Settlement Offers Vouchers For Children Denied Services

I'm posting this a day late for it to be useful news -- you had to file by 6/30/08. Qualifying families went to hearing and got an order for services that weren't ever or weren't timely delivered. Nice work from Advocates for Children all the same.

NY Law Journal - 6/24/08 - p. 1
Settlement Offers Vouchers For Children Denied Services
By Daniel Wise
June 24, 2008

To settle a class action lawsuit, New York City has agreed to compensate the parents of New York City public school children with disabilities for services that were required by an administrative order but never provided.

The settlement, which provides for the issuance of vouchers for as much as $15,000, was announced yesterday by Advocates for Children of New York, the group that filed the class action in 2003.

Kim Sweet, the executive director of Advocates for Children, said that a "significant" portion of 9,000 administrative orders from December 2000 to January of this year directing that specified services be provided to disabled students had not been complied with.

Even with the monitoring required by the agreement, Ms. Sweet pointed out, the Department of Education is only required to comply with 75 percent of the administrative orders issued from this month through the end of November.

Jeffrey S. Dantowitz, a senior counsel at the city Law Department, said the fact that only 250 parents to date have filed claims indicates that his client, the Department of Education, "has done a far better job than the plaintiffs asserted in the lawsuit."

The deadline for parents to file forms requesting compensation is June 30. Southern District Judge Richard J. Holwell preliminarily approved the settlement in L.V. v. New York City Department of Education, 03-9917, in December and signed off on it on April 10 following a fairness hearing.

Claims forms were mailed to the class members in February along with notice of the April fairness hearing.

Under the federal Individuals with Disabilities Education Act, 20 USC §1400 et seq., local school districts are required to furnish disabled students with services needed to enable them to acquire an education on a par with their abilities. The law provides that when parents feel that a school district has not provided required services, they can request an administrative hearing that comports with due process.

In the L.V. case, the class consisted of parents who have sought or will seek hearings from administrative officers at the Department of Education on claims that the department had not provided services to their disabled children. In September 2005, Judge Holwell certified the case as a class action (NYLJ, Sept. 27, 2005) with the result that more than 8,000 parents have now been notified that they may be eligible for financial relief.

The types of services that disabled children may be entitled to under the law include, depending upon their disability, speech therapy, occupational therapy, vocational training and electronic devices that can enhance the learning process.

Unless an administrative order specifies otherwise, services must be implemented within 35 days.

The settlement, which is enforceable as a court order, provides for both prospective and retroactive relief. It also provides that the city will pay the class' attorney's fees but the amount of those fees has yet to be determined.

The lawsuit was brought by attorneys on the staff of Advocates for Children and from Milbank, Tweed, Hadley & McCloy, which worked on the case pro bono. Advocates for Children was formed in 1983 to improve public school education in New York City.

Parents who won administrative orders that were either never, or belatedly, implemented are entitled to one of two types of relief, depending upon the circumstances.

Those who paid for the ordered services are entitled to reimbursement for the sums they laid out.

Vouchers are to be issued to the parents of children who never received the services. The vouchers can be used to purchase services to make up for those that were never received, Ms. Sweet said.

It is anticipated that vouchers will usually be issued in the amount of $8,000 with amounts greater or less, depending upon the circumstances, with the maximum amount being $15,000, Ms. Sweet said.

Monitoring Required

Prospectively, the settlement provides that the Department of Education is to reach "benchmarks" in terms of complying with administrative orders. During the first six months that the settlement is in effect, from June 1 to next Dec. 1, the department is required to timely implement 75 percent of all orders issued.

The compliance rate required will climb to 91.5 percent for the two-year period from June 1, 2009 to May 31, 2011.

Pursuant to the agreement, the firm of Daylight Forensic & Advisory, based in New York City, has been hired to monitor the department's compliance with the performance levels set forth in the pact.

If the department fails to meet the compliance levels, it will be required to develop a remedial plan. Should compliance still fall short, the parents can return to court to request further relief.

In monitoring the department's implementation of individual orders, Daylight Forensic will determine whether any parent has not received full compliance with an administrative order, and letters to that effect will be issued to the parent.

To enforce compliance with an order, however, Ms. Sweet said, the parent must begin a new lawsuit in either federal or state court. In such a lawsuit, she added, a letter from Daylight Forensic will be sufficient to establish a lapse in enforcement, but the Department of Education will be permitted to rebut that conclusion.

The parent class was represented by Shawn Morehead, of Advocates for Children, and Douglas Henkin, a partner at Milbank Tweed.