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
In a 21-page January 20, 2016 Decision (click here for decision) that is likely to be felt nationwide, a three-judge panel of the Second Circuit Court of Appeals (the top federal court for appeals hailing from New York, Connecticut and Vermont) has ruled that the “severe bullying” of L.K., a New York City public school (P.S. 6) student with a disability, over the course of a two-year time frame, deprived L.K. of a “free and appropriate public education,” thus entitling L.K.’s parents to tuition reimbursement for the private, state-approved special education school that the student was then forced to transfer to when her parents’ repeated complaints of bullying fell on deaf ears. In so doing, the Court affirmed earlier decisions to the same effect rendered by United States District Court Judge Jack Weinstein, now 94.
As the Court observed, “L.K.’s teachers appear to have done little to stop the bullying [and] neither intervened nor punished the students who bullied her.” The Court further observed that the bullying made L.K. “unavailable to learn” and thus, adversely affected her academic performance. To add insult to injury, “plaintiffs’ several attempts to raise the issue of bullying with L.K.’s school were consistently rebuffed.” The Second Circuit thus ruled that “[the NYC Department of Education] denied L.K. a FAPE by violating her parents’ procedural right to participate in the development of the IEP.” In this connection, as supporting precedent, the Second Circuit cited to three prior decisions at the court of appeals level that had been litigated and won by Mayerson & Associates.
Mayerson & Associates represented the student and her parents at all stages, including two trials before the impartial hearing officer, two appeals brought before the State Review Office, and multiple motions and a mini-trial held before Judge Weinstein to take additional evidence. L.K.’s matter attracted the attention and support of the United States Department of Justice. Having emerged from the proceedings as the “prevailing party,” L.K. and her parents are now entitled to file an application for attorneys’ fees and costs.
L.K. was represented throughout by Gary Mayerson, as lead counsel, with additional support during the various appeal stages by Jean Marie Brescia and Maria McGinley.
Gary Mayerson hailed the result in T.K. as a landmark civil rights decision that will go far to address the nation’s bullying problem: “The Second Circuit’s courageous decision affirming Judge Weinstein’s Judgment stands for the proposition that every student has the right to attend school free from physical or psychological abuse and every parent has the right to expect that when they communicate concerns about bullying, those concerns will be timely addressed and acted upon.”
by Maria McGinley
On Monday January 11, 2016, Governor Christie signed ABLE legislation that will allow New Jersey families the opportunity to set up tax-free 529A savings accounts for disability related expenses. Governor Cuomo had signed similar ABLE legislation into law in New York on December 22, 2015.
The NJ and NY ABLE legislation follow the enactment of the federal Achieving a Better Life Experience Act of 2014. Modeled after college savings accounts, ABLE accounts enable individuals with disabilities and their families to save for housing, education, transportation, medical and other expenses related to their disability and the accounts are exempt from the $2,000 cap that is required to remain eligible for government supports.
This is a landmark moment for individuals with disabilities in NY and NJ. The ABLE Act will change the manner in which families can save for their children’s future, which will open the door to increased opportunities. No longer will individuals with disabilities have to endure unfair financial roadblocks due to outdated laws. At a time when individuals with disabilities are increasingly “aging out” of school programs and transitioning into adulthood, it is highly significant that NY and NJ have now joined a number of other states that are making it easier for an adult on the spectrum to live independently.