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.

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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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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.¹

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.

1. 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.

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Insulin isn’t just a drug.

Insulin isn’t just a drug. It’s the difference between life and death for millions of people with diabetes—and it’s something they will need every day for the rest of their lives. When you or someone you love needs insulin and cannot afford it, the choices are scary. As the cost of insulin continues to rise, more of us, our family members, our friends and our neighbors are rationing their insulin or doing without other necessities to pay for this lifesaving drug. This is unacceptable. It’s time to stand together and call for change. The American Diabetes Association’s Board of Directors unanimously passed a resolution calling for immediate action by Congress and by all of the parties involved in the insulin supply chain to ensure affordable insulin for everyone who needs this lifesaving medication. But to make sure that call is heard by those with the power to make a difference, we need you. Add your name to the petition and join the Association to support those struggling with access to insulin. Once you’ve signed on, help us spread the word. Real change can only happen when we raise our voices together. Here’s how you can help: 1.  Share the petition with your social media community. Tell them why it matters and invite them to join you in this fight. 2. Email your friends, family, neighbors, co-workers and classmates to tell them how important it is to keep insulin affordable, and ask them to add their voices to this call to action at stopdiabetes.com/insulin 3. Know other organizations that have a stake in making insulin affordable? Ask them to join us, and make this call for change even stronger. Let’s send a message that the rising cost of insulin, and the lives of those who depend on it, cannot be ignored. Alan L. Yatvin Member, Board of Directors American Diabetes Association

SIGN THE PETITION

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American Diabetes Association Celebrates Signing of Pennsylvania School Diabetes Care Law

Legislation protects the rights of students with diabetes to safe care at school and access to activities

Alexandria, VA (July 18, 2016) – The American Diabetes Association today celebrates the passage of Pennsylvania school diabetes care legislation ensuring that children living with diabetes have a support system in place that allows them to be medically safe at school and have the same educational opportunity as their peers. The legislation, part of House Bill 1606, was signed into law Wednesday, July 13 by Governor Tom Wolf. It is effective immediately and allows for non-nursing school staff to be trained to provide routine and emergency care for students with diabetes, and also supports students who are able to independently self-manage their diabetes.

“The new school diabetes care law will be tremendously helpful in ensuring students with diabetes in Pennsylvania receive appropriate care at school and can safely participate in all school-sponsored activities,” said Philadelphia attorney Alan L. Yatvin, member of the American Diabetes Association’s national board of directors and former legal advocacy chair. “Pennsylvania families will now have comfort in knowing their children are safe at school. Too often, there are gaps in the care students with diabetes receive at school. It is terrific that Pennsylvania has joined the great majority of states by adopting a safe and sensible solution that allows school staff to be trained to provide and assist with diabetes care.”

Nearly 208,000 children in the United States are living with diabetes and require constant management of their disease, particularly during the many hours they spend at school, on field trips, or in extracurricular activities. It is critical for children with diabetes to have a safe school environment where a trained adult is available at school to help with daily and emergency diabetes care. Through the American Diabetes Association’s Safe at School campaign, legal and grassroots advocates across the country continue to work diligently to address and remove barriers to diabetes care at school.

In Pennsylvania, health care and legal professionals joined forces with advocates throughout the state to champion Safe at School legislation, including Alan Yatvin, Children’s Hospital of Philadelphia pediatric endocrinologist Dr. Steve Willi, St. Christopher’s Hospital for Children pediatric endocrinologist Dr. Elizabeth Suarez, Harrisburg advocacy chair Robb Wilson, Penn State Children’s Hospital pediatric endocrinologist Dr. Margaret D’Arcangelo, Children’s Hospital of Pittsburgh diabetes program coordinator Marilyn Clougherty, and executive director of the University of Pittsburgh Diabetes Institute Linda Siminerio.

“We are extremely grateful to our legislative champions, Representative Matt Baker and Senator Patrick Browne, as well as the many volunteer advocates who were vital to our efforts,” said Yatvin. “The passage of legislation in Pennsylvania marks a major victory for children living with diabetes and their families.”

The passage of the school diabetes care law means that Pennsylvania now meets all three tenets of the American Diabetes Association’s Safe at School campaign, providing students with equal and fair access to all school activities. These tenets require schools to:

· Allow trained school staff members to administer insulin;

· Allow trained school staff members to administer glucagon; and

· Allow capable students to self-manage their diabetes while at school.

About the American Diabetes Association
The American Diabetes Association is leading the fight to Stop Diabetes® and its deadly consequences and fighting for those affected by diabetes. The Association funds research to prevent, cure and manage diabetes; delivers services to hundreds of communities; provides objective and credible information; and gives voice to those denied their rights because of diabetes. Founded in 1940, the Association’s mission is to prevent and cure diabetes, and to improve the lives of all people affected by diabetes. For more information, please call the American Diabetes Association at 1-800-DIABETES (1-800-342-2383) or visit diabetes.org. Information from both of these sources is available in English and Spanish. Find us on Facebook (American Diabetes Association), Twitter (@AmDiabetesAssn) and Instagram (@AmDiabetesAssn).

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The broadcast will repeat that night at 11pm ET. After that it will be online on SiriusXM’s On Demand feature for the next seven days, channel 111. If you do not have a SiriusXM subscription, an alternative is linking to the 30-day free trial subscription to SiriusXM.

Alan Yatvin has represented numerous families of students with diabetes who faced discrimination because of their medical condition. He served as the American Diabetes Association (ADA) national chair of legal advocacy from 2010 – 2013.  He is currently a member of the ADA Board of Directors.

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The purpose of this position statement is to provide diabetes management recommendations for students with diabetes in the elementary and secondary school settings. The statement also addresses legal protections for young people with diabetes and how they can be provided a safe school and child care environment. This includes the provision of care during the school day, field trips, and all school-sponsored activities in the school setting and in preschool, day care, and camp programs.

One of the American Diabetes Association’s principal concerns is protecting the rights of children with diabetes to have equal educational opportunity, to remain free from discrimination based on diabetes, and to have access to a free appropriate public education, including the diabetes care services they need in order to remain safe at school. The ADA opposes policies and practices that discriminate against students with diabetes based on their disability.

Alan Yatvin has represented numerous families of students with diabetes who faced discrimination because of their medical condition. He served as the ADA’s national chair of legal advocacy from 2010 – 2013.  He is currently a member of the ADA Board of Directors.

Yatvin was previously a member of the writing group for the September 2012 Care of Young Children With Diabetes in the Child Care Setting: A Position Statement of the American Diabetes Association,⁴ and the 2011 Position Statement:  Diabetes and Driving, an overview of licensing rules for people with diabetes, addressing the factors that impact driving for this population, and identifying general guidelines for assessing driver fitness and determining appropriate licensing restrictions.⁵

1. Diabetes Care is a journal intended to increase knowledge, stimulate research, and promote better management of people with diabetes.
2. A position statement is an official American Diabetes Association (ADA) point of view or belief that contains clinical or research recommendations. Position statements are issued on scientific or medical issues related to diabetes. They are published in ADA journals and other scientific/medical publications. ADA position statements are typically based on a systematic review or other review of published literature. Position statements undergo a formal review process. They are updated annually or as needed.
3. The American Diabetes Association is a nationwide nonprofit voluntary health organization founded in 1940, and has over 485,000 general members, 15,000 health professional members, and 1,000,000 volunteers. The mission of the ADA is to prevent and cure diabetes and to improve the lives of all people affected by diabetes. As of 2011, there were 25.8 million Americans with diabetes. The ADA is the largest, most prominent nongovernmental organization that deals with the treatment and impact of diabetes. The ADA establishes and maintains the most authoritative and widely followed clinical practice recommendations, guidelines, and standards for the treatment of diabetes.
4. Diabetes Care, October 2014 vol. 37 no. 10 2834-2842
5. Diabetes Care January 2014 vol. 37 no. Supplement 1 S97-S103.

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Yatvin has represented numerous families of students with diabetes who faced discrimination because of their medical condition. He served as American Diabetes Association (ADA) national chair of legal advocacy from 2010 – 2013.  He is currently a member of the ADA Board of Directors.

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Although this little family was struggling on many fronts, Marissa had 4 ½ days a week in a calm and happy world.  Then in early December, Marissa fell ill and was admitted to the hospital, where she was diagnosed with type 1 diabetes. Despite her own health struggles, Mom Evelyn, along with Grandmother Helena and 15 year old big brother DeShaun, dived into Marissa’s diabetes regimen and quickly got her care under control.  Their next step was getting Marissa back to school.

The week before Christmas, Helena took Marissa back to school, along with her diabetes supplies and instructions for her diabetes care.  But the school said, sorry, Marissa can’t come back.  There was only a part time nurse at the public elementary school building that housed Marissa’s Head Start pre-K, and Pennsylvania law did not allow teachers and staff to volunteer and be trained to inject insulin. The school told Marissa’s family that she could not return to school unless they hired a nurse themselves.

Paying for a nurse was out of the question.  So, for months Marissa had to stay out of school because of their refusal to provide her with diabetes care.  Helena and Evelyn tried everything they could think of.  They called a local education advocacy group. They talked to their state representative. But they were told that nothing could be done. No one was able to help the family, and Marissa could not go back to school.

The family was tired, overwhelmed, and did not know if there was anything else they could do. Finally, a family friend suggested they contact the American Diabetes Association (ADA).   Helena called 1-800 DIABETES, and was immediately put in touch with Association Legal Advocate Ben Eisenberg, a staff attorney in the Alexandria, Virginia main office.

Ben then connected the family with Popper & Yatvin partner Alan L. Yatvin, who is a member of the ADA’s National Board of Directors and immediate past chair of Legal Advocacy for the ADA.  He got right to work without any charge to the family.  He reached out to the school district noting that Marissa had an absolute right to access public education. The school district had not considered any accommodation under federal laws, such as Section 504 of the Rehabilitation Act. These laws give children a right to access publicly funded education, even public preschools. He then asked for a quick meeting to address Marissa’s situation.  Unfortunately, the district ignored Alan’s efforts to educate and negotiate with them, and Marissa continued to remain out of school.

At that point Popper & Yatvin filed a lawsuit in federal court, demanding that the school district immediately return Marissa to her class and provide her with diabetes care. After some stubborn resistance, the school district relented, agreeing to assign a full-time nurse to Marissa.  Just weeks after being put in touch with Popper & Yatvin, Marissa finally returned to school, after nearly five months of exclusion.  Sadly, her mom Evelyn lost her battle to breast cancer two weeks later.

Marissa and her family still face many challenges, but exclusion from school because of diabetes is not one of them. They can now focus on Marissa’s diabetes care, her adjustment to life in school, and moving forward into new opportunities. And they will always know that when nobody else was able to help, Popper & Yatvin and the American Diabetes Association were there to fight for fairness for Marissa and her family.

For more information on the rights of students with diabetes, check out the ADA’s Safe at School page.  

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During the one hour session, which included lively questioning by attendees, Alan discussed:

• Federal laws that protect children with diabetes in school;
• Safe at School tenets of the American Diabetes Association;
• Status of state laws affecting student with diabetes in Pennsylvania and around the country;
• Issues that children with diabetes face in school;
• Nuts and bolts of writing an appropriate individualized plan for a student with diabetes;
• Resources for parents and healthcare providers to insure that students with diabetes are able to fully and safely access all aspects of their school programs; and
• How parents can get support and assistance to protect the rights of their children with diabetes.

A PDF of the PowerPoint slides, prepared by Crystal Crismond Jackson, Safe at School Director for the American Diabetes Association, is available here.

Alan L. Yatvin is a partner in the Philadelphia law firm of Popper & Yatvin, where his practice includes representation of students and parents in special education and disability matters.  Alan is a member of the National Board of Directors of the American Diabetes Association (ADA), and immediate past ADA national chair of Legal Advocacy.  Based in Alexandria, Virginia, the ADA is celebrating its 75th Anniversary as it pursues its mission to prevent and cure diabetes and to improve the lives of all people affected by diabetes.

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