This article was published on Chalkbeat New York by Pooja Salhotra on August 4, 2021.
A federal district judge has approved a settlement agreement between the education department and disability rights advocates in the Bronx, resolving a four-year-old lawsuit that challenged the city’s process for allocating certain special education services.
The settlement, in effect for three years, requires the education department to make a series of changes to the way it provides what are called “related services,” which include occupational therapy and mental health counseling, among other supports for students with disabilities.
Many schools do not have enough on-site staff to provide these services to all the students who are entitled to them. When that happens, schools can give parents a voucher to cover the cost of the service. But a number of barriers prevent parents from using vouchers. Families sometimes struggle to find providers willing to travel to their neighborhoods, for example, and many providers are simply unresponsive or not taking on more clients.
As a result, vouchers are often left unused. About half of the 9,154 vouchers issued went unused in the 2015-16 school year, according to a report from the public advocate’s office. The voucher system disadvantages poor neighborhoods the most, particularly those in far-reaching corners of the city that are more difficult for providers to access.
A 2017 class-action lawsuit brought by nonprofit Bronx Independent Living Services and two students with disabilities in the Bronx challenged the voucher system. The lawsuit argued that the education department was failing to provide appropriate related services and violated the law.
Last month — four years after the initial lawsuit — a judge authorized a settlement that applies to students in the Bronx who have Individualized Education Programs, or IEPs. The agreement does not remove the voucher program altogether, but it does include policies meant to reduce the city’s reliance on that system.
The education department must increase the number of occupational therapy supervisor positions in the Bronx from three to five, for example. It will also increase funding by 25% for a loan forgiveness program to attract university students studying to become related services providers to the education department. Hiring decisions must also be made earlier, ahead of the fall semester.
“The focus is on moving the hiring up earlier in the summer with the hope that this can allow the DOE to better plan their needs for the upcoming school year,” said Rebecca Serbin, staff attorney for Disability Rights Advocates, which served as the plaintiffs’ counsel in the lawsuit.
Other policies in the agreement are meant to make the voucher system work more efficiently for families in the Bronx. In some cases, students wait weeks to receive their vouchers, which in turn delays the start of their services. The settlement outlines detailed timelines for issuing vouchers. (In most cases, they are to be delivered within 16 days of when school starts.)
Schools are also required to appoint a non-school-based “related service authorization liaison” whose job is to support parents in using their vouchers or getting make-up services. The education department must also ensure the provider list is accurate and updated.
“It’s vitally important to our community that they are able to access the services they need when they need them,” said Brett Eisenberg, executive director of Bronx Independent Living Services, a nonprofit that served as a plaintiff in the case and works with students with disabilities. “This agreement really makes sure that happens.”
The settlement comes at a time when the education department has been struggling to provide adequate services to students with disabilities across the five boroughs. During the pandemic, staffing shortages and virtual learning meant thousands of students missed out on crucial services, such as physical and occupational therapy, that were difficult to administer virtually.
In an acknowledgment of those disruptions, city officials announced an intensive effort to help students with IEPs. All of those students, roughly 200,000, are eligible for special programming after school and on Saturdays.
A Saturday programming option is also laid out in the settlement agreement. Bronx students who are eligible for make-up related services can make use of “Saturday Sites,” which will offer occupational therapy and speech therapy. For all other make-up related services, the education department will make alternative arrangements.
In a statement, the education department recognized the settlement as progress for students with disabilities.
“It is critical that the needs of all students with disabilities are met, and we’re pleased to have reached this settlement through which we will invest in new programs, processes and resources that will make it easier for families to get support,” education department spokesperson Katie O’Hanlon wrote in an email. “We look forward to the progress and real results students will experience as a result of the settlement.”
Still, some question whether the agreement goes far enough in addressing the problems with the voucher system.
Lori Podvesker, a policy expert at INCLUDEnyc, an advocacy group that focuses on special education, noted that to receive make-up services, families must request the education department, a process that puts the burden of accessing services back on parents.
“It’s outrageous that they are putting the onus back on families,” said Podvesker. She added that she’d like to see the obligations in the settlement document expanded beyond the Bronx to the other four boroughs.
“These issues are not just limited to the Bronx,” she said. “This is pervasive.”
