Lawsuit claims special needs kids not getting proper education during pandemic

It's the first legal challenge in the nation to demand what's called a “pendency voucher,” which would provide funding for families to hire private aides in school districts not yet open full-time.

News 12 Staff

Oct 1, 2020, 2:56 PM

Updated 1,391 days ago

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Nearly seven million American children with disabilities are trying to navigate school during the pandemic. The consequences for some can be devastating. And a new lawsuit is raising questions about whether or not their civil rights are being violated.
The mother of Grady Witkowski, a 10-year-old boy with Down Syndrome from Orange County, says her son isn’t getting the services he needs. She says a virtual return to school this fall has left her son without the one-on-one services he's legally entitled to. "At this point he has zero access to his education…we're seeing regression." The family created a video that in which they say their pleas have fallen on deaf ears.
Other families across the tri-state in a similar situation are trying out a different approach and are taking their the fight to federal court.
“We had testimonials from parents being sent to the district, and it was being ignored.” Before the pandemic, Dustin Tobacco's mom says her teenage son with Austim was thriving at his Middletown, New Jersey school district. ”He was doing so well. He was playing football. He was on the wrestling team.” But without any in-person instruction, she says five years of progress, unraveled in less than five months. “To see behaviors emerge that we haven't seen in so long, it's heartbreaking.”
So she signed onto a class-action lawsuit alleging school districts nationwide are illegally denying services to special needs children that are federally mandated, through individualized education programs, known as IEPs. It's also the first legal challenge in the nation to demand what's called a “pendency voucher,” which would provide funding for families to hire private aides in school districts not yet open full-time.
New York City attorney Patrick Donohue, whose own daughter has a traumatic brain injury, says the suit began with a few families across New York and New Jersey. But then horror stories started pouring in from across the country. “One parent is a single mom who has two autistic children, she had to quit her job…It's really pulled back the scab of what millions of families go through every year. And it's insane that you have a federal law that's supposed to protect them, but they're basically ignoring the rights of these families.”
Now, there are 500 plaintiffs from 35 states, including 214 from New York, 48 from New Jersey and 18 from Connecticut. “Towards students with disabilities that there is an overall opinion among a lot people that they matter less. And I think that the pandemic and the closure shed light on that. I think it shed light on a lot of discrimination and bigotry that exists in the educational systems,” says Donohue.
The Connecticut State Department of Education responded, "There has been no alleviation of idea (individuals with Disabilities Education Act) requirements during the pandemic, however there are inherent challenges that exist in the implementation and delivery of services within the context of public health mandates."
The New York State Education Department mandates each school district "must address the provision of FAPE (free appropriate public education) consistent with the need to protect the health and safety of students with disabilities and those providing special education and services.”
However, special education teachers have expressed concerns to News 12 that the physical connection required during their sessions leaves them at risk.
Meanwhile, parents must balance their concern over the possibility of infection against the certainty that their children are being left behind during each passing day.


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