Special Education Suit in New York Wins Class Action Status

Attorneys for New York students with autism and other disabilities claimed a major victory this week, after a federal judge granted class action status to a case that alleged the denial of education services. The ruling could affect more than 20,000 New York City students.

The original plaintiffs, eight New York City students and their parents, sued in 2013 to prevent the loss of services including individualized instruction, occupational therapy, speech therapy, and support staff. The class-action status granted by Judge Shira Scheindlin on Monday applies to 8,000 city students with disabilities who attend state-funded private schools and at least another 13,000 city children diagnosed with autism spectrum disorder who attend public and private schools.

“These are essential services that these students need and that they’re entitled to under the law,” said David Rosenfeld, an attorney representing the plaintiffs. “There’s no reason they should have to hire a lawyer, there’s no dispute they need them.”

For the children with autism, families challenged a city and state policy that denied three specific services: individualized instruction, after-school services and applied behavioral analysis, or ABA. This is an instructional strategy that’s been proven to be effective for children with autism spectrum disorder.

Judge Sheindlin found sufficient evidence that children weren’t given access to these services as a blanket policy, regardless of individual need. Federal law requires an individualized education program for children with disabilities, known as an I.E.P. That’s where Rosenfeld said the city and state both erred.

“We’re trying to say that each student has to be looked at as an individual,” he said. “And to say there’s a policy in place governing how students as a whole should be treated ignores that each child is supposed to receive an education that’s appropriate for them as an individual.”

Attorney Elisa Hyman, who also represents the eight city families, said the class action status was especially important for children with autism spectrum disorder because their numbers are growing.

“There is a limited menu available for them,” she said. “So we’re hoping that this case is a first step in trying to expand the menu of services available.”

Hyman is of counsel at the firm Friedman & Moses, while Rosenfeld is a partner with Robbins Geller Rudman & Dowd, which specializes in class actions.

The other class includes students with various severe disabilities who attend state-funded private schools because the public schools weren’t able to meet their needs. Many of these children received para-professionals and occupational therapists from outside agencies, paid by the city, because the schools lacked either the staff or funds.

Starting in 2012, the state required all of these services to be provided directly by the schools. Hyman said this put families in a difficult position.

One of her clients is the mother of an autistic boy attending the only state-funded private school on Staten Island for children with autism. He received after-school occupational therapy in his first year from an outside provider but had to fight to continue the services.

Hyman said she has to call for a hearing every year to maintain the child's services so they don't expire. But not all families know they can do this, she said, and have lost services. 

“Many parents do not understand their rights and do not have access to lawyers,” she said.

Nick Paolucci, press secretary for the New York City Law Department, said his office was aware of the judge's decision and was "moving ahead in the litigation." The state education department declined to comment.