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In a strongly worded rebuke, a New York judge has ordered the state Education Department to cooperate with an investigation into abuse and neglect at a pricey residential school that draws students with autism from across the country.
The judge ruled that the New York State Education Department must turn over documents it has about incidents at Shrub Oak International School to the watchdog group Disability Rights New York within seven days of the decision. The Education Department for months has refused to give DRNY records it has received about the private school, which is not approved or monitored by the state.
State Supreme Court Judge Andra Ackerman wrote in her decision, issued last week, that the department had violated state and federal law when it refused to provide records related to incidents as well as the school’s business applications to the state. She called the agency’s actions “arbitrary and capricious” and “an abuse of discretion.”
The Education Department has acknowledged it has “documents relevant to an investigation of abuse and neglect inflicted on the students at the school,” Ackerman wrote. “It claims, however, that it is entitled to keep that documentation for itself — apparently doing nothing with it — and to refuse DRNY access simply because NYSED is not responsible for these particular students,” Ackerman added.
The judge’s ruling also follows a ProPublica investigation published this month that documented multiple allegations of abuse and neglect at Shrub Oak, a residential school for students with autism and other challenges. It revealed how would-be whistleblowers could not get state authorities to intervene at the school.
DRNY, which receives federal funding to conduct investigations on behalf of people with disabilities, petitioned the New York Supreme Court in Albany County in April to force the department’s hand. (In New York, the Supreme Court is a lower court, not the state’s high court.)
David Hutt, the legal director at the National Disability Rights Network, said interfering with watchdog groups’ investigations undermines their authority and is “frankly wasting federal money.” He said it’s important for DRNY to challenge the Education Department so that concerns about people with disabilities don’t “stay in the shadows.”
Even though Shrub Oak is a school, it is allowed under New York law to operate without approval from the state and has never sought such approval. As a result, the Education Department has no oversight responsibility though the school enrolls mostly publicly funded students from New York and about a dozen other states.
Shrub Oak opened in 2018 in a former seminary in Mohegan Lake and has about 85 students this year. Though it is a private, for-profit school, most students’ tuition is paid by their public school districts. Many students require round-the-clock care and have a dedicated aide for most of the day, bringing the cost of their tuition to $573,200.
David Bloomfield, an education law professor at Brooklyn College and the CUNY Graduate Center, said the Education Department’s unwillingness to cooperate with DRNY’s abuse investigation “is an example of the state being highly deferential to private institutions.”
An Education Department spokesperson did not respond to requests for comment. But the New York attorney general, which represents the department, argued in legal filings that because the state does not oversee Shrub Oak, it has no duty to investigate allegations of abuse and neglect of students there and should be allowed to keep its records secret.
A DRNY spokesperson said she could not comment. The organization does not have enforcement authority, meaning it cannot sanction Shrub Oak, but could issue a public report of its findings or try to force change at Shrub Oak through a lawsuit.
The disability rights group has been investigating the school for about a year and said in court filings that it has received complaints that students were left to sleep on urine-soaked mattresses, had unexplained black eyes and were denied medical care. The group also has been investigating whether school workers were discouraged from calling 911 in emergencies. Investigators “observed conditions that were consistent with the allegations in the complaints,” according to the judge’s decision.
Shrub Oak did not respond to requests for comment for this story. But the school has been critical of the investigations by DRNY and a sister group in Connecticut. In a letter last month from a Shrub Oak attorney to the watchdog organizations, the school said investigators were unqualified to observe or understand autistic students. The letter criticized the groups for having made more than 17 requests for documents and information and more than nine unannounced visits but not sharing their findings.
The attorney wrote that the school is concerned that even though it is cooperating, the organizations “are not focused on a complete and balanced understanding of the services and environment SOIS provides to its students. Accordingly, the resulting reports of their investigations are likely to unfairly portray SOIS in a negative light.”
Shrub Oak has said it provides a critical need for a student population that lacks options, often enrolling students who have been rejected from other schools. It has said that the staff is qualified, caring and encouraged to call 911 in emergencies, and that it investigates allegations of misconduct by staff members. School leaders would not comment about individual incidents involving student injuries or neglect allegations, but they said Shrub Oak caters to students who injure themselves and are learning toileting skills or intentionally urinate as part of their behavioral challenges.
Through its spokesperson, Shrub Oak said it plans to seek state approval as a special-education school.
ProPublica also has sought public records from the state Education Department about Shrub Oak, including complaints against the school. The department has denied access to some records and has delayed releasing others after Shrub Oak requested that it keep the records confidential. Shrub Oak general counsel Brian Koffler said in a letter to the Education Department that releasing the records could hurt the school’s competitive position and that they should be kept “away from individuals who seek nothing more than to create problems for our staff and our students.”
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This content originally appeared on ProPublica and was authored by by Jennifer Smith Richards and Jodi S. Cohen.