Winter 2009-2010
The Mayerson Report

Holiday Issue

In This Issue
NYC Public Advocate Bill De Blasio
Jose P: Why Is It Important
RSAs: Common Problems and Solutions
Why the NY Legislature Needs to Create a Panel of State Review Officers
My Child Needs a Specialized School AND a Home Program
Contact Us
Gary S. Mayerson

Senior Counsel
Tracey Spencer Walsh

Brianne N. Dotts
Janna C. Wince

Office Manager
Doris Fernandez

Mauricio Bertone, Jr.
Nury Alvarez
Pebbles Quevado

Maria McGinley
Kate Goldwasser

Financial Administrator
Valerie Harris
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NYC Public Advocate Bill De Blasio
visits Mayerson & Associates

By: Doris Fernandez

DiBlasio Visits M&AAs you may be aware, Bill De Blasio is New York City's newly elected Public Advocate, having won by a large margin.

On Friday, December 4, 2009, Bill visited Mayerson & Associates to tour our new office expansion and renovation, and speak with Gary regarding a variety of critical issues affecting the autism community.

We offer our congratulations to Bill in his new role and look forward to his continued advocacy on behalf of children with special needs and their families.

The DOE's 1988 Consent Order in Jose P.
Why It's Important to Parents in the Site Selection Process

By:Brianne N. Dotts

Parents living just about anywhere BUT New York City can expect placement location discussions to occur right at their child's IEP meeting.  Not so in New York City.

In NYC, parents seeking to discuss the subject of placement location at the IEP meeting will normally be told that placement decisions cannot be discussed or made at the IEP meeting, and that such decisions will be made by a "placement officer" (who has not even attended the IEP meeting!)  Weeks, sometimes months later, parents will receive a "Final Notice of Recommendation" - or FNR - a letter from the placement office.

For years, we have been alleging that this process is contrary to law and statute.  Recently, we uncovered an additional fact that may prove to be an even stronger "Prong I" claim for placement purposes.  In 1988, in the class action lawsuit, Jose P. v. Ambach, 669 F.2d 865 (2nd Cir. 1982), the DOE signed a "Consent Order" pursuant to which it assumed numerous affirmative obligations in the placement site selection process.  The first obligation is to have a placement officer present at the IEP meeting, if possible.  If having a placement officer at the IEP meeting is not feasible, the DOE is still obligated under the Consent Order to make diligent efforts to arrange a meeting between the placement officer and the student's parents PRIOR TO any placement selection, so that the placement officer can provide important information to the parents, such as the ages and functioning levels of the other students in the recommended class.

By all appearances, the DOE has been routinely violating its own Consent Order for many years.  We have been alleging non-compliance with the DOE's consent order in many of our active hearings this past Fall.  While we anticipate that this additional violation will help families win the Prong I issue this year, we anticipate that for the 2010-2011 school year, the DOE may change its procedures to attempt compliance with the consent order.  We will believe it when we see it.  In the meantime, client families should alert us if they are experiencing any changes from the DOE in the IEP or site selection process so that we can help you respond appropriately.

What They Are and Problems That Arise

By: Tracey Spencer Walsh

A common question for parents is how RSAs (Related Service Authorizations) work.  In the event that a DOE provider is not available, the Office of Related and Contractual Services (ORCS) for District 75 will issue a "transmittal" to a contracted agency.  If the agency is not available, the parent of a school-age child (not preschool) will be issued an RSA to allow a family to secure an independent provider paid for by the DOE.  Related services include: speech and language therapy, physical therapy, and occupational therapy.

A "List of NYC Department of Education Clinicians and Therapists Approved to Provide Related Services as Independent Providers" should accompany the RSA.  The independent provider is permitted to come to the school or the child's home, or a caregiver may take the child to the provider's office (carfare reimbursement is available).  The independent provider who is servicing a child can only provide services before or after school.  According to the DOE website, any questions regarding the RSA process, should be directed to Maria Leo at (212) 802-1535 for assistance.

Your child's IEP may mandate these related services. While the IEP may not be appropriate for your child, you might wish to accept the related services on a without prejudice basis.  This is where RSAs can be of tremendous assitance.  The DOE issues an RSA which serves as a "voucher" for services.  Related service providers who contract with the DOE accept the RSA rate and the DOE pays the providers directly.  You are not responsible for paying the service providers who are servicing your child with an RSA.

Common Problems with RSAs
1. The RSA is wrong as written.  Either the wrong service appears on the RSA (e.g., PT, not OT), or the wrong frequency or duration is listed (e.g., 2x30, and IEP says 3x45).
2. No therapists on the "list" who accept RSAs are available to fulfill the mandate.
3. Therapists say they are "not allowed" to provide services on weekends.
4. You were promised RSAs, but they never arrive.

What Can I Do?
When trying to "fix" an RSA problem, understand that you are dealing with a bureaucratic behemoth.  This year in particular, we had many inquiries from parents concerning RSA issues.  If you experience an RSA problem:
1. Initially, call Maria Leo at (212) 802-1535 and your CSE Chairperson and tell them the problem.  As always, follow up on your telephone call by faxing or emailing a letter to the person you spoke with that recounts your conversation, what the person told you to do, or what she said she would do to help.
You can always request that the DOE convene an IEP meeting to resolve the problem of receiving related services.
3. If all else fails and you can afford to do so, find a private therapist and pay for the services privately.  You can seek reimbursement for these services as part of your due process demand, provided you have put the DOE on notice of your claim.
4. What if I cannot afford to pay privately for the related services?  As part of your due process demand, you can seek compensatory education and prospective funding (also known as Connors funding).
If you are not able to resolve your RSA problems directly with the DOE, your recourse is through a due process demand.  Just as we cannot force the DOE to develop an appropriate IEP for your child, we cannot force the DOE to fix your RSA problems outside of due process. 

Why the NY Legislature or Commissioner Need to Create
a Panel of State Review Officers

By: Gary S. Mayerson

In New York, if a parent of a child with a disability is in disagreement with the school district's proposed IEP, that parent may seek appropriate relief via an "impartial hearing."  In NYC alone, several thousand parents file for such impartial hearings each year.  What happens, however, when parents win their hearing before the Impartial Hearing Officer (IHO), but the school district then takes an appeal to the Office of State Review?  What are a parent's chances when such an appeal is taken?

In New York, unlike the situation existing in most other states, appeals taken from IHO decisions are now being decided by a single State Review Officer (SRO), Paul Kelly.  This situation has created an undue concentration of adjudicatory power.  Even worse, there is compelling statistical evidence that Mr. Kelly's decision-making is grossly biased in favor of school districts and against parents, even in those cases where the school district has admitted to failing to provide an appropriate educational program. Please understand, I am saying this even though we have won many appeals at the SRO level.

Initially, the Office of State Review was founded to adjudicate appeals from the administrative determinations at the IHO level because of concerns that the State Education Department had an inherent conflict of interest that disqualified it from adjudicating such appeals.

For a period of years, the system seemed to work well enough.  Decisions rendered by the Office of State Review were not then decided by a single SRO, but rather were decided by a number of different SROs chosen on a random lottery basis, much like a litigant filing in federal court might be assigned to any one of a number of federal District Court judges and magistrates.

Inexplicably, at the very same time that the number of filings for impartial hearings were perceived as going up in New York State (roughly 2004-2005), the Office of State Review's adjudicatory power somehow was concentrated in the hands of a single individual - Paul Kelly.

In July 2007, the Wall Street Journal ran a front-page story concerning the activities of Mr. Kelly.  To say the least, this investigative piece raised serious questions concerning Mr. Kelly's lack of impartiality, a potential conflict of interest in Mr. Kelly's living arrangements (living with senior State Education Department attorney, Kathleen Surgalla), whether or not Mr. Kelly was biased in favor of school districts and against parents, and whether Mr. Kelly was pressuring or intimidating subordinates in the decision rendering process.  In order to probe this issue further in a more meaningful manner, we hired additional (law student) interns for the summer of 2009 with the idea that we would review the decisions that Mr. Kelly rendered after publication of the Wall Street Journal article when, presumably, Mr. Kelly would have been on his very best behavior.

We analyzed 187 reported decisions by Mr. Kelly from the beginning of 2008 through June 2009.  One hundred and two (102) of the analyzed decisions were Burlington/Carter tuition funding cases, and of those cases, nine involved a request for "prospective" (Connors) funding. The federal Connors decision offers the basis for "prospective" funding relief for those parents of relatively modest financial means who simply cannot afford to bring a pure reimbursement case.  Without Connors, many children with disabilities would simply go without.

In nine out of nine reported cases that we were able to identify as involving prospective (Connors) funding (even where the student had won Connors funding from the IHO), the SRO ruled against the student.  This 100% track record (in favor of school districts) on the part of Mr. Kelly speaks volumes.

Based on our analysis, even in non-Connors cases, the statistics would seem to indicate that:

  • Looking at tuition reimbursement cases in which the SRO "annulled" the IHO's decision, 98% of those annulments were in favor of the school district, while only 2% were in favor of the student.
  • Looking at tuition reimbursement cases in which the SRO "deferred" to the findings of the IHO, 76% of those deferrals resulted in a decision in favor of the school district, while only 24% of those deferrals resulted in a decision in favor of the student.
  • In tuition reimbursement appeals brought by the school district, the SRO overturned the IHO's award of tuition reimbursement 42% of that time, while in contrast, in only 1% of the tuition reimbursement appeals brought by the student did the SRO overturn an IHO's denial of tuition reimbursement.
  • In 43% of tuition reimbursement appeals, the SRO deferred to the IHO's denial of tuition reimbursement, while in contrast, in only 13% of tuition reimbursement appeals did the SRO defer to the IHO's award of tuition reimbursement.
The Commissioner's Regulations, 8 N.Y.C.R.R. Sec. 279.1(c), mandates that the Commissioner adopt rules and regulations to ensure impartiality in the SRO appeal system.  The recently departed Commissioner, Richard Mills, apparently never fulfilled that mandate before leaving office.  Now we are all paying the price.  Instead of the "rule of law," we now have the rule of a single person.  Clearly, something has to give.  The current situation cannot be permitted to continue.

We now have a brand new Commissioner of Education, Dr. David Steiner, who recently assumed his new position following a distinguished background as Dean of the Hunter College School of Education.  We are hopeful that Commissioner Steiner will implement rules and regulations that will firmly restore the rule of law and instill public confidence in the integrity of the appeal system.  In our view, the Commissioner should establish a "panel" of SROs so that appeals at this level will no longer be decided by a single individual.
My Child Needs a Specialized School
AND a Home Program

By: Mauricio Bertone, Jr.

Some children require the additional support of receiving therapies at home, including ABA therapy, in addition to placement in a specialized school.  It will come as no surprise that the DOE typically will not include home-based services, including ABA, on the IEP, and you will have to file for due process to seek reimbursement for your child's home program.  In order to prevail at due process, we have to prove the "appropriateness" of the home services for which you seek funding. This evidence may include:
  • Documentation and testimony that data is collected for a home ABA program and/or that "session notes" are written for other types of related services (e.g., OT, PT, speech).
  • Documentation and testimony about any "log books" that are maintained.
  • Testimony that there is adequate communication between the home program professionals and school staff.
  • Testimony that there is adequate communication by the "team" of therapists through team meetings, telephone conversations, emails, etc.
  • Testimony that the home therapists communicate with the parents and that the parents observe and/or interact with the therapists during therapy sessions for parent training and counseling.
  • Documentation and testimony about progress reports written by the home therapists (the reports should be grammatically correct and free of diverting typographical errors) - the progress reports should NOT indicate that the home program is "optimal" or is "maximizing his/her potential" as there is no entitlement to an "optimal" or ideal program.
  • Documentation and/or testimony that the home program is consistent with and/or complements the child's school program (e.g., ADL skills, interfering behaviors).
  • Documentation and/or testimony that professionals recommend the home program as a needed and appropriate component of your child's educational program - it is not enough just because you think it is necessary.
  • Documentation and/or testimony that the home program works on skills NOT directly addressed at school (e.g., certain ADL skills), AND/OR the home program works on skills to generalize and prevent regression.
It is very important that you send to our office (addressed to the primary paralegal assigned to your case) all recent progress reports (1 year or sooner) and other documentation in a timely manner.  We have disclosure deadlines that we must meet to prepare for your hearing, and if we do not have your documentation in a timely fashion (e.g., two weeks before hearing so that we have time to review and duplicate it), we may be precluded from entering into evidence documents that will help win your case! 

Check your email for interim updates. 
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