M.F. v. N.Y.C. Dep't of Educ.

582 F.Supp.3d 49

M.F., a minor, BY AND THROUGH his parent and natural guardian Yelena FERRER; M.R., a minor, by and through her parent and natural guardian Jocelyne Rojas; I.F., a minor, by and through her parent and natural guardian Jennifer Fox, on behalf of themselves and a class of those similarly situated; and The American Diabetes Association, a nonprofit organization, Plaintiffs,

v.The NEW YORK CITY DEPARTMENT OF EDUCATION ; the New York City Department of Health and Mental Hygiene; the Office of School Health ; the City of New York; Bill De Blasio, in his official capacity as Mayor of New York City; Richard A. Carranza, in his official capacity as Chancellor of the New York City Department of Education ; Oxiris Barbot, in her official capacity as Acting Commissioner of the New York City Department of Health and Mental Hygiene; and Roger Platt, in his official capacity as Chief Executive Officer of the Office of School Health, Defendants.

18 Civ. 6109 (NG)(SJB)

United States District Court, E.D. New York.

Signed January 27, 2022

Torie A. Atkinson, Disability Rights Advocates, New York, NY, for Plaintiff A Minor.

Torie A. Atkinson, Disability Rights Advocates, New York, NY, Alan L. Yatvin, Weir Greenblatt Pierce, LLP, Philadelphia, PA, for Plaintiff The American Diabetes Association.

Philip S. Frank, Chlarens Orsland, The City of New York Law Department Office of Corporation Counsel, New York, NY, for Defendants.

OPINION & ORDER

GERSHON, United States District Judge:

This case, brought as a class action, seeks declaratory and injunctive relief pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"); Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"); and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL"). It alleges that the defendants (collectively referred to as New York City Department of Education, or "DOE") have failed to provide appropriate care to students with type 1 and type 2 diabetes in New York City public schools, in violation of the students’ rights under these laws. Named plaintiffs in this action are three children, by and through their parents and natural guardians, who have type 1 diabetes and attend DOE schools. Additionally, the American Diabetes Association is suing as an organizational plaintiff on behalf of its members, who include children with type 1 and type 2 diabetes who attend DOE schools and their parents. Plaintiffs now move for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, plaintiffs’ motion is granted.

I. Procedural Background

By order dated June 18, 2019, plaintiffs’ motion for class certification was granted. M.F. by & through Ferrer v. New York City Dep't of Educ. , 2019 WL 2511874 (E.D.N.Y. June 18, 2019). The class is defined as all students with type 1 or type 2 diabetes who are now or will be entitled to receive diabetes-related care and attend New York City Department of Education schools. Id.

The parties have engaged in settlement negotiations for the past two and a half years and have mutually resolved nearly all substantive areas of dispute, including as to Section 504 planning to determine the needs of students with diabetes and how defendants will meet those needs; the provision of care in the least restrictive environment as required by Section 504; and training for staff (nurses, paraprofessionals, Section 504 coordinators, and teachers and other staff) during the school day and in afterschool activities. See Memoranda of Understanding ("MOUs"), ECF Nos. 91-1–91-6, 94-1, 96-1, 97-1. The parties also continue to negotiate other aspects of the case, such as how agreed-upon or court-ordered relief will be monitored and enforced. However, the parties have been unable to resolve, and plaintiffs now move for partial summary judgment on, two discrete issues: the availability of nurses to administer insulin to students with diabetes who cannot self-administer insulin during field trips and the availability of trained adults to administer emergency glucagon to all students with diabetes while on school buses.

II. Undisputed Facts

The parties have stipulated to certain facts and additional undisputed facts appear in the record or were agreed upon by the parties at oral argument. In this case, the parties agree that there are no material facts in dispute. Instead, the questions here involve statutory interpretation and the application of the laws to the undisputed facts. In effect, defendants argue that it is they who are entitled to summary judgment.

a. Children with Diabetes in NYC Schools

Defendants have previously represented that there were 1,745 students with type 1 diabetes and 372 students with type 2 diabetes in DOE schools during the 2016–2017 school year. The DOE classifies children according to the diabetes care they require: "Independent," "Supervised," or "Nurse-Dependent." Independent students self-administer their own insulin.¹ Supervised students may require assistance in self-administering their insulin and recognizing and treating hypoglycemia (a condition in which blood sugar, or glucose, level is lower than normal) and with counting carbohydrates. Nurse-Dependent students cannot self-administer insulin and require an appropriately licensed health professional to assist them. The parties agree that teachers and other unlicensed lay staff are not permitted to administer insulin to any student with diabetes.²

The greatest diabetes-related danger a student with diabetes faces is the risk of hypoglycemia. It is a serious condition that happens suddenly and requires immediate treatment. Mild and moderate hypoglycemia are characterized by lethargy, confusion, irritability, nervousness, sweat, headache, or weakness. These conditions can be treated easily and effectively with the intake of a quick-acting source of glucose, such as fruit juice, candy, or glucose tabs. If not treated, mild or moderate hypoglycemia can become severe.

Severe hypoglycemia can cause loss of consciousness, seizure, and the inability to swallow; failure to treat severe hypoglycemia immediately can result in death. Severe hypoglycemia is treated with glucagon,³ a prescription drug that is administered by injection or nasal spray. Glucagon cannot be self-administered. There are rare, non-fatal, allergic-type reactions that may occur with glucagon ; symptoms can include itching, respiratory distress, and low blood pressure. But defendants do not dispute that the risk of administering glucagon to an allergic student is outweighed by failing to administer the emergency medication to a student who is unconscious and in need of the drug. Indeed, any student who may require the administration of glucagon during the school day must first provide the school with a valid prescription from a doctor—who has already weighed the risks and benefits of the drug's use—and the permission of the child's parent or guardian to carry glucagon.

Plaintiffs have presented evidence—in the form of the declaration of Dr. Henry Rodriguez, a pediatric endocrinologist with 25 years of experience—that calling and waiting for 911 emergency services to arrive in cases of severe hypoglycemia, instead of both administering glucagon and calling 911, places students with diabetes at high risk for death or life-threatening complications such as brain damage or coma. Defendants admit that immediately administering glucagon is "preferable" to waiting for an emergency responder, but do not recognize this practice as a legal mandate. Defendants’ Response to Plaintiffs’ Rule 56.1 Statement of Undisputed Facts at ¶ 44.

The parties agree that, for the purposes of this motion, defendants were, at all times relevant to this action, and are currently, recipients of federal financial assistance within the meaning of Section 504.

b. Field Trips

There is no dispute that students with diabetes are entitled, under the local and federal laws sued upon, to participate in field trips on an equal basis with non-disabled students. There is also no dispute that defendants are obligated to provide trained staff to provide diabetes care on field trips, including nursing services, to enable class members to fully participate in those trips. Defendants rely on contract nurses ("trip nurses") to accompany Nurse-Dependent students and to provide the necessary care during field trips. Based on DOE data from September 2016 through March 15, 2020, for students with disabilities, including diabetes, 2,523 of the 10,873 trip nurse requests—23.2%—were not filled, and defendants admit that the figure may be even higher.

Some students with diabetes are assigned a 1:1 nurse to accompany them during the school day, unlike students who rely on a school's general nurse for the administration of insulin. These 1:1 nurses attend field trips with their assigned students, and separate trip nurses are not required. Additionally, most Supervised or Independent students do not require a trip nurse because there are staff, such as teachers, who are able to administer glucagon in case of emergencies. Thus, for field trips, the specific issue on this motion is the availability of a licensed professional to administer insulin to Nurse-Dependent students.

Defendants’ current policy recognizes that, when trip nurses are unavailable, while "the school may ask the parent to attend or alternatively designate an adult who can come on the trip to administer the medication or provide the accommodation .... schools cannot require or pressure a parent to attend the trip or designate another adult on account of the student's needs."⁴ In accordance with the DOE's policies, without the presence of a person able to administer insulin to Nurse-Dependent students on a DOE field trip, the field trip is canceled or rescheduled for the entire class.

In spite of the written policies, school staff often pressure parents to attend the...