Mayerson & Associates.

"BACK TO SCHOOL" CLASS ACTION LAWSUIT FILED IN FEDERAL COURT ON BEHALF OF THOUSANDS OF DISABLED CHILDREN IN NEW YORK CITY

Plaintiffs representing thousands of similarly situated children with disabilities in New York City have filed a class action lawsuit in federal court against the New York City Department of Education ("NYCDOE") and schools Chancellor Joel Klein.

The class action lawsuit, filed in the United States District Court for the Eastern District of New York in Brooklyn, charges that the NYCDOE is systematically victimizing children with disabilities by failing and refusing to provide "pendency" intervention services that are required to be provided automatically under the federal Individuals with Disabilities Education Improvement Act ("IDEIA"). The plaintiff class seeks injunctive relief, as well as millions of dollars in monetary damages.

Each year, as the complaint alleges, more than 5,000 families of children with disabilities file requests for hearings with the DOE's Impartial Hearing Office. Federal law requires that when a dispute arises between the Department of Education and the parents of a child with a disability, the child is to continue with his or her current program of services "pending" the resolution of the dispute. Under the IDEIA statute, the pendency entitlement, also known as "stay put," is considered to be automatic.

The complaint alleges that New York City was automatically honoring "pendency" entitlements until August of 2005. Commencing that month, however, the DOE began to force children with disabilities to go through time-consuming hearings and other allegedly unnecessary procedural hurdles before pendency rights would be honored. The DOE also allegedly underpaid hearing officers in a way to leave them with little financial incentive to adjudicate pendency issues. According to the plaintiffs, the result was that, during the 2005-2006 school year, millions of dollars of pendency entitlements were systematically delayed or denied. Now, say the plaintiffs, the NYCDOE is poised to do the very same thing for purposes of the 2006-2007 school year.

The lawsuit seeks an injunction to enjoin the NYCDOE from refusing to timely honor pendency entitlements as an automatic statutory right. The lawsuit also is asking the court to appoint a special master to ascertain the value of the "pendency" services that should have been provided to the plaintiff class.

Gary Mayerson, the attorney for the lead plaintiff class, said: "Pendency is an automatic and unconditional statutory entitlement that protects all children with disabilities. The Department of Education is improperly balancing its budget on the backs of children with disabilities by evading compliance with the recognized statutory requirements. It is shameful that anyone would need to bring a federal lawsuit to force the Department of Education to comply with what are supposed to be automatic and unconditional statutory rights. We are hopeful that the Department of Education will reconsider its position before it causes further damage."

Recent media coverage is available from The Daily News and The New York Post.

A copy of the complaint is also available.