The United States Supreme Court has vacated and remanded the Sixth Circuit’s Decision in Fry v. Napoleon Community Schools, framing new standards and limits to the “exhaustion doctrine.” In general, the exhaustion doctrine had required that parents fully exhaust all their administrative remedies under IDEA before asserting any “other” claims. That rule caused many claims to languish unaddressed.
Autism Speaks filed an amicus brief with the high court advocating for limits to the exhaustion doctrine so that important non-IDEA claims could be timely addressed and adjudicated. I attended the oral argument in my role as the Director of the Autism Speaks Federal Legal Appeals Project. Many thanks to Caroline Heller and her colleagues at Greenberg Traurig for their excellent work on the amicus brief. I also want to recognize the contributions of my Senior Counsel, Jean Marie Brescia.
Justice Kagan, writing for all of the justices other than the two concurring opinions, explained that exhaustion of the IDEA statute’s administrative procedures is unnecessary where the graveman of the plaintiff’s suit is something other than the denial of a FAPE (e.g. where the graveman is a claim under the ADA). Justice Kagan went on to warn, however, that examination of a plaintiff’s complaint would consider substance, not simply a surface examination or search for “magic words.”
In my opinion, the high court’s decision in Fry is a thoughtful and balanced decision that recognizes the continuing utility of the exhaustion doctrine for FAPE deprivation claims while at the same time recognizing the fact that there are other claims that require prompt attention, and which should not be subject to the exhaustion requirement.
For the fourth consecutive year, and after a highly competitive nomination, investigation and screening process, we are proud to announce that Gary Mayerson has again been selected as a Super Lawyer for the New York Metropolitan area.
To be considered, the top attorneys from every field are first nominated by their peers. Nominees are then investigated by third-party research across 12 key categories. Final selections are then made after further review by a Blue Ribbon Panel of attorneys.
For 2016, Gary Mayerson is one of only 15 lawyers selected as a Super Lawyer in the category of Civil Rights.
Just in time for Thanksgiving for one of our longstanding client families, a federal district court judge has reversed New York State’s State Review Officer to reinstate nearly all of the reimbursement relief ordered by the Impartial Hearing Officer after an eight-day hearing. The financial relief ordered by the federal district court in G.O and T.O. v. NYCDOE includes full tuition reimbursement at the Rebecca School, as well as funding for 10 hours per week of after school ABA support and transportation expenses.
The Impartial Hearing Officer had considered and relied upon extensive compelling testimony from the student’s teachers and therapists, i.e. professionals who were personally familiar with the student’s unique needs. When the IHO compared the student’s demonstrable needs as against the DOE’s proposed IEP, the IEP came up short.
The SRO reversed the IHO and ruled that the DOE had not done anything wrong. On appeal, United States District Court Judge Ann Donnelly expressly faulted the SRO for ignoring and failing to discuss any of the testimony given by the student’s teachers and therapists, and for relying exclusively on the testimony of a single CSE witness who had never even met the student.
In addition to the significant funding relief that Judge Donnelly awarded, the court’s decision establishes a new level of “pendency” protection for the family. Moreover, the court has set a schedule for the family to make application to recover legal fees and related costs attributable to the hearing held before the IHO, the DOE’s appeal to the SRO, and the family’s further appeal to the federal district court.
Jean Marie Brescia, the student’s lead counsel, believes that this case is important because it shows how important it is for your child’s teachers and therapists to weigh in openly at the IEP meeting and in their reports about your child’s specific challenges and learning needs. It is difficult to ignore such evidence, particularly when the DOE’s sole witness has little, if any, personal knowledge to speak of.
Mayerson and Associates own Randy Richardson was recently profiled along with Gary Mayerson by the New York Post.
Click here for the New York Post article
Assistant Paralegal Randy Richardson
Last Month, United States District Court Judge Kiyo A. Matsumoto affirmed Judge Robert M. Levy’s Report and Recommendation in our case, T.Y. v. New York City Department of Education, awarding T.Y.’s parents reimbursement relief for T.Y.’s tuition at the Rebecca School and T.Y.’s after-school speech therapy, provision of a 1:1 paraprofessional and transportation-related costs and expenses.
Judge Levy’s Report and Recommendation found that the DOE had failed to consider documents or parent input addressing T.Y.’s need for a relationship-based instructional model. At the hearing, T.Y.’s mother testified that, at the IEP meeting, she had raised concerns regarding teaching methods to address T.Y.’s individual needs at the IEP meeting, inquiring whether there were any available programs that utilized DIR. However, the DOE’s representative stated that teaching methodology would not even be discussed at the IEP meeting.
The Court found that the IHO thoroughly considered the evidence as to this issue, but the SRO had not done so. Ultimately, the Court held that the IEP did not sufficiently address T.Y.’s unique needs. Accordingly, the court deferred to the IHO’s thoughtful and well-reasoned determination that the DOE did not consider the DIR/Floortime methodology or address the student’s demonstrable need for a relationship based program.
The Court further found that the DOE’s failure to consider the need for after school speech and language therapy further compounded the DOE’s failure. At the time of the IEP meeting, T.Y. was receiving seven weekly hours of speech and language therapy. A report from T.Y.’s afterschool speech therapist stated that T.Y. requires 5 hourly sessions of speech-language therapy per week. T.Y.’s mother sent that report to the DOE before the IEP meeting and also brought a copy of the report with her to the meeting, but the DOE representative did not want to read it, placed it in the middle of the table, and made no reference to it during the IEP meeting.
At the hearing, T.Y.’s speech therapist provided testimony as to why T.Y. required supplemental after-school speech therapy and that T.Y. would regress if he did not continue to receive supplemental speech services. The district court found that the SRO’s reasoning on this point was not persuasive and deferred to the IHO’s well-reasoned determination that additional speech-language therapy was necessary for T.Y. to make progress in his educational program.
The T.Y. case has concluded but for the parents’ motion for attorneys’ fees and other costs.
On Wednesday, October 19, 2016, Gary Mayerson was honored by Job Path for his work as a leading civil rights attorney. Hundreds of thousands of dollars were raised for job coaching and training.
Job Path Executive Director Fredda Rosen
Job Path Event Host and Sponsor Tina Brown
Gary with filmmaker and presenter Alexandra Shiva
Gary With His Special Superhero Award
Dr. Ivy Feldman and Elyse Kroll
Dr. Amy Davies Lackey and Dr. Cecilia McCarton
Mayerson & Associates Paralegal Assistant Randy Richardson