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
By Decision dated September 30, 2016, United States District Court Judge Kiyo A. Matsumoto affirmed Magistrate Judge Robert M. Levy’s Report and Recommendation in T.Y. v. New York City Department of Education, awarding T.Y.’s parents full reimbursement relief for T.Y.’s tuition at the Rebecca School plus the costs of T.Y.’s after-school speech therapy, 1:1 paraprofessional and transportation-related costs.
The DOE’s representative at T.Y.’s IEP meeting had refused to even discuss the effectiveness of the DIR methodology used at the Rebecca School. The Court held that the DOE’s failure to consider T.Y.’s after-school speech therapy further compounded the DOE’s failure to consider a relationship-based program. Ultimately, the Court held that the DOE’s IEP did not sufficiently address T.Y.’s unique needs. In reversing the SRO, the Court deferred to the IHO’s thoughtful and well-reasoned determination as to the kind of teaching methodology that T.Y. needs and the fact that T.Y. needs supplemental speech therapy after school in order to make meaningful progress and prevent regression.
In addition to affirming the need for highly individualized educational programs that are based on a student’s unique needs, the decision in T.Y. highlights the importance of after-school programming for students whose educational needs extend beyond the regular school day. Click here to see the Court’s underlying decision.
On August 29, represented by a team of attorneys assembled by longstanding board member Gary Mayerson, Autism Speaks filed an amicus brief in the United States Supreme Court to support the position taken by the parents and the U.S. Department of Justice in Fry v. Napoleon Schools.
At issue is the “exhaustion” doctrine—a procedural rule that can have very serious substantive consequences. According to the Sixth Circuit Court of Appeals, parents must first exhaust all of their “administrative” remedies before asserting claims for money damages, injunctive relief or any other relief that may not even be available in an administrative proceeding. The exhaustion process can sometimes take years—valuable time that a student with a significant disability cannot afford to waste.
The Justice Department intervened to support the position of the parents; that is, the exhaustion doctrine should not apply where the relief that is being requested cannot be secured in an administrative proceeding. Thereafter, Gary Mayerson sought and obtained permission for Autism Speaks to file an amicus brief.
Autism Speaks’ amicus brief focuses on our landmark 2016 Second Circuit decision in T.K. v. NYCDOE as a fact pattern presenting a compelling window of insight showing why the high court should reverse the Sixth Circuit and apply the exhaustion doctrine as requested by the parents and the Justice Department.
To see Autism Speaks’ amicus brief (click here).
Autism Speaks’ amicus brief was written and edited by Gary Mayerson, Caroline Heller (Greenberg Traurig), Jean Marie Brescia (Mayerson & Associates), and Dan Unumb (Autism Speaks Legal Resource Center).
***NOTE: By the time that Fry is argued before the high court, our Nation will have a new president and hopefully, a ninth Justice will have been confirmed. It could be critical to have a ninth Justice available because if the high court were ever to rule 4-4, the decision of the Sixth Circuit would not be disturbed.
On September 20, 2016, I had the pleasure and honor of meeting with the First Lady of Ukraine, Dr. Maryna Poroshenko at the St. George Academy to discuss inclusion as it is implemented here in the U.S. and Ukraine’s commitment to embracing inclusion programming. I had the opportunity to explain the “civil rights movement” origin of the IDEA and ADA statutes and the United Nations’ inclusion resolution, and how inclusion programs can conserve costs in the long run by making students who can benefit from inclusion more independent and self sufficient when they transition to adulthood.
Dr. Poroshenko, formerly a cardiologist by training, explained that Ukraine is at the very beginning of adopting inclusion programs. Dr. Poroshenko was very impressed with the inclusion program she was able to observe while visiting St. George Academy (where one of our inclusion clients attends successfully with relatively limited support). Finally, we discussed the fact that inclusion can work only when those involved in the inclusion process are genuinely committed to the process. In this connection, we commend St. George Academy Principal Andrew Stasiw and his entire staff for their demonstrable commitment and dedication.
By Maria C. McGinley
On June 14, 2016, the Board of Regents approved amendments to the Commissioner’s Regulations relating to recommendations for one-to-one aides for preschool and school age students and other related recommendations. By all appearances, the new amendments are fiscally motivated.
For example, the new amendments mandate that before the CPSE or CSE can recommend a one-to-one aide for a student on the student’s IEP, the CPSE or CSE must now first consider nine specific factors including the management needs of the student, the specific supports that the aide would provide, the skills that the student would need to achieve to eliminate the need for the aide, other supports that might obviate the need for the aide, the extent to which the aide would promote inclusion with non-disabled students, and any anticipated harmful effect that might result from assigning the student a one to one aide. The nine factors to be considered are tantamount to hurdles that will now need to be addressed going forward in assessments and evaluations. In other words, it will no longer be sufficient for evaluators to state generically in a report that the student needs one to one support in the classroom.
Another significant change is that even in situations where a student’s IEP expressly calls for a one-to-one aide, the student’s school will now have the “discretion” to share that aide with other students. For those students with autism who need full-time one-to-one support in the classroom, the new “discretion to share” amendment is an unhelpful and inadequate dilution that we expect to challenge in the upcoming school year.
The effective date of the new amendments is generally June 29, 2016. Most IEP’s for 2016-2017 have already been developed and finalized. If you have any questions concerning the impact or applicability of the new regulations in your personal situation, please call the office at your earliest convenience so that we can plan accordingly.
4/4/16 PIX11 segment featuring Danny Oquendo, our law intern, and how he was inspired to devote his life and career to helping individuals and families affected by autism.
Additionally, on April 26 at 6 p.m., Gary Mayerson and Danny Oquendo will be speaking at New York Law School about school safety, New York City’s passage of the Audible Alarms Bill (Avonte’s Law) and Senator Schumer’s efforts to make Avonte’s Law apply nationally.
Gary Mayerson’s Upcoming Speaking Engagements and Interviews
Date: April 1, 2016
Time: 1:00 p.m.
Place: Yale Medical School (34 Park Street, Room 133)
Topic: The “Capacity” Of Individuals With Disabilities to Tell The Truth
Date: April 7, 2016
Time: 7:00 p.m.
Place: Steven Wise Synogogue (30 W 68th Street)
Topic: Housing For The Adult Population And Related School Supports
Date: April 26, 2016
Time: 6:30 p.m.
Place: New York Law School
Topic: School Safety-The Passage of Avonte’s Law
Date: [Anticipated first week of April]
Placement: The Economist
Topic: The Availability of Autism Resources In the U.S. As Compared To Other Nations