By Gary Mayerson
Ralph Waldo Emerson was right. As a society, we pretty much do “learn geology the day after the earthquake.” However, five solid days of fact gathering by state and federal investigators has produced many more questions than answers regarding the unspeakable Newtown tragedy, with a great deal of reckless speculation and misinformation still being disseminated. Some in the media continue to report that Adam Lanza has Asperger’s or some other autism spectrum disorder. The suggestion, of course, is that autism is somehow to blame for Adam Lanza’s senseless acts.
This is not a new problem for the autism community. Ignoble criminal defendants have repeatedly attempted to cloak themselves with the “autism” label in a desperate effort to excuse and explain away criminal behavior. This latest purported “link,” while certainly sensational and helpful to viewership and ratings, is extremely hurtful and damaging to the entire autism community. Just this morning, I received a telephone call from one of our Connecticut families. Their son (with autism, in an inclusion program) had asked “Are the kids at school going to hate me now because I have autism?” To even posit that question speaks volumes as to the serious danger and consequences of inaccurate beliefs and perceptions.
Incredibly, the media has failed to produce any IEP or genuine medical or other assessment to establish that Adam Lanza was, in fact, ever actually diagnosed with Asperger’s or some other autism spectrum disorder. Adam’s estranged brother Ryan apparently told reporters that his brother was disturbed and “kind of autistic.” Adam’s mother (also by media report) apparently also used the word “Asperger’s” from time to time. To be certain, it is somewhat less socially stigmatizing for a parent to identify their child as having Asperger’s (a neurological disorder) than to admit that their child is primarily psychotic, schizophrenic, or emotionally disturbed (i.e. mental illness). To their credit, not one of the federal or state investigators carefully sifting through the evidence have suggested that there is any demonstrable link between autism and planned violence. Nor have the NIH or the CDC. Some in the media, however, have not been as careful with their words.
Even if it ultimately is documented that Adam Lanza actually had an autism spectrum disorder, so what? People with autism certainly may be capable of tantrums and other “reactive” behaviors. As any respected autism professional will tell you, however, people with autism simply are not capable of the kind of the mass killing plan that Adam Lanza hatched and then executed with seemingly methodical precision. Indeed, if people with autism are known for anything, it is for their deficits in executive functioning, planning and time management. A student with autism may well forget to bring their homework assignment, tennis racket or backpack—but is not the kind of person who is capable of killing their mother, destroying a computer hard drive (so as to conceal their “tracks” and evidence), driving a car to the local elementary school, forcing entry into that school, and then killing nearly 30 human beings. That kind of sequence takes other “skill” sets.
At the same time that so many local families are grieving and burying their loved ones, the nation and the media understandably are asking “why?” On that score, there is plenty of potential blame to go around. Our ineffective gun control laws that allow the purchase of 30-round assault rifles might well be first on the list. Similarly, while I apologize in advance for speaking ill of the dead, also on the list might be a mother who apparently thought it okay to take her disturbed son to the local firing range to hone his assault rifle skills, and who apparently allowed him access to at least several military grade weapons.
Adam Lanza clearly needed instruction, intervention, and therapeutic counseling but that was not going to happen on the firing range. By all means, cast some blame upon Adam Lanza’s psychosis, his parenting, the availability of assault riles, or even Adam Lanza’s apparent regular access to violent videogames. There also are a lot of unanswered questions that need to be answered by Adam Lanza’s school system as to whether he was ever properly and timely identified, much less made the subject of meaningful intervention efforts. But please do not allow ignorance, misunderstanding or public clamor to conveniently blame autism for this horrific tragedy. Don’t go there.
by Gary Mayerson
After last year's litigation roller coaster ride, we are ready to meet whatever challenges may come our way. We have added significant resources at the attorney and paralegal levels. We also have further enhanced and streamlined procedures for the recovery of prospective, reimbursement, and "pendency" funding, and for documenting and effectuating settlements.
In the past year, Mayerson & Associates attorneys made special education law presentations in New York, New Jersey and Florida in the context of national conferences and continuing legal education seminars. On April 24, 2012, we argued three separate special education law appeals before the Second Circuit, the tier just before the U.S. Supreme Court. In only one of those cases were we representing the appealing party. The resulting adjudications from these three cases are likely to be extremely important, if not landmark, decisions that will shape and define the scope of parental rights and protections for families living within the Second Circuit (New York, Connecticut and Vermont). It was especially gratifying to see so many of our attorney colleagues make the trip to New Haven to watch the oral arguments. Keep your fingers crossed!
Most recently, my chapter on the legal implications of Central Auditory Processing Disorder (CAPD) was accepted for publication in Auditory Processing Disorders: Assessments, Management and Treatment, Second Edition, edited by Donna Geffner and Deborah Ross-Swain. I am now finishing a chapter tentatively entitled "Autism and the Law," to be published in the upcoming Fourth Edition of the seminal work, Autism and Pervasive Developmental Disorders, edited by Dr. Fred Volkmar, the Chair of the Yale Child Study Team.
A client's needs necessarily will change over time. Accordingly, as our client population ages, we are continuing to pioneer or expand into areas such as "transition" planning, bullying, compensatory education relief, residential placements and programs, housing, employment, custodial issues, and the battleground of what are "reasonable accommodations." Simply stated, we are committed to meeting the unique and ever-changing needs of our client families.
We are pleased to announce that JEAN MARIE BRESCIA will be joining Mayerson & Associates as a senior litigating attorney as of September 1, 2012. Upon graduating from Harvard Law School magna cum laude, Jean Marie was an associate at Sullivan & Cromwell. Since 1995, after an intervening stint with the Legal Aid Society, Jean Marie has been an active New York impartial hearing officer (IHO), presiding over and deciding more than 500 special education due process hearings. In addition to her highly respected work as an IHO, Jean Marie has been an Adjunct Law Professor at New York Law School, teaching Special Education Law and Practice. Jean Marie will add yet another valuable dimension to our practice and we are very excited that she is joining us.
After 12 days of trial involving the testimony of 14 witnesses, including a recognized autism expert, an impartial hearing officer held in one of our pro bono matters that the NYC DOE "grossly" failed to properly educate a 10-year-old boy with autism. The IHO awarded the parent reimbursement and "prospective funding" for the annual tuition at The Rebecca School as well as a sizeable "compensatory education" award for the DOE's gross failure to educate appropriately, of 20 hours per week of ABA and other related services, that the student can access for a period of 24 months. The IHO concluded that the evidence showed a two year FAPE deprivation, and that the student, "R.G.," was not making meaningful progress in the DOE's "District 75" program.
The outcome represents significant relief for R.G.'s mother, a single parent with an extremely modest income. R.G.'s mother had complained over time to multiple staff at R.G.'s public school that R.G. was not making meaningful progress. In response, R.G.'s school refused to make any adjustments or offer any additional services. At the end of her rope, R.G.'s mother paid for a private evaluation and hired an autism expert (a Board Certified Behavior Analyst) to observe R.G. in his District 75 public school placement. The DOE, however, then ignored the recommendations of R.G.'s expert. After giving the DOE written notice, R.G's mother then placed R.G. at The Rebecca School.
The IHO went beyond merely finding that the DOE's program for R.G. was deficient. The IHO also found that the DOE intentionally withheld and concealed information about R.G's speech abilities that it had a duty to disclose to R.G.'s mother.
The result in R.G. shows how valuable the "compensatory education" and "prospective funding" remedy can be for a parent without adequate financial resources. It also underscores how vigilant parents need to be to intentional concealment situations.
Pendency, also known as "stay put," is one of the strongest protections Congress enacted in the federal IDEA statute. Normally, in the first instance, the school district has the opportunity to select the student's pendency providers.
In what the court has characterized as a "unique" case of first impression, United States District Court Judge Vincent Briccetti has just held in one of our upstate cases that when a school district district "flatly refuses" to recognize and fulfill a disabled student's "pendency" rights under the federal IDEA statute, the school district must then reimburse the student's parents for the costs of the student's pendency services during the course of any IDEA-based dispute between the school district and the student's parents.
The dispute concerns "T.M.," a young Cornwall boy with autism whose parents rejected the Cornwall School District's proposed Individualized Education Plan (IEP) for the 2010-2011 school year.
When T.M.'s parents challenged Cornwall's education plan, they invoked T.M.'s "pendency" rights to continue and maintain the services that T.M. had been receiving under Cornwall's May 29, 2009 IEP, from service providers that Cornwall had originally approved. Cornwall, however, refused the parents' request, claiming that T.M. "did not have any statutory pendency entitlements."
An Impartial Hearing Officer, appointed and compensated by Cornwall to hear T.M.'s case, ruled otherwise. Because of Cornwall's outright refusal to recognize and provide T.M.'s pendency services, the hearing officer ordered Cornwall to
reimburse T.M.'s parents for the ongoing expense of maintaining T.M.'s services.
Thereafter, Cornwall took an appeal to the State Review Officer (SRO). However, even the SRO agreed that Cornwall had "unlawfully failed" to provide T.M.'s pendency services during the 2010-2011 school year case and that because of Cornwall's outright refusal, the presiding hearing officer had properly ordered Cornwall to reimburse T.M.'s parents for the cost of maintaining his pendency services.
On a further appeal to the federal district court, and upon T.M.'s motion for a preliminary injunction, Cornwall advised the court that it was now ready to honor and acknowledge T.M.'s pendency rights, but that Cornwall was entitled to select a brand new team of service providers for T.M.! Judge Briccetti rejected Cornwall's proposal and granted T.M.'s motion for a preliminary injunction, reasoning "... having forced the parents to secure private pendency service providers, Cornwall cannot now demand control over who will provide the pendency services and where the services are to be administered."
As a result of Judge Briccetti's ruling, Cornwall must now reimburse T.M.'s parents for T.M.'s pendency provider costs from July 1, 2011 to the time that there is a final order in the case. The T.M. decision now stands as helpful federal court precedent to assist similarly situated families.
Lilli Z. Mayerson's illustrated children's book, FRENCH FRIES FOR SIBLINGS: The Forgotten Children of AUTISM has been picked up by over 300 independent bookstores.
ORDER A COPY NOW for yourself - or for someone you know as a tool to discuss feelings and give comfort to affected siblings.
Available at: www.northshire.com
On May 14, 2012, Gary was honored at the McCarton Foundation’s 11thAnnual “Celebration of Learning,” held at the Chelsea Piers. Although Gary was honored for his work and achievements representing children with autism in the legal arena, Gary spoke of his pride to be a card carrying member of the “club” that most of our client parents share membership in.
Mayerson & Associates has a longstanding tradition of writing and speaking on educational rights issues. This is all part of our mission to “raise the bar.” On Saturday, June 2, 2012, Associate Maria McGinley, formerly a New York City Special Education teacher, lectured an audience of attorneys at Seton Hall Law School about the process and procedure of representing special needs children in educational rights disputes. In addition to reviewing the pertinent legal standards, Maria lectured on how parents and school districts can work collaboratively to negotiate effective and appropriate educational plans.
It has long been the policy of the New York State Education Department (“NYSED”) to encourage school districts to first consider any appropriate in-state residential placement options before considering residential options that may be located in other states.
In theory, this sounds like a perfectly sound policy. After all, what loving parents would ever intentionally choose to have to travel hundreds, if not thousands of miles to visit their child? In addition, all things being equal, it certainly makes logical sense to try to keep New York State tax dollars and funding within the state.
The problem, of course, is that all things are not equal. Despite the increased incidence of autism in the general population and the sheer number of people in New York State who require a quality residential placement, New York State has far too few appropriate residential options to meet what is a growing, if not exploding demand. Increasingly, because of the evident shortage of quality residential options within the state, New York families have had to turn to quality residential facilities in Massachusetts, Pennsylvania, Idaho and other states. And, truth be told, many of these placements occurred in the past with the express blessing and approval of NYSED, which then arranged significant reimbursement funding for the sending school district.
This school year, however, we noticed that New York school districts were becoming increasingly resistant to out of state options, even if the out of state option was previously chosen by the same school district, and even where there was no clinical reason warranting a change in placement. We believe we have uncovered the source of this unhelpful change in direction.
In April of 2011, James P. DeLorenzo, NYSED’s Statewide Coordinator for Special Education, issued an 8 page, highly intimidating memorandum warning that school districts that insist on placing students in out of state facilities “ ... are [depending on certain factors] at risk of receiving either partial state reimbursement … or no state reimbursement” and that “this would result in the … sending school district accepting full responsibility for the education and maintenance costs for the student’s placement.” School districts, however, do not face any draconian financial consequences if they happen to choose an in-state residential facility. That certainly makes the “choice” easier, doesn’t it?
Parents should take note of any planned placement change that seems designed for administrative expediency rather than to meet the clinical needs of the child. As always, it is important to nip these kinds of problems in the bud with the assistance of counsel before the placement change is scheduled to take effect.
On Sunday, June 3, 2012, Mayerson & Associates helped to sponsor the NYC Walk Now for Autism Speaks at the South Street Seaport to raise money for autism research and related special projects. We want to thank everyone who stopped by our booth or gave a “shout out” during the walk route. It is only fitting that for an event where the central theme is hope, a perfect rainbow appeared directly over the walk site.
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