Why is this school year so different?
By: Gary Mayerson
Last year, roughly 80% of the firm’s due process filings were settled by the New York City Department of Education (NYCDOE). This year, our firm and others are reporting that only a fraction of filed due process are being settled, forcing most client families to slog through full-blown hearings. Since more than 6,000 cases are filed each year with the NYC Impartial Hearing Office, the result is an unprecedented increase in the number of cases to be tried on any given day.
For this reason, families who have attended hearings this year have been witness to unprecedented, if not hostile conditions. On some days, dozens of parents are waiting to be assigned to a hearing room, sometimes waiting for hours. Parents who are represented by counsel are given priority, but the overall impact is one of unhelpful delays and administrative confusion.
This year, for the very first time, we are seeing the New York State Review Officer (“SRO”) castigate Impartial Hearing Officers who do not strictly adhere to “timeline” matters to the satisfaction of the SRO. In one recent SRO decision involving another law firm, the SRO branded as “incompetent” a highly respected, experienced and Harvard-trained IHO who had granted an extension of the statutory timeline where the DOE attorney and the student’s attorney had both requested that extension! The SRO then issued additional decisions excoriating other highly respected hearing officers on “timeline” issues. While none of these SRO decisions have involved our firm, we are observing that they already are having a “chilling” effect on the willingness of hearing officers to grant reasonable extensions of the hearing timeline, even in cases where the matter has been recommended for settlement.
On December 7, 2011, the City’s hearing officers attended a mandatory training session where the hearing officers were directed to cut down and restrict the number of hearing dates, and the not-so-implicit threat was that hearing officers who failed to do so might become the subject of employment sanction by the SRO or even by the State Education Department.
Obviously, we are very concerned about such developments since, at the very least, they have the potential to deprive a student of due process. To prove a sophisticated autism case, a proper evidentiary foundation must be laid. Even where the student prevails because the hearing officer “gets it,” the record must be solidly constructed so that it is strong enough to withstand an appeal to the SRO or beyond.
We are addressing this threat on both a macro and micro level. On the macro level, it is no secret that we are preparing a federal court challenge to these intimidating new sanctions and restrictions. On a micro level, we have added to our attorney and paralegal resources and are taking other appropriate steps to ensure that each family’s due process entitlements are observed and preserved.
Welcome Jacqueline DeVore, Esq.
By: Gary Mayerson
In order to better serve our client families, we have hired Jacqueline DeVore, an attorney with extensive experience litigating sophisticated due process hearings. The firm now has a “bench” of six attorneys, four of whom are experienced litigators.
While attending the CUNY School of Law, Ms. DeVore received the CUNY Student Leadership Award, as well as a NYU Revson Fellowship. After graduating from law school, Ms. DeVore became admitted in New York and in New Jersey and for four years, served as an Assistant District Attorney in the Bronx in its Child Abuse/Sex Crimes Bureau.
Until May of 2011, Ms. DeVore had been litigating for the New York City Department of Education’s General Counsel’s Office, in its Special Education Unit. Most recently, Ms. DeVore became a mother. Let it suffice to say that Ms. DeVore is very pleased with her new role at Mayerson & Associates, and so are we.
Gary Mayerson To Moderate The Meeting
House’sWinter Symposium On
Bullying, And Social Anxiety and Peer Pressure (January 26, 2012)
On January 26, 2012, 6-9 p.m., Gary Mayerson will be speaking and serving as moderator at The Meeting House’s Winter Symposium, to be held at the Elinor Bunin Monroe Film Center at Lincoln Center.
Topics will include bullying, cyberbullying, social anxiety and peer pressure, very timely topics in light of the landmark federal court decision that Mayerson & Associates obtained last year in T.K. v. NYCDOE—the very first federal court decision in New York to recognize that bullying and the school district’s failure to properly address parental concerns about bullying (where the alleged victim is a student with an IEP) can amount to a deprivation of the right to a free appropriate public education (FAPE).
Dr. Alan Kazdin, the Director of the Yale Parenting Center and the author of "The Kazdin Method," will be the keynote speaker. Also speaking will be Bob Cunningham, Head of School for the Gateway Schools in NYC.
The NYCDOE Must Accept That Many Students with Autism Require Schools Offering Full-Time 1:1 ABA
By: Tracey Spencer Walsh
In 2005, nearly seven years ago, the New York Center for Autism Charter School (“Charter School”) opened as the first (and today still remains the only) public school in New York City dedicated to providing 1:1 full-time ABA intervention to students with autism. The New York Times reported on the Charter School’s mission and explained that tuition would be free to parents. The Charter School does not provide any related services for students (speech, occupational therapy, physical therapy, etc.), so parents access those services out of school as needed.
The Charter School’s most recent 2010-2011 Annual Report shows that the cost has increased to about $97,000 per student (including administrative expenses). For 2011, it projects that it will receive about $2.5 million dollars from the NYC Government sources to educate 32 students. Significantly, NYC Charter School is available only to New York City students with autism, and only by lottery.
While not all parents of children with autism choose to access ABA intervention as their preferred intervention, for the children who do require 1:1 ABA intervention, it is shocking that the New York Center for Autism Charter School remains the only public school for New York City students with that teaching ratio, and is available only if the family literally “wins the lottery.”
Instead of using funds to open at least one other school like the NYC Charter School, the New York City DOE has chosen to settle fewer cases and make parents fight even harder. An obvious partial solution to the problem is to fund and open more Charter Schools.
The Unprecedented Level of
Appeals Taken To the Second Circuit
By: Maria McGinley
We previously have written as to the SRO’s unfortunate propensity for reversing IHO decisions rendered in favor of the student. At the federal level, federal District Court Judges Sweet, Mann and Gold all reversed the SRO in our cases and found that, just as the IHO had originally ruled, the DOE failed – for a number of reasons – to provide our client families with a FAPE. The DOE has noticed appeals in each of these matters, which means that the Second Circuit will be hearing and deciding these cases sometime in the next calendar year. Here are some of the issues that the Second Circuit will be reviewing:
- The “Four Corners” of the IEP
In R.E. v. New York City Dep’t of Educ., Judge Sweet, in reversing the SRO, has recognized that parents necessarily must rely upon the express provisions that are within the “four corners” of the DOE’s IEP documents. Parents have nothing else to go on before either giving consent or electing to go to due process. In R.E., Judge Sweet held that it was error for the SRO to go beyond the express terms of the IEP to rely upon what the DOE’s witnesses claimed they “would” do for R.E., despite what the IEP provided. The “four corners” issue is one that comes up in hearings time and again and we are hopeful that the Second Circuit will agree with Judge Sweet.
- Parent Counseling and Training Must Be In The IEP
Federal and State Regulations mandate that “provision” be expressly made for individualized parent counseling and training as a related service for students diagnosed on the autism spectrum. In P.K., the court held that the failure to provide “parent counseling and training” in the IEP, coupled with other inadequacies, amounted to a FAPE deprivation.
- The Need To Examine FAPE Via A “Prospective” Analysis
So often at impartial hearings, the NYCDOE presents evidence of what it allegedly “would have” or “could have” done had the students attended the District’s proposed program and placement. In R.K., the district court found that the District’s burden is not satisfied by revisionist testimony as to what ostensibly “would have” been provided to the student – especially where no such provisions were expressly made a part of the IEP. In R.K., the court held that the court must apply a prospective analysis to determine whether the IEP is “reasonably calculated” to provide a FAPE.
- FBA as a Necessary Pre-Requisite To Any BIP
In R.K., Judge Mann held that the omission of an FBA (functional behavioral assessment) and a proper BIP (behavioral intervention plan) is a deprivation of FAPE, when they are the very tools that are designed to address the kinds of interfering behaviors that R.K. displayed.
We are hopeful that the Second Circuit will affirm the underlying district court decisions in R.E., R.K. and P.K., and we will report on the Court’s decisions as they come down.
May 14, 2012 - save The Date!
We are proud to announce that on May 14, 2012, at 6:00 p.m., Gary will be honored for his work at the McCarton Foundation's 11th "Celebration of Learning." Details to follow.