Fall 2009
The Mayerson Report

Back To School Issue

In This Issue
FRENCH FRIES: The New Book for Siblings
Profit vs. Not for Profit & Other Standing Issues
Prong III: The Parents' Duty to Cooperate
Pendency: An Ongoing Battle
Reimbursement Submissions: Common Reasons for Delay
Contact Us
Gary S. Mayerson

Senior Counsel
Tracey Spencer Walsh

Brianne N. Dotts
Jennifer M. Frankola
Janna C. Wince

Office Manager
Doris Fernandez

Chief Paralegal
Mauricio Bertone, Jr.

Pebbles Quevado
Nury Alvarez

Financial Administrator
Valerie Harris
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The good news for 2009-2010 is that there is increased federal IDEIA funding and economic stimulus money to continue to support special education programs, and that the national and local economy appears to be stabilizing, and no longer in a "freefall."  Nevertheless, we continue to expect school districts, including New York City, to continue to invest considerable resources, both at the IHO and appeal levels, to challenge parents who are compelled to seek alternative programs and services.

This year, we increased our attorney staff (to five), enhanced our paralegal support and reimbursement submission support services, revamped the mayerslaw.com website from scratch, and took on adjoining office space to make sure that we will be ready to meet whatever challenges will be coming our way.

We are also proud of our ongoing pro bono work at the federal level.  The U.S. Supreme Court's recent 6-3 decision in Forest Grove v. T.A., for example, has had an immediate, positive impact for many of our client families.  For a copy of the decision, please click here.

Best regards.  Enjoy the remaining days of Summer.

Lilli Mayerson's Bestselling New Book for Siblings

By: Gary S. Mayerson

French Fries CoverAutism affects the entire family in a most profound way.  Siblings are often overlooked and getting the short end of the stick.  In the first illustrated children's book of its kind, FRENCH FRIES for SIBLINGS: The Forgotten Children of AUTISM looks at autism and a family's struggles through the eyes of an affected sibling.  In the interest of full disclosure, I am proud to say that the author is my wife, Lilli!

In its very first month of publication, FRENCH FRIES was recognized by one of the nation's largest independent bookstores as its #1 bestseller.  Purchase FRENCH FRIES for a child or family you know.  You can purchase FRENCH FRIES directly from click here.
Profit vs. Not-for-Profit and
Other "Standing" Type Challenges

By: Tracey Spencer Walsh

In the Spring of 2009, the NYCDOE began in certain cases to challenge the reimbursability of schools and programming where the providing agency or school was not formed as a "not for profit" entity.  This was a challenge not necessarily to the appropriateness of the school or programming, but to the legal status of the providing school or agency.

The NYCDOE recently leveled such a challenge by way of a motion to dismiss a case we had brought on behalf of a student attending a school that was not formed as a "not for profit."  We briefed the issue and explained why there is no such restriction in the controlling caselaw.  By decision dated April 30, 2009, the hearing officer denied the NYCDOE's challenge as being erroneous and essentially without merit.  While we consider this kind of challenge to be frivolous, we nevertheless expect the NYCDOE to press this kind of issue on appeal, and with other hearing officers.

On a related issue, hearing officers in two cases not being handled by our office have twice dismissed "prospective" (Connors) funding cases.  One case was dismissed because, according to the hearing officer, the prospective claim had not been properly pleading in the request for due process.  The other case was dismissed on the grounds that the student's family was not obligated by the student's school to pay the tuition to the school if the prospective funding claim was not granted.  In other words, the hearing officer found that the student's parents were not at risk for paying the tuiition, and therefore lacked "standing" to bring the case.  This is an important point that parents and schools should take notice of.  In order to neutralize this kind of "standing" challenge, it may well be important for families to be legally obligated and "on the hook" to ultimately pay back the tuition.

The situation really is no different for the many families who will borrow money from friends or family members to make or advance tuition payments, etc.  If there is no loan and the payment is a "gift," the school district will likely argue that the student's parents are not "at risk" and therefore lack standing to maintain the reimbursement claim.  If, on the other hand, the evidence would show that parents are at risk to pay back the loan, even if the loan is made without interest, the "standing" issue is likely neutralized.

Prong III: The Parents' Duty to Cooperate

By:Jennifer M. Frankola

There are three "prongs" that must be considered in a due process case.  These three prongs are based on case law from the seminal Burlington and Carter decisions.  This analysis asks three core questions:
  1. Did the school district offer the student a "free and appropriate public education (FAPE)?
  2. Is the student's unilateral placement and/or program "reasonably calculated" to provide the student with meaningful educational benefits?
  3. Do the "equities" favor an award in favor of the student and his or her parents?
Hearing officers and judges carefully consider the "equities" in determining whether reimbursement, prospective funding and related relief is appropriate.  The New York State Review Officer has expressly recognized that equitable considerations generally support a claim of reimbursement unless evidence demonstrates that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precludes the development of an appropriate IEP.  There are always exceptions to the "general rule."  Accordingly, parents should be careful of engaging in any conduct that a hearing officer or court might consider as "unreasonable" or "uncooperative."

As a general matter, this means that parents should be mindful of cooperating with and consenting to reasonable requests for evaluations and assessments, attending the scheduled IEP meetings, attending any "resolution" meeting that the school district has not waived, and considering and assessing any placements and programs that are recommended and offered to the student.  This also means putting the school district on notice in a timely fashion, preferably in writing, of the parents' intention to reject the school district's offered program and to place the student in a private placement or program at the school district's expense.  Prong III may also pertain to the reasonableness (and thus, reimbursability) of your provider's hourly rates.

As always, you have any specific questions or concerns, please contact our office.
The Ongoing Battle over Pendency

By: Brianne N. Dotts

What once used to be an "automatic" and "unconditional" entitlement now requires a hearing, at least in New York City.

The pendency or "stay put" entitlement, as a matter of law, attaches automatically and is invoked upon filing a request for due process.  While there is no provision in the IDEIA requiring that a hearing be convened to adjudicate this entitlement, asking for pendency in the due process demand puts the school district on notice that you intend for your child to "stay put" in their current placement or program until all proceedings (impartial hearing and any appeals) are concluded or a settlement is reached.

If the school district refuses to honor your child's pendency entitlements or does not agree on the pendency placement and services, a hearing officer will then decide the issue after the matter is argued and/or briefed.  During the 2008-2009 school year, attorneys from our office attending many hearings solely for the purposes of adjudicating pendency.  We do not expect a change for the 2009-2010 school year.
Reimbursement Submission Procedures:
Common Reasons for Delay in Payment

By: Janna C. Wince

You have a fully executed settlement agreement, pendency order, or a final decision by the hearing officer in your child's favor.  Now what?  What must now be done to secure payment?

Provider Invoices
Most service providers will provide you with a detailed invoice that will reflect the date and rate of service, the type of service that was provided, the time value of the service and the amount that is being billed.  As you pay your bills, please note at the bottom of each invoice the date of payment and form of payment that you used.  If you paid with a check, make reference to the check number.  This will serve as a backup to prevent the school district from saying "we don't know which invoice this check relates to" -- a common excuse we will hear that, until resolved, often delays payment.

If your child is working with multiple providers within the same discipline or has any group treatments, co-treats, or participates in clinics, the invoices should be detailed enough to reflect what rates are being used for each provider.  Many of our client families will maintain a weekly or monthly schedule of their child's services.  This helps the family to check incoming invoices for accuracy as to the date and time reflected for service, particularly in the case of "overlap" or "co-treat" situations.

Proof of Payment
Proof of payment issues are often the culprit in delayed payment situations.  The following are considered acceptable forms of proof of payment:

  1. Checks: If you paid by check, you must submit BOTH the front and back of any checks that have been processed through your bank.  If your bank, like so many banks these days, does not provide front and back images with your statements, you can request a copy through the bank branch, or print a copy through online bank websites.  The business offices of school districts seek to confirm that a check was both written and cashed, and the date that it was processed.  Bank records that only include the front of the check have sometimes been contested resulting in delay.
  2. Credit Card Statements: Another acceptable form of proof of payment are credit card statements.  Here, the school districts are looking for the name of the provider, the date, and the amount that was paid.  You must submit a complete copy of your credit card statement, not simply receipts.  Please note, information not related to the service provider payments can and should be redacted.
  3. Bank Statements: School districts will also accept bank statements as proof of payment if it details what provider was paid, the amount that was paid, and when the check cleared through your bank account.  If you provide a copy of the check that came in your bank statement, school districts will ask for a copy of the back of the check as well (see above).  Again, information not related to your reimbursement can and should be redacted.
An Important Note Regarding Borrowed Funds
Many families will borrow monies from family members or close friends.  When this is the case, the school district will be looking for some form of "loan agreement."  It is possible to establish a loan agreement through testimony, but it is far easier to establish a loan arrangement with an actual, documented loan agreement.

The loan agreement should set forth the amount of the loan, any operative terms, the reason for the loan (i.e, tuition payment, ABA therapy, etc.), the names and addresses of all parties involved with the loan(s), and a statement confirming that even if the case is not successful, the loan monies will still need to be paid by the borrower.

Affidavits are notarized, sworn statements attesting to the provision of services.  For providers, this will include the provider's name, tax ID number, the service that was provided, rate of service, and total amount charged.  The affidavit must be notarized.  Please note that we can notarize affidavits, but only if the person signing the affidavit comes into our office and signs the affidavit in our presence.

The foregoing recommendations are general guidelines.  Specific questions concerning your particular situation can be addressed to Janna Wince.

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