A Piece of My Mind …
By Gary Mayerson
The 2016 presidential election is over but for its evolving consequences. Here is my take on what is shaping up to become the new normal and the likely impact on our client families.
While some might disagree, the worst news is not the selection of Betsy DeVos as the incoming Secretary of Education. In my view, far worse is the president-elect’s choice of Senator Jefferson Beauregard (“Jeff”) Sessions (R-Alabama) to become the nation’s new Attorney General–the person who is supposed to be ensuring compliance with important civil rights statutes such as the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA). Sessions’ record on civil rights issues is checkered, to say the least.
In 1986, during the Reagan administration, the Senate Judiciary Committee rejectedSessions’ nomination to become a federal district judge in Alabama. The rejection (a highly unusual event) came after the Judiciary Committee had questioned Sessions about bizarre statements Sessions allegedly had made concerning the Klu Klux Klan, the NAACP and other organizations. The Committee also heard testimony that while acting as the U.S. Attorney in Alabama, Sessions repeatedly referred to an African American staff member as “boy.”
Sessions’ rejection by the Senate Judiciary Committee clearly was not a resume killer because in 1997, he was elected to the Senate itself. In 2000, just three years later, Senator Sessions publicly decried the “mandate” of the federal Individuals with Disabilities Education Act (“IDEA”), as follows: “…we have created a complex system of federal regulations and laws that have created lawsuit after lawsuit, special treatment for certain children [is] a big factor in accelerating the decline in civility and discipline in classrooms all over America.” The entire IDEA statute offers individualized and “special” treatment for children with special needs. That was the whole idea of IDEA. Clearly, Sessions is no fan.
In recent years, we have appreciated the intervention and support of the Justice Department in several of our precedent setting cases where important civil rights were at stake; T.K. v. NYCDOE (bullying); T.M. v. Cornwall (“least restrictive environment”) and Fry v. Napoleon (as amicus) (requirement to “exhaust” administrative remedies). Given Sessions’ history, a Justice Department proceeding under his stewardship is unlikely to vigorously enforce IDEA and ADA protections. This necessarily means that Mayerson & Associates and other law firms advocating for civil rights must be prepared to go it alone–reason enough why it is essential these days for firms such as ours to have a deep and talented “bench.” Whether the challenge is an impartial hearing or an appeal to the U.S. Supreme Court, Mayerson & Associates is ready, willing and able to meet that challenge.
At the very same time that the Justice Department and the Department of Education are being reorganized and redirected, the Supreme Court is poised to hear argument in Endrew F., a critical case where the high court will define the scope of the minimum educational benefit that the IDEA statute calls for; in other words, where FAPE begins. Mayerson & Associates, Kaye Scholer and other firms recently joined forces to file an amicus brief on behalf of Autism Speaks and other organizations in support of the more robust, “meaningful” standard that, shamefully, so many of the nation’s school districts are advocating against.
Given the current confirmation delay, it is anyone’s guess whether the Supreme Court hearing argument in Endrew F. in 2017 will be an eight or nine member court. However, the high court’s decision in Endrew F. will have a monumental impact on the level and quality of educational programming that special needs students will be receiving going forward.
Lastly, there is no question but that the president-elect’s promised personal and corporate tax cuts will give some Americans a raise. However, these same tax cuts will only further constrict the already inadequate federal funding of IDEA to the states, requiring municipalities and local school districts to choose between raising taxes, cutting programs to “meet budget,” or both. Such changes inevitably will lead to increased conflict between parents and their school districts.
From the reports we are receiving from some of our families, we already are seeing some signs indicating that the New York City Department of Education is taking steps to reshuffle the deck for the upcoming 2017-2018 school year. When those steps start to cross the line and become violations, we stand ready to take whatever measures are needed to ensure the rule of law.
Two Longstanding Client Families Are Awarded Significant Relief
By the Federal District Court
By Jean Marie Brescia
In October, United States District Court Judge Kiyo A. Matsumoto reversed the State Review Officer (“SRO”) to reinstate all of the reimbursement relief that had been ordered by the Impartial Hearing Officer (“IHO”) after a six-day hearing. The relief ordered in T.Y. v. New York City Department of Education includes full tuition reimbursement at the Rebecca School, five hours of after-school speech therapy, the provision of a 1:1 paraprofessional, and transportation costs and expenses.
In November, United States District Court Judge Ann Donnelly reversed the SRO to reinstate nearly all of the reimbursement relief ordered by the IHO after an eight-day hearing. The relief ordered by Judge Donnelly in G.O. and T.O. v. New York City Department of Education included full tuition reimbursement at the Rebecca School, as well as funding for 10 hours per week of after school ABA support and transportation expenses.
In both cases, the IHOs had ruled for the students after relying upon extensive testimony from the student’s teachers and therapists, i.e. professionals who were personally familiar with the student’s unique needs. When the IHOs compared the students’ demonstrable needs against the DOE’s proposed IEPs, the IEPs came up short.
The SRO had reversed the decisions of the IHOs and ruled that the DOE had not done anything wrong. Both families then appealed to the United States District Court. Each of the federal decisions faulted the SRO for ignoring the testimony given by the student’s teachers and therapists and for relying exclusively on the testimony of a single DOE witness who had never even met the student. Both judges held that the SRO’s decisions were not well-reasoned or supported by the weight of the evidence.
Both decisions recognized the importance of after-school services. In T.Y. , the court focused on the DOE’s failure to consider T.Y.’s need for after-school speech and language therapy. Similarly, in G.O., the court found that the student’s after-school therapy hours were needed to address the student’s behaviors.
In addition to the significant funding relief that the federal district court awarded in each case, the courts’ decisions establish a new and enhanced level of “pendency” protection for both students going forward. In addition, each family is now entitled to recover legal fees and related costs attributable to the hearing held before the IHO, the DOE’s appeals to the SRO, and the further appeals to the federal district court.
We believe that the T.Y. case underscores that each child’s IEP must be individualized to meet the student’s unique needs. The G.O. case, on the other hand, is important because it shows how critical 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 of the student’s needs.
Both cases demonstrate the importance of building an excellent reviewable record at the IHO (hearing) level. Mayerson & Associates’ winning ways are the result of hard work, many years of experience, careful preparation and attention to the kinds of evidentiary detail that is meaningful to a reviewing court.
Mayerson & Associates Presents At Autism New Jersey 2016 Annual Conference
By Jacqueline DeVore
In October, Maria McGinley and I gave two workshops at Autism New Jersey’s Annual conference, held in Atlantic City. Our workshops involved two very important topics, “Analyzing the IEP: Identifying and Filling Gaps to Meet Each Student’s Needs,” and “Developing Individualized, Thorough, and Effective Transition Plans.” Our workshops were very well attended and we were thrilled to see some of our client families in attendance. Our workshops inspired some lively discussions between attorneys, parents, and educators alike and we look forward to presenting again next year.
Maria and I also attended an excellent workshop given by Gerald Turning, Jr., a Captain in the Tinton Falls, N.J. Police Department and a parent of a child with autism. Captain Turning’s presentation was entitled “Empowering Autism Families: The Complete Guide to Building a Relationship With Your Police Department.” Captain Turning provided a very candid and practical analysis, acknowledging that far too often, behaviors associated with autism can be misinterpreted by law enforcement and, for that reason, parents may fear calling the police. While law enforcement “trainings” are important, Captain Turning emphasized that nothing can take the place of establishing a meaningful relationship with your local police department.
Second Circuit to Rule in L.K. v. New York City Dep’t of Educ.
By Maria McGinley
On Monday, December 12, 2016, Gary Mayerson and I argued L.K. v. New York City Department of Education before a three-judge panel at the Second Circuit Court of Appeals. During the underlying trial, the DOE admitted that it failed to offer L.K. a free appropriate public education (FAPE). At the trial, our firm presented nine witnesses attesting to L.K.’s severity and significant needs; needs that require an intense 1:1 school-based program and a comprehensive after-school program of services.
The federal district court had agreed that L.K. required “some” level of after-school services, but failed to decide exactly what that level should be. Where, as here, the underlying record supports a finding that L.K.’s supplemental services were “reasonably calculated” to provide him with a meaningful educational benefit, we argued that full funding for those services should be awarded absent evidence that the services, or their cost, were “unreasonable” or “excessive.”
The Second Circuit panel (Judges Hall, Pooler and Lohier) was very engaged and asked how, if at all, the United States Supreme Court’s anticipated 2017 decision in the Endrew F. case (defining FAPE) might affect the decision in L.K.‘s case. We argured that the ultimate decision in L.K. should not turn on the high court’s FAPE ruling in Endrew F., given that the DOE admitted that it had failed to provide L.K. with a FAPE.
We anticipate that the Second Circuit will likely order a remand back to the federal district court to finally decide and fix the level of supplemental services that L.K. should have been approved for.
Supreme Court: Long Island Group Home Must Stand Trial
By: Maria McGinley
We previously have written about the nationwide problem of adults with autism being victimized in Individual Residence Alternatives (group homes). In one of our cases, a Nassau County Supreme Court Judge (Libert, J.) has denied a Long Island group home’s motion to dismiss claims for fraud, breach of fiduciary duty, negligence and gross negligence. In this connection, the Court also has ordered the group home, through its counsel, to provide our firm with a contested video recording of our client that the group home had been withholding on the basis that it was only for “quality assurance” purposes. We requested the video because we believe that it will show our client engaging in repeated acts of self-injury over time without appropriate response from the IRA and its staff. The Court noted in its decision that the State’s Justice Center “substantiated a charge of neglect.” We are pleased to report that our client’s application to move to an alternative IRA was recently approved and we are now able to focus our efforts solely on the litigation.