You are Cordially Invited!
On April 10, 2018, between 6 and 8 p.m., Mayerson & Associates will be hosting a meet and greet reception for State Senator Gustavo Rivera, the Ranking Member of the New York State Senate Health Committee. Senator Rivera has a brother on the autism spectrum and his record shows tremendous support for the special needs population and worthy health and education-related initiatives. Local government is becoming more and more important these days. Come and meet Senator Rivera to discuss the issues that are important to you! Light refreshments will be served and there is no charge to attend. Please RSVP to Sean LeVan, at (212) 265-7200.
On March 23, 2018, New York Law School held a symposium focusing primarily on two important cases decided by the Supreme Court; Frye (having to do with the exhaustion of administrative remedies requirement) and Endrew F. (defining the meaning of the IDEA statute’s entitlement to a “free appropriate public education). Gary Mayerson presented as a panelist during the segment entitled “From Rowley To Endrew F.” Gary also introduced guest speaker Clifford Rowley, the father of Amy Rowley, the student at issue in the Supreme Court’s seminal 1982 Rowley decision. Mr. Rowley’s presentation was delivered in American Sign Language, and it provided a fascinating account of his family’s life and history before and after the Rowley decision. Amy Rowley, for example, went on to earn a Ph.D. and is now a college professor in California.
At the conclusion of the Symposium, Gary Mayerson and colleagues Jean Marie Brescia, Maria McGinley, Jacqueline DeVore and Susan Wagner attended a reception in honor of NYLS Professor Richard Marsico, who coordinated the symposium and recently co-authored the law school textbook entitled “Special Education Law and Practice.”
Coincidentally, on March 23, 2018, the very same day as the NYLS Symposium, the Second Circuit rendered a decision answering one of the core questions discussed by the “From Rowley To Endrew F.” panel. One of the important issues presented to the panel was whether or not the decision in Endrew F. represents a “sea change” in the Second Circuit, or whether that decision is reflective of existing Second Circuit precedent. In Mr. P and Mrs. P., the Second Circuit Court of Appeals expressly held for the very first time that “Prior decisions of this Court are consistent with the Supreme Court’s decision in Endrew F.”
Gary Mayerson with Clifford Rowley
In March of 2017, by a unanimous 8-0 decision, the U.S. Supreme Court mandated a far more robust, outcome-oriented FAPE standard. In Endrew F. v. Douglas County School District RE 1, 137 S.Ct. 988 (2017), the high court articulated a new FAPE standard, clarifying that a FAPE is required to be “markedly more demanding” than a “more than de minimus” standard and must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court further explained that every child is entitled to the chance to meet “challenging objectives” and that this should be accomplished by parents and school districts working together collaboratively to develop an IEP setting forth goals that are “appropriately ambitious.” A remand was ordered back to the district court so that the district court judge (who had ruled for the school district) could reconsider the record in light of the Supreme Court’s new FAPE standard.
On February 12, 2018, the district court judge (Judge Babcock) reversed himself and awarded the student full tuition reimbursement relief and transportation based on the Supreme Court’s new FAPE standard. The district court judge explained that, applying the new FAPE standard, the IEP offered to the student by his school district “…was insufficient to create an educational plan that was reasonably calculated to enable [the student] to make progress, even in light of his unique circumstances, based on the continued pattern of unambitious goals and objectives of his prior IEP’s.”
The Supreme Court’s unanimous decision in Endrew F. and the district court’s analysis on remand should help parents and school districts work together more collaboratively to design IEP’s that are “reasonably calculated” i.e. designed to promote greater levels of independence and self-sufficiency. By way of a caveat, there still is, however, no entitlement to an IEP that is designed to achieve an optimal outcome. As the high court explained in its 2017 decision, there is no entitlement to “…an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” No matter. There is now much needed room for improvement between mere access to the “floor” of educational opportunity and the broader opportunities that a neurotypical child can expect. Hopefully, the Supreme Court’s decision in Endrew F. will help to meaningfully reduce that gap in the years to come.
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.
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.