What to Know
- According to the lawsuit, school districts across the nation have been improperly collecting federal education subsidies meant to fund things like physical therapy, occupational therapy, and speech therapy
- Traditionally, those services are provided in-person but COVID-19 precautions have prompted schools to cancel most hands-on learning; plaintiffs say the school districts shouldn't have kept the cash
- The lawsuit, filed in the Southern District of New York, names nearly every public school district in the United States, along with every state education agency, as defendants; about 500 families from 30+ states have joined
A federal lawsuit accuses New York City and thousands of other school districts of defrauding special needs students by depriving them of hands-on therapies during the pandemic.
According to the lawsuit, school districts across the nation have been improperly collecting federal education subsidies meant to fund things like physical therapy, occupational therapy, and speech therapy. Traditionally, those services are provided in-person but COVID-19 precautions have prompted schools to cancel most hands-on learning.
Plaintiffs say school districts shouldn’t have pocketed federal cash intended to support those therapies, once they opted to discontinue most in-person learning.
“Do I think you can provide three, four, five, six months of physical therapy without ever touching a child? That’s preposterous,” said Patrick Donohue, founder of the Brain Injury Rights Group, the nonprofit behind the lawsuit. “I think the New York City Department of Education fraudulently accepted federal funds for services that were not provided to these students.”
The lawsuit, filed in the Southern District of New York, names nearly every public school district in the United States, along with every state education agency, as defendants. So far about 500 families from more than 30 states have joined.
One of the plaintiffs is Fred Rodriguez, a father from Rockaway Beach who has been teaching his 10-year-old son Connor from home during the pandemic.
Connor, who has Down’s syndrome, has an Individualized Education Plan (IEP) guaranteeing him two sessions of occupational therapy, one session of physical therapy, and four sessions of speech therapy per week. Rodriguez said in the last six months, therapists have tried to provide those services online.
But he said the remote sessions have been ineffective.
“He’s not getting what his IEP says he’s supposed to get,” Rodriguez said. “There are many parents out there who I have spoken to who have not gotten any services whatsoever -- not even remote services, so someone is signing off that it is happening. And it’s not happening.”
Danielle Filson, a spokesperson for New York City Department of Education, said city educators got consent from special needs parents before swapping distance learning for hands-on therapies. She added that all of the remote therapies provided by city educators have been “live” instruction, not pre-recorded.
“We’re proud that we quickly set up live related services with parental consent in alignment with state and federal guidance for our most vulnerable students during a global pandemic,” Filson told the I-Team in an email. “We’re moving to dismiss this complaint.”
Though New York City’s policy has been to provide special education tele-therapy live and in real-time, Rodriguez and other parents say it hasn’t always worked that way in real life.
“There are many parents out there who I have spoken to who have not gotten any services whatsoever, not even remote services” Rodriguez said. “So someone is signing off that it is happening and it’s not happening.”
Last fiscal year, the federal government paid New York City about $89 million for special education services reimbursed through Medicaid. The NYC Department of Education is still in the process of preparing and submitting claims for tele-health therapies that were provided to special needs students after in-person schooling ended in March.
The plaintiffs argue substituting remote services for in-person therapies – and then billing Medicaid – would not only be a violation of civil fraud statutes but possibly criminal racketeering laws of the sort usually associated with organized crime cases.
“This is now beyond negligent. This is borderline criminal what is happening to these families,” Donohue said.
Although the special education lawsuit alleges violations of civil fraud statutes, the plaintiffs also suggest school districts could be guilty of criminal racketeering – the sort of charge usually associated with organized crime cases.
The U.S. Department of Justice declined comment on the lawsuit.
In April, U.S. Education Secretary Betsy DeVos declined to approve a waiver that would have allowed schools to suspend certain obligations under the Individuals with Disabilities Education Act (IDEA), the landmark legislation guaranteeing students with disabilities access to special education services.
When asked if she agreed with fraud claims in the federal lawsuit, DeVos declined to say.
“The Department cannot comment on the case at this time,” said Angela Morabito, a spokesperson for DeVos. She added that Devos strongly believes schools must find ways to educate special needs kids during the COVID-19 crisis.
“Secretary DeVos has been clear from the start of this pandemic that learning must continue for all students," Morabito added. "This is particularly important for students with disabilities who may receive specialized instruction and related services in school.”