City Defendants to modify their special education data
system and form IEP to enable IEP teams to recommend Autism Services;
(xiv) Directing Defendants to promulgate new policies and procedures for
IEP meetings to ensure that IEP teams are trained to make individualized determinations, track
and review progress, and increase or modify services to address any lack of progress with regard
to Autism Services Class members;
(xv) Enjoining State Defendants from enforcement and implementation
of the ABA License Law with respect to class members; and
(xvi) Appointing an independent monitor to oversee Defendants’ compliance with the Court’s order.
(g) Issue a Preliminary and Permanent Injunction on behalf of the Section 504
NPS Subclass:
(i) Enjoining the policies, practices and procedures complained of herein; and
(ii) Directing the City Defendants to develop policies regarding Section
504 and to train their IEP team staff to consider and address requests for reasonable
accommodations for Additional Services, even if such services are not determined to be necessary
for a FAPE;
(h) Issue a Preliminary and Permanent Injunction on behalf of the Section 504
Autism Services Subclass:
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(i) Enjoining the policies, practices and procedures complained of herein; and
(ii) Directing the City Defendants to develop policies regarding Section
504 and to train their IEP team staff to consider and address requests for reasonable accommodations for Autism Services, even if such services are not determined to be necessary for a FAPE;
(i) Issue a Preliminary and Permanent Injunction on behalf of the Due Process
NPS Subclass, and the Due Process Autism Services Subclass:
(i) Directing the City Defendants to immediately pay and provide pendency services;
(ii) Directing the Defendants to develop policies, procedures and practices, well as sufficient staff resources to ensure immediate implementation of pendency services for subclass members;
(iii) Enjoining any provisions of the New York City Charter that prevent the City Defendants from implementing pendency to subclass members;
(iv) Directing State Defendants to immediately facilitate implementation of pendency services for subclass members, as well as enforceable agreements;
(v) Directing State Defendants to take appropriate steps under their supervisory power to facilitate immediate implementation of any order directing Additional
Services or Autism Services;
(vi) To the extent that IHOs continue to issue pendency order, directing
Defendants to set up: (1) procedures for IHOs to quickly and efficiently hear and determine
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uncontested pendency motions; and (2) procedures for IHOs to quickly and efficiently hear and
determine contested pendency motions and other emergency applications;
(vii) Enjoining the State Defendants from monitoring, sanctioning, or
otherwise pressuring IHOs with respect to timelines in cases in which both parties have agreed to
extend the appropriate timelines or to an adjournment, regardless of the reasons for their
agreement, in accordance with the IDEA;
(viii) Directing Defendants to develop policies and procedures to facilitate
the immediate implementation of pendency services for all subclass members;
(ix) Until such time as the backlog in the impartial hearing system is
addressed to ensure timely access to enforceable pendency mandates, designating a special master
or referee to hear contested and uncontested pendency and emergency applications involving the
risk of irreparable harm for Due Process Class members that cannot obtain a timely IHO
assignment;
(x) Directing IEP teams to recommend at least 20 hours of 1:1 ABA
instruction to class members with Autism who are entitled to a full-day program but who cannot
receive one due to shortages; and
(xi) Directing Defendants to expand the availability of appropriate NPS
Programs for subclass members that offer Autism Services during the day and after-school.
(j) Issue a TRO and Preliminary Injunction on behalf of all individual Plaintiff children who are being denied stay-put services;
(k) Issue a Permanent Injunction and Order with respect to all named Plaintiffs enjoining Defendants from applying the blanket policies, practices and procedures alleged herein;
(l) Issue a final Judgment on behalf of the Y.T. Plaintiffs:
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(i) Reversing the portions of the Y.T. I IHD and SRO Decision pursuant to which Plaintiffs were aggrieved as alleged herein;
(ii) Granting additional compensatory education and equitable relief in the form of Autism Services, related services of speech therapy and occupational therapy, assistive technology training and parent training; and
(iii) Directing the City Defendants to translate the evaluations, progress reports, assessments, and IEPs for Y.T. to the extent that they have not been translated.
(m) Award Plaintiffs their costs and attorneys’ fees; and
(n) Grant such other and further relief as may be appropriate.
DATED: May 1, 2020 THE LAW OFFICE OF ELISA HYMAN, P.C. ELISA HYMAN
/s/ Elisa Hyman ELISA HYMAN, ESQ.
1115 Broadway, 12th Floor New York, NY 10010 Telephone: 646/572-9064 646/573-9065 (fax) [email protected]
ROBBINS GELLER RUDMAN & DOWD LLP SAMUEL H. RUDMAN DAVID A. ROSENFELD 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: 631/367-7100 631/367-1173 (fax) [email protected] [email protected]
Attorneys for Plaintiffs
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