The Legal Brief: Developments in Brain Injury Rights Group Class Action Lawsuit Regarding Special Education Instruction and Services During COVID-19

Previously, we notified clients regarding the Brain Injury Rights Group litigation filed in the Southern District of New York in which the Plaintiffs have attempted to sue every state education agency and every public school district in the U.S.  Some districts received attempts to serve them.  Other districts, including some in Texas, had due process hearings filed against them.

The court expressed significant skepticism regarding exercising jurisdiction over school districts outside of the Southern District of New York.  Several school districts in New York and at least two in Texas notified the court of due process hearings filed by the plaintiffs’ attorneys against school districts, where the parents were unaware the plaintiffs’ attorneys had filed due process hearings on their child’s behalf and they had not authorized the filing of the due process hearings against the school districts.

We previously reported that the court entered two show cause orders to plaintiffs’ counsel.  The first ordered the plaintiffs’ counsel to show legal authority for the court to exercise jurisdiction over school districts located in states outside of New York and ordered the plaintiffs’ counsel to provide legal authority for the court to exercise jurisdiction over New York school districts located outside of the Southern District of New York.  The second related to filing of due process hearings without the parent’s express consent.  After entry of the order, plaintiffs reported to the court that they had filed 199 due process hearings.

In a September 22 order, the court found the retainer agreements to be inadequate to cover the scope of filing due process hearings for individual plaintiffs and stated, “Learning that some 200 requests for impartial hearings have already been filed on the basis of the obtuse and uninformative language in the BIRG (Brain Injury Rights Group) form retainer agreement is very troubling to the court.”  The plaintiff was warned not to file any further due process hearings without new retainer agreements that specifically authorize due process hearings being filed.  Further, the court denied plaintiffs an opportunity to amend their pleadings since multiple defendants had already filed motions to dismiss the cases.

On October 23, the court was informed that plaintiffs were sending letters to school districts seeking vouchers during the pendency of the litigation, presumably to cover private services.  The plaintiffs’ letter alleged Medicaid fraud and requested Medicaid reimbursement submissions for three years in the event the district was of the opinion they had not committed Medicaid fraud.  The letter additionally requested forms CMS-37 and CMS-64.  Attached to the letter was a press release from the plaintiffs alleging “Largest Local Gov’t RICO Scheme in U.S. History-School Districts Committed Medicaid Fraud at Expense of Special Needs Students.”

Defendant’s letter to the court noted that the information sought through the letter was the same information plaintiffs sought through discovery in the case and the court had previously entered an order that there would be no discovery until all motions had been decided.  In response to the notification to the court, the court entered a handwritten order on the letter in which the judge stated, “Let me be clear.  Plaintiff’s counsel is to take no steps, either under or outside of the Federal Rules of Civil Procedure, to obtain information to use in the presentation of this case.  No defendants need reply to any such request.”

Accordingly, no district should respond to any request for information from the Brain Injury Rights Group requesting information and should consult with counsel regarding any such request or attempt to serve any papers related to this case.

Ultimately, we believe this case will be significantly limited in scope and geography to districts located in the Southern District of New York.  We will continue to monitor the case and advise what actions individual school districts should take as more information becomes available.

Written By: Hans Graff