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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT of NEW YORK X M.G Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 1 of 93 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 !"#$%&%'(")*+,(,#&#',* 1.! This complaint is being filed by parents of children with disabilities who live in New York City and who have or will have individualized education programs (“IEPs”) on behalf of themselves and their children (“Plaintiffs”) pursuant to the Individuals with Disabilities Education Improvement Act (the “IDEA”), 20 U.S.C. §1400, !"#$!%., 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, !"#$!%.#(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 - 1 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 3 of 93 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, &'"!(#)*&), 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. - 2 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 4 of 93 !(",%#+* 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 - 3 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 5 of 93 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, - 4 - Case 1:13-cv-04639-SHS-RWL Document 298 Filed 05/01/20 Page 6 of 93 although it appears in lawsuits and claims to be a “municipal” corporation.
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