The Super Lawyer distinction is given to only a very small percentage of Pennsylvania‘s attorneys each year.  Attorneys are only considered for inclusion in the list of top rated attorneys if they have attained a high degree of peer recognition and professional achievement across 12 indicators. Lawyers cannot buy their way onto the list. The selection process, recognized as legitimate by bar associations and courts across the United States, is multi-phased and includes independent research, peer nominations and peer evaluations. Only attorneys who can be retained by the general public are considered. Honorees are selected annually for each state and practice area.

In other news, Martindale-Hubbell has again recognized both Yatvin and Popper & Yatvin partner Howard D. Popper with the highest possible level of professional excellence – AV Preeminent. This peer review rating reflects a combination of achieving the highest General Ethical Standards and Legal Ability ratings.

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In 2013, the 8-year-old twins were enrolled as students in the School District. Both girls were non‑verbal, did not recognize danger, and would wander and elope unless constantly supervised.  Everyone agreed that each girl required a 1:1 assistant at all times through the school day, and the Individualized Education Program (“IEP”) for each child provided for such a full time 1‑1 assistant.  Nonetheless, the District failed to provide the girls with 1:1 assistants for many hours each school day.  Despite Parents repeated requests for full day 1:1 assistant for their daughters, no assignments were made.

On March 7, 2014, there was still no regular 1:1 assistant assigned to either of the twins.  At some point during the day, one of the girls eloped from class and then the school building. School employees were not immediately aware that she had disappeared. When they became aware, a search of the building ensued, but she was not found. Over an hour later, a 911 call was placed by someone who spotted her in a snowy field 7 blocks away from school. She was naked except for her jacket. She was picked up by the police and transported by ambulance to St. Christopher’s Hospital.

The Parents were distraught and outraged.  They consulted attorney Michael Basch, a highly respected Philadelphia special education attorney.  Basch was able to negotiate an agreement with the District whereby the twins were placed in a specialized approved private school setting. In addition, the girls were awarded a substantial amount of compensatory services.

The Parents could have left things there, as their daughters were safe.  However, they needed to know that if their daughters ever returned to public school in Philadelphia they would be protected.  They also wanted to do something to insure that no other parent of a child with special needs would suffer the frustration and fear they experienced. So, they brought in Philadelphia attorney Alan L. Yatvin, of Popper & Yatvin, to file suit in federal court. Yatvin is an experienced litigator of special education, disability and civil rights cases in federal court.

In January 2015, suit was filed against the District seeking damages and injunctive relief relating to the provision of 1:1 assistants.((KS and SFM v. School District of Philadelphia, E.D.Pa. No. 15-cv-237)) The suit asserted that, in order to save money, the District had a policy and practice of denying, reducing or eliminating 1:1 assistants to children who needed them. In so doing, the suit asserted, the District discriminated against students with disabilities who required, but were denied, full‑time 1:1 assistants, in violation of the federal Individuals with Disabilities in Education Act, the Rehabilitation Act, the Americans with Disabilities Act, and Pennsylvania law.

At the urging of the assigned judge, former United States District Judge Legrome Davis, the  parties began settlement negotiations aimed at addressing problems in the District’s system of identifying students who need 1:1 assistants and, once identified, insuring that the services are actually provided.  In meetings with the District’s then-General Counsel and the Office of Specialized Services, the parties developed systems to insure that IEP teams engage in the  proper analysis of whether students need 1:1 assistants and, once those teams have made that determination, insuring that there is no bureaucratic or financial interference with implementation of those legally binding determinations.

During the course of protracted negotiations the District undertook to improve its systems to recruit, fund and track the assignment of 1:1 assistants, and update its training of special education directors and school based staff on the considerations and role of an IEP team in determining the need for 1:1 assistants.

Finally, the parties reached an agreement that was approved by United States Magistrate Judge Timothy Rice on September 19, 2019.  In the settlement the District agreed:

1. The determination of whether or not a student needs 1:1 adult support is to be made at the school level by the IEP Team.
2. The District’s computerized IEP form was revised to include mandated, detailed questions related to 1:1 issues, and to incorporate a Worksheet for Determining 1:1 Assistance, which the IEP Team must complete if it indicates in the IEP that a 1:1 assistant is required.
3. When a 1:1 assistant is included in a student\’s IEP, the District must ensure that the assignment for a 1:1 assistant is made within ten days, and during the interim period, the school principal must use available resources to provide the services identified in the IEP.
4. In the event the District is unable to assign a 1:1 adult assistant within five school days, the Principal must give notice to parents, and an IEP Team meeting must be held within ten school days.

The settlement also included creation of a trust fund.

In discussing the settlement, Kathleen said: “Of course I’m glad there is a trust fund to help with my daughter’s many needs, but we would not have settled unless there was also a change in the District’s policies regarding 1:1 assistants.  No parent should have to experience the stress and frustration that we did in trying to get the District to provide a 1:1 assistant.  And no parent should ever get a call that their child was unsupervised at school, got lost and placed in grave danger. I hope this lawsuit has made lasting changes for all children with disabilities and their families.”

Since the settlement was finalized in September, IEP teams are better informed about their role in considering and assigning 1:1 assistants, the actual assignments are happening with fewer delays, and the agreed safety net seems to be working.

“The time this litigation took to bear fruit was frustrating,” said Alan Yatvin. “While we didn’t get everything we wanted, at the end of the day, important changes were achieved, and a broken system is now functioning for children in need.”

Yatvin and Basch both noted that Natalie Hess, the District’s Deputy Chief of Specialized Services, deserves much of the credit for this settlement.  “We respect Ms. Hess’ professionalism, hard work, and her ongoing commitment to improving the system for all special needs students who require 1:1 assistants.”

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All students with diabetes who are now or will be entitled to receive diabetes related care and attend New York City Department of Education schools.

The case, M.F., et al. v. The New York City Department of Education, et al., was brought by the parents of three New York City public school students with diabetes and the American Diabetes Association, suing as an organizational plaintiff on behalf of its members who who include children with Type 1 and Type 2 diabetes who attend New York City Department of Education (DOE) schools and their parents.

Popper & Yatvin partner Alan L. Yatvin is counsel for the American Diabetes Association, along with Sarah Fech-Baughman, Director of Litigation at the Association. The federal class action lawsuit filed on November 1, 2018, alleges that the New York City public schools routinely deny students with diabetes necessary services, even excluding them from some school activities altogether, in clear violation of their rights under Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the New York City Human Rights Law.  The suit was brought to address systemic failures, to ensure that students with diabetes can attend school safely and have access to the same educational opportunities as their peers. 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.

In granting class certification, Judge Gershon concluded that the three children and their parents, along with the American Diabetes Association, met the requirements for class representatives and sufficiently represented the class of approximately 2000 students with diabetes in DOE schools.   As a result, she appointed the families and the American Diabetes Association as class representatives. Yatvin’s co-counsel, attorneys for Disability Rights Advocates, were appointed class counsel.

Alan L. Yatvin 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.

The post Court grants class certification in suit against New York Department of Education on behalf of students with diabetes. appeared first on Law Offices of Popper & Yatvin.

The Super Lawyer distinction is given to only a very small percentage of Pennsylvania\’s attorneys each year.  Attorneys are only considered for inclusion in the list of top rated attorneys if they have attained a high degree of peer recognition and professional achievement across 12 indicators. Lawyers cannot buy their way onto the list. The selection process, recognized as legitimate by bar associations and courts across the United States, is multi-phased and includes independent research, peer nominations and peer evaluations. Only attorneys who can be retained by the general public are considered. Honorees are selected annually for each state and practice area.

In other news, Martindale-Hubbell has again recognized both Yatvin and Popper & Yatvin partner Howard D. Popper with the highest possible level of professional excellence – AV Preeminent. This peer review rating reflects a combination of achieving the highest General Ethical Standards and Legal Ability ratings.  2019 marks Yatvin’s 36th year as an attorney.

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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.

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Mr. Aimé Kilolo Musamba

Bemba was represented in this Main Case at the ICC by Aimé Kilolo Musamba (Kilolo), a lawyer from DRC, who is also a French speaking member of the Brussels Bar.

In November of 2013, Mr. Kilolo and three other members of the Bemba defense team were arrested. Bemba was already in custody on the main case. Mr. Kilolo remained in custody in The Hague, seat of the ICC, for the next 11 months. Kilolo and the others were charged a few weeks later with offences against the administration of justice. Essentially, this case was about witness and evidence tampering.

Trial commenced in September of 2015 and concluded the following May. The judgment convicting all five accused was delivered in October 2016. Mr. Kilolo, specifically, was convicted of corruptly influencing witnesses, presenting false evidence and inducing false testimony.

At this point, Mr. Kilolo requested and received the appointment of Michael G. Karnavas as his counsel for sentencing and any potential appeal. Karnavas is a longtime friend and colleague of Popper & Yatvin partner, Alan L. Yatvin.

The two met while teaching trial advocacy at the Cardozo School of Law in New York in the late 1980’s, when Yatvin was a Philadelphia Defender and Karnavas was an Alaska Public Defender.

Michael G. Karnavas

(( Karnavas has since gone on to develop an international criminal law practice, and is considered one of the preeminent defense lawyers in the field)) In putting together the Kilolo defense team, Karnavas invited Yatvin aboard to serve as Senior Legal Consultant. Karnavas believed that Yatvin’s experience as an active and experienced trial and appellate lawyer, as well as his experience representing lawyers on matters related to ethics and professional responsibility, coupled with his international criminal law experience at the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, and the so-called Khmer Rouge Tribunal (Extraordinary Chambers in the Courts of Cambodia) in Phnom Penh, Cambodia, made him a valuable addition to the team.

Alan L. Yatvin argues before the ICTY in 2006

Sentencing was briefed and argued, and the judgment of sentence was delivered on March 22, 2017. Mr. Kilolo was sentenced to two and one-half years of imprisonment, with credit for time served and the remaining period of imprisonment suspended. He was also ordered to pay a fine of 30,000 Euros.

The Prosecutor appealed all the sentences, while the co-accused appealed their convictions. Mr. Kilolo did not appeal.

After extensive briefing, the ICC Appeals Chamber issued its judgment in March of 2018, finding that there was no authority for suspending sentence under the ICC’s legal framework and reversing certain of the grounds on which the sentences were based, but vacating one-third of the convictions. The matter was then remanded to the Trial Chamber for resentencing.

The Kilolo defense team briefed the issues on resentencing and prepared for oral argument on re-sentencing.

Then, on June 8, 2018, after a 10-year odyssey of proceedings in the main case, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Bemba was acquitted by the ICC Appeals Chamber of all charges. Simply put, the basis of the acquittal was grounded in the Prosecutor’s failures in charging and presentation of evidence.((Responding to the many critics on the soundness of the appeal judgement, Karnavas posted an analysis of it on his blog)) The ICC Prosecutor, Madam Fatou Bensouda, responded with a public statement, criticizing the Majority for departing “from the traditional model of appellate review of factual errors,” replacing it “with new, uncertain and untested standards,” and for departing “from the Appeals Chamber’s previous jurisprudence, as well as international practice, in relation to the manner in which the Prosecution ought to charge cases involving mass criminality.” The criticism by the Prosecutor was rejected by the President of the Court, who reminded the Prosecutor that:

It will continue to be the case that all judgments and decisions by the judges of the Court are taken in accordance with the fundamental principle of judicial independence, consistently with the solemn undertaking of each judge to perform his or her duties ‘honorably, faithfully, impartially and conscientiously’… When judges acquit or convict, it is because those core principles direct them to do so. And it is hoped that it is consideration of those core principles that should guide any post-judgment statements by a party or participant in the case – be it the Prosecutor, the Defence or Counsel for Victims

In a further attempt to blunt the criticism of the Prosecution in the Main Case, on the eve of the scheduled sentencing hearing, the Prosecutor made submissions in support of resentencing asserting that Bemba’s acquittal by the Appeals Chamber was a result of the witness tampering conduct. The re-sentencing hearing was held on July 4, 2018, after which Mr. Kilolo and the other convicted persons were given leave to respond to the Prosecutor’s submission.

On September 17, 2018, the Trial Chamber issued its judgment of sentence. Immediately following the re-sentencing judgment, Mr. Karnavas described how gratified he was by the sentencing judgment:

As I sat there listening to the presiding judge read a summary of the judgment, I was surprised and pleased to hear the chamber adopting many of the arguments we had made on key issues in our briefs and at oral argument.

Specifically, the Trial Chamber completely rejected the Prosecutor’s argument that Bemba\’s acquittal by the appeals chamber in the main case was a result of the witness tampering conduct, stating that the acquittal of Bemba in the main case appeal “has no impact on the sentences to be imposed” and that the “Prosecution manifestly fails to establish any causation between what the Three Convicted Persons were convicted of and the outcome of the Main Case…”¹. Additionally:

The Chamber is not persuaded by the Prosecution’s arguments to the extent that, now that the suspended sentences are not possible, none of the considerations justifying them have any further merit. The Chamber based its decision to suspend sentences on Mr Kilolo and Mr Mangenda’s individual circumstances – their personal circumstances, good behaviour throughout the proceedings, and the consequences of incarceration on their families/professional life. There is no indication that any of these individual circumstances no longer apply. The Kilolo and Mangenda Defence instead offer further proof bolstering the Chamber’s original findings.((Re-Sentencing Judgment, ¶¶ 51)).

The Trial Chamber also rejected the Prosecutor’s argument that the reversal of convictions on 14 of the charges should have no effect on the sentences because the conduct overlaps. The Trial Chamber explained:

The Chamber did not mechanistically conclude that the overlapping conduct led to the Article 70(1)(b) convictions having no impact on the joint sentence. Every conviction mattered in the Chamber’s individualised determinations.

Accordingly, the Trial Chamber found that because it had considered the cumulative effect of the convictions in imposing the original sentence, it was required to accord some weight to the fact that 14 of those convictions have been reversed.

Finally, the Trial Chamber considered the fact that even though the suspended period of incarceration no longer had any legal effect, the fact that Mr. Kilolo had been on de facto probation and had abided by all the terms of his suspended sentence, and behaved constructively and cooperatively. These, the Trial Chamber concluded required consideration as part of Mr. Kilolo’s individual circumstances, an essential element of sentencing under ICC law.

As a result, Mr. Kilolo was sentenced to the 11 months incarceration he had already served, and the same fine imposed in 2017. Time served sentences and the same fines were also imposed on the others.

The Prosecutor has 30 days from the date of the sentencing judgment to decide whether to appeal, but for now, the core rationale of the original sentence is preserved, while Mr. Kilolo, who has paid the debt for his conduct not just through incarceration, but in many other financial, personal and professional ways, is free to move on with his life.

In commenting on Yatvin’s contributions to the appeal and resentencing, Karnavas stated:

Alan is a lawyer’s lawyer. His work in testing our assumptions, insisting on clarity in our prose, and adding punch to our arguments, was an invaluable element of our success in obtaining and preserving an appropriate sentence for Mr. Kilolo.

Update 21 October 2018:  The Office of the Prosecutor allowed the deadline to pass without filing an appeal of Mr. Kilolo’s sentence.

1. Re-Sentencing Judgment, ¶¶ 22, 25

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The Super Lawyer distinction is given to only a very small percentage of Pennsylvania‘s attorneys each year.  Attorneys are only considered for inclusion in the list of top rated attorneys if they have attained a high degree of peer recognition and professional achievement across 12 indicators. Lawyers cannot buy their way onto the list. The selection process, recognized as legitimate by bar associations and courts across the United States, is multi-phased and includes independent research, peer nominations and peer evaluations. Only attorneys who can be retained by the general public are considered. Honorees are selected annually for each state and practice area.

In other news, Martindale-Hubbell has again recognized both Yatvin and Popper & Yatvin partner Howard D. Popper with the highest possible level of professional excellence – AV Preeminent. This peer review rating reflects a combination of achieving the highest General Ethical Standards and Legal Ability ratings.  2018 marks Yatvin’s 35th year as an attorney.

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Yatvin then worked with ADA staff to build and publicize an on-line petition based on the resolution, seeking transparency in the insulin supply chain and affordable insulin.  The petition also called on Congress to hold hearings to identify the reasons for the dramatic increases in insulin prices and to act to ensure all people who need insulin have affordable access to this lifesaving medication.  The Stand up for Affordable Insulin Petition, has garnered over 300 thousand signatures and is the ADA’s most successful petition.

The ADA then convened a successor multi-disciplinary working group in the spring of 2017.  This working group, chaired by ADA Chief Scientific, Medical and Mission Officer, Will Cefalu, MD, included Yatvin and then-ADA President of Science and Medicine, Alvin C. Powers, MD, along with experts in healthcare economics, the pharmaceutical industry, health policy, and healthcare delivery.  The work was supported by highly knowledgeable ADA staff.(( Of particular note are: LaShawn McIver, MD, MPH, Senior Vice President, Government Affairs & Advocacy; Meghan Riley, Vice President, Federal Government Affairs; and Krista Maier, Vice President, Public Policy & Strategic Alliances.))

Over the course of a year, the Working Group reviewed available public information on insulin prices and convened numerous meetings with stakeholders in the insulin supply chain, in an effort to understand that supply chain and the reasons for increases in the price of insulin.  On May 8, 2018 the Working Group\’s white paper, Insulin Access and Affordability Working Group: Conclusions and Recommendations, was published in the on-line edition of Diabetes Care and will appear in the journal’s June edition.

On that same date, Dr. Cefalu appeared before the United States Senate Special Committee on Aging, at a hearing, titled Insulin Access and Affordability: The Rising Cost of Treatment. Dr. Cefalu gave testimony about the Working Group’s process and conclusions. He was joined by patient advocates Paul Grant from Maine and Lois Ondik from Pennsylvania as well as Jeremy Greene, MD, PhD, of the Johns Hopkins University Department of the History of Medicine.  The hearing can be viewed on the Committee’s website.

Almost 30 million children and adults in the United States have diabetes.  Six million of those Americans use insulin.  Between 2002 and 2013, the average price of insulin has nearly tripled.  Popper & Yatvin partner Alan  L. Yatvin is proud to have contributed to the ADA’s efforts to shed light on insulin pricing and to find ways to insure affordable insulin for all who need it.

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Marc’s essay, Sex-Shamed To Death: How Oklahoma Prosecutors Used Sex And Infidelity To Put A Woman On Death Row, was published on October 10, 2017, by IN JUSTICE TODAY, a publication of Harvard’s Fair Punishment Project.

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The Court had previously found that Ridley had shirked its responsibility under the IDEA to fund Emily’s “stay-put” placement at the Benchmark School.  This time Yatvin was arguing that Emily’s parents were entitled to recover their attorney’s fees as “prevailing” parties under the IDEA.

On August 22, 2017, a three judge panel unanimously ruled in favor of Emily’s parents, concluding that they were, in fact, prevailing parties entitled to attorney’s fees because they had required Ridley to fund Emily’s educational placement. The Court of Appeals remanded the case back to the District Court to determine the amount of those fees.

In a nod to Yatvin’s work, the Court of Appeals wrote in the final footnote:

“[W]e note that the litigation here was conducted by highly qualified and experienced counsel and was itself extensive and protracted…”  M.R. v. Ridley School District, footnote 9.

Read more about the history of this case in our prior post:  Yatvin defeats certiorari in U.S. Supreme Court, preserves special education victory.

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