Popper & Yatvin partner Alan L. Yatvin is serving as co-counsel in a federal class action lawsuit filed on November 1, 2018, alleging the New York City public schools routinely violate the rights of students with diabetes by denying them necessary services and even excluding them from some school activities altogether. Almost two months into another school year, many parents of children with diabetes still face the impossible choice of sending their child to school without knowing whether their child will receive the necessary diabetes-related care or keeping them at home.
Disability Rights Advocates (“DRA”), the American Diabetes Association (“ADA”), and Law Offices of Popper & Yatvin are suing the New York City Department of Education (“DOE”) and other New York City agencies for their systemic failure to ensure that students with diabetes can attend school safely and have access to the same educational opportunities as their peers. This constitutes a clear violation of Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the New York City Human Rights Law.
By law, the DOE is required to develop a diabetes-care plan for all students with diabetes. These plans include protocols for measuring a student’s blood sugar, administering insulin, and planning for emergencies—necessary accommodations for anyone with type 1 diabetes. But these care plans are rarely ready by the first week—or even first few months—of the school year. Even after the plans are in place, students continue to miss critical instructional time when they are unnecessarily removed from the classroom for diabetes-related care that could be provided in the classroom. Frequently, the DOE refuses to extend these accommodations to after-school programs, field trips, and other academic enrichment opportunities, as the law requires. Their parents are often required to attend school or programs to provide care themselves.
Plaintiffs the American Diabetes Association and several children with diabetes who attend public schools in New York City and their parents, are suing to remedy this unjust and discriminatory situation. The DOE estimates that at least 2,000 students with diabetes attend New York City public schools. By law, the DOE’s obligations to these students are very clear: Provide routine and necessary diabetes-related care for students with diabetes in the appropriate setting based on the individual preferences and needs of the child, as well as during nonacademic and extracurricular activities, regardless of whether those activities occur before, during, or after the school day. Shifting the burden of care to parents during the school day or school-related activities is unacceptable.
“We filed this class action lawsuit for not only our son, but to see positive change for all children with diabetes in New York City public schools,” said plaintiff Yelena Ferrer. “We greatly appreciate school staff’s effort to provide day to day care for our son, but the wide ranging problems with the DOE have not allowed for our son and many others to be safe at school.”
“Diabetes care is routine but absolutely critical for a child to be safe at school,’” Sarah Fech-Baughman, Director of Litigation at the ADA, said. “Excluding a child from class time or an academic enrichment opportunity, such as a field trip, because they have diabetes is harmful, stigmatizing, and unlawful. The ADA is standing up for all children with diabetes in New York City public schools to fix these system-wide problems.”
Plaintiffs do not seek monetary damages. Rather, the lawsuit seeks an immediate overhaul of the DOE’s systemic policies and practices governing the delivery of diabetes-related care to ensure that all students with diabetes receive appropriate care and can participate in all school programs.
The lawsuit was filed in the United States District Court for the Eastern District of New York.
Yatvin, who is serving as co-counsel for the American Diabetes Association in the suit, is a former national chair of legal advocacy for the Association, and a former member of the Association’s national board of directors. He is a co-author of Diabetes Care in the School Setting: A Position Statement of the American Diabetes Association and Care of Young Children With
Diabetes in the Child Care Setting: A Position Statement of the
American Diabetes Association, both of which were published in the journal Diabetes Care. He frequently represents students with diabetes and their parents and speaks on the rights of students with diabetes to groups of parents, medical professionals, lawyers, educators and legislators.