legal showdown

Lawsuit targets New York City program that strands poor students without required special ed services

PHOTO: Alex Zimmerman
Public Advocate Letitia James announced a report earlier this month criticizing the city's special education voucher program.

A program that makes New York City parents responsible for finding their own special education services — but that often leaves them with no services at all — is under legal attack.

The class action lawsuit, filed Thursday in a federal district court, aims to reform the city’s process for ensuring that students with disabilities receive “related services” — which include physical therapy, certain medical services and counseling, among other therapies.

When the city’s education department is unable to offer those services itself, or through a contractor, parents are given a voucher that can be used to pay an outside provider. But that system puts the onus on families to find providers, and about half of the 9,164 vouchers issued during the 2015-16 school year went unused, according to a report issued earlier this month by the public advocate’s office.

The lawsuit centers on the Bronx, where the problem is particularly acute. In District 8, which includes Hunts Point, Throgs Neck and Soundview, 91 percent of the 129 vouchers issued last school year went unused — the highest rate anywhere in the city.

The city’s public advocate found that families face a number of barriers to using the vouchers: They often struggle to find providers in their neighborhoods, have difficulty arranging for transportation and getting reimbursed to send their children elsewhere, or simply can’t find providers who are responsive.

In part because of those challenges, an attorney who helped bring the lawsuit said the city can’t simply offer a voucher to fulfil its obligation to provide special education services.

“The DOE has to ensure that students actually get [services]” said Seth Packrone, a lawyer at Disability Rights Advocates, which contributed to the public advocate’s report. “They can’t just issue a voucher and then step away.”

The goal of the litigation is to force the education department to come up with a plan to ensure that students in the Bronx receive the services they have been guaranteed, Packrone said. It is not yet clear what that plan could entail or how it could affect other neighborhoods, which also have large numbers of unused vouchers.

The complaint says the city’s voucher program violates multiple federal laws that guarantee students with disabilities a free and appropriate public education. The plaintiffs in the case are two Bronx students and Bronx Independent Living Services, a nonprofit that works with students who have disabilities.

Education department spokeswoman Toya Holness wrote in a statement: “We are dedicated to meeting the needs of students with disabilities and in the small percentage of cases when we issue a related service authorization, we work with families to connect them with an appropriate provider in their area.”

She referred questions about the lawsuit to a law department spokesman, who said the city is reviewing the complaint.

model of inclusion

New York City is placing students with disabilities in mainstream classes. But do they actually feel included?

PHOTO: Alan Petersime

Terell Richards languished at the public middle school in Queens for students with severe disabilities that he attended a few years ago.

It wasn’t just that he found the work so easy he sometimes fell asleep in the back of the classroom, his sister, Kya, said. It was also that he felt so out of place he would sometimes dissolve into tears.

“Just crying and saying how much he just felt like he was in the wrong place and completely lost,” said Kya, who helped her brother, now 19 years old, switch to a private school for students with special needs.

Now, New York City — and districts across the country — have started sending more students like Terell into classrooms alongside their non-disabled peers. But while some research has shown students with disabilities can perform better in mixed-ability settings, a crucial concern has been whether the new environment makes students with disabilities actually feel less isolated and out-of-place.

A new first-of-its-kind study based on surveys of more than 250,000 New York City middle-school students between 2007 and 2012 tries to answer that question.

The study comes with some important caveats: The surveys are conducted annually by the education department, meaning they weren’t written by the study’s authors nor did they oversee how they were administered. Also, the survey period ended just as the city was beginning its major push to move most students with disabilities out of separate classrooms.

It finds that middle-school students with disabilities tend to feel welcomed in schools with non-disabled peers, though their experiences vary by their type of disability. But, more surprisingly, special-needs students in separate classes don’t feel more excluded.

The study, which was funded by the Spencer Foundation, is set to appear in the peer-reviewed journal, Educational Researcher. Here are three big takeaways:

Students with disabilities generally feel included in mainstream schools.

The study tracks whether students feel included at over 500 traditional schools by looking at how students with disabilities and their non-disabled peers responded to five questions from the city’s annual survey: whether students feel welcome at school, whether students with disabilities are included in school activities, if teachers know students’ names, whether students are bullied, and whether they see harassment.

Generally, students with disabilities reported slightly higher levels of inclusion in school activities than non-disabled students, and feel only marginally less welcomed — though they also reported slightly higher levels of bullying and harassment.

About 60 percent of students with special needs either agreed or strongly agreed that students with disabilities are included in all school activities, about two percentage points higher than non-disabled students. A slightly smaller share of special needs students felt welcomed at school compared to students without disabilities — though 92 percent said they felt welcomed. (The patterns are relatively consistent even when controlling for differences in student characteristics like gender, race, or socioeconomic status.)

Advocates said they were both surprised and encouraged by those findings.

“We do worry that in the hands of an unskilled teacher that kids will not necessarily feel welcomed and they’ll still be separated out and made to feel different” said Maggie Moroff, a disability policy expert at Advocates for Children. “It’s pretty exciting to me to see that’s not necessarily true.”

Feelings of inclusion vary widely by disability type.

Although students with disabilities generally reported feeling about as included and welcomed as their peers, there are significant differences based on the type of disability a student has.

Those who were classified as having an “emotional disturbance” — often students who have significant behavioral problems — felt among the least included. They were about 4 percentage points less likely to report feeling welcome or included, compared to non-disabled students, and were also more likely to report harassment than students in any other disability category.

“The emotional disturbance kids are the ones who stand out in their classrooms,” said Leanna Stiefel, the study’s lead author and an economics professor at New York University, adding that they may feel less included because their disabilities are more difficult to hide.

But students with “low-incidence” disabilities such as multiple handicaps, autism, or intellectual disabilities reported more positive feelings than any other group. They were about 10 percentage points more likely than non-disabled peers to report that their schools include students with disabilities, and were slightly more likely to report feeling welcomed.

Students who are segregated based on ability don’t necessarily feel excluded.

Surprisingly, it made little difference whether students with disabilities were in “self-contained” classes — essentially classes comprised only of students with disabilities — or were in classrooms that included non-disabled peers: Both groups reported similar feelings of inclusion. (The findings don’t include students in District 75, a separate set of schools that are even less inclusive, since the schools themselves are only for students with disabilities.)

Moroff, the special education advocate, said the finding surprised her and noted it could reflect that students in more segregated settings aren’t necessarily aware of more inclusive models.

“It’s very possible there that there’s a level of interaction they’re not having,” Moroff said, “that they don’t even expect to be taking place.”

NEW DATA

To help students with physical disabilities navigate a maze of barriers, NYC releases new reports on high school accessibility

PHOTO: Cassi Feldman
Midwood High School is considered inaccessible to students with physical disabilities.

When Michelle Noris helped her son apply to public high schools, she knew the city’s directory would not be much use.

Since her son, Abraham, uses a wheelchair and the city’s official list of over 400 high schools contains little information about physical infrastructure, Noris knew she’d have to make phone calls and set up visits to find out whether cafeterias, auditoriums, and even front entrances could accommodate a wheelchair.

“I spent hours and hours on that,” said Noris, a former member of the Citywide Council on Special Education. “It felt like I shouldn’t have to do this.”

Now, after lobbying from Noris and other advocates, the city is starting to release more detailed information about how accommodating its high schools are for students with disabilities — an effort to reduce the burden on those students and their families to figure it out for themselves.

New online profiles indicate whether school bathrooms, gymnasiums, classrooms, libraries, hallways and other spaces are completely accessible on each floor, and if not, what barriers might be present.

They are meant to correct a major challenge for families seeking accessibility information about New York City’s high schools: 62 percent are deemed “partially accessible,” an ambiguous term that is supposed to mean students with disabilities can access “relevant programs,” but in practice gives little sense of the scope of accessibility issues. Just 13 percent of high school buildings are fully accessible, according to 2016 data.

A partially accessible school might have a ramp, but it’s connected to a service entrance designed to transport garbage rather than wheelchairs. A school could have an accessible bathroom, but it’s on the second floor. An auditorium might accommodate a wheelchair, but provide no access to the stage.

In recent months, the education department has posted on its website new “Building Accessibility Profiles” that offer such granular, crucial details — based on a 58-question survey conducted by department employees.

One Upper Manhattan school building, which houses New Design Middle School and two KIPP charter schools, earned one of the highest possible accessibility ratings. But its profile notes that the bathrooms might not be maneuverable; some stalls are missing grab bars; there is no braille signage throughout the building; and some of its hallway doors may be too heavy for students with limited upper body strength. (The reports do not differentiate between schools that share buildings, a concern among some advocates because students at each school may have different accessibility needs.)

For now, the profiles only exist for high school buildings in Manhattan, Staten Island and the Bronx, putting the city behind on its original schedule to have every high school profile available in time for this year’s application season. City officials said they plan to complete profiles for all partially accessible high schools by January, but could not offer a timeline for middle or elementary schools. (The decision to release more high school accessibility data comes almost two years after a scathing U.S. Department of Justice investigation revealed “inexcusable” accessibility problems in elementary schools.)

Experts largely praised the city for beginning to make the high school choice process less onerous for students with disabilities by offering them more information about physical accessibility.

But some also pointed out that the information is difficult to find. The city’s official high school directory only says whether schools are “accessible” or “not accessible,” a potentially misleading indicator given that most schools fall somewhere in between. And the city’s “School Finder” site, essentially a digital version of the directory, does not link to the new accessibility data, though a spokesman said that information will be included in future updates.

“This is all really, really valuable information,” said Maggie Moroff, a special education policy expert at Advocates for Children. “But if families don’t have a way of getting to it easily, it doesn’t do them a whole lot of good.”

The easiest way to get to the information is on the city’s Office of Space Planning website, which lists each school’s accessibility profile.

Still, there are significant upsides to the new data — and not just for parents.

More detailed information about building infrastructure could help the city better-allocate capital funding to schools that might only need modest improvements to become significantly more accessible, Moroff said. The city’s current five-year capital plan includes $100 million for such improvements.

“We work diligently with families and school communities to ensure every student has a seat at a school that meets their accessibility needs,” said education department spokesman Michael Aciman.

While Noris, the parent and disability advocate, said she would have loved the additional information when she was searching for a high school for her son, she’s glad her advocacy paid off. She used to carry around mock surveys to show city officials what kinds of information would have helped her, and even used the surveys to rate a few schools, partly to show that useful information about buildings could be extracted in under an hour.

So when Noris saw the data appear on the city’s website, she couldn’t help but feel like she played a role.

“My first reaction was, ‘Oh, they listened to me,’” she said. “I was very pleased.”