Spring 2010
The Mayerson Report

In This Issue
Our First Ten Years
Can the DOE "Recoup" Pendency Payments?
Equitable Circumstances
Has Your Child Been Suspended?
Gary's article in Spectrum Magazine
Contact Us
Gary S. Mayerson

Senior Counsel
Tracey Spencer Walsh

Brianne N. Dotts

Office Manager
Doris Fernandez

Mauricio Bertone, Jr.
Nury Alvarez
Pebbles Quevado

Financial Administrator
Valerie Harris
Join Our Mailing List
Doris on the Phone
Doris Fernandez,
Office Manager
Doris on the Phone
Gary's new office

Doris on the Phone
Senior Counsel
Tracey Spencer Walsh and Maria McGinley

Doris on the Phone
Paralegals Nury Alvarez
and Pebbles Quevedo
March 2000 - March 2010
The First Ten Years

By: Gary S. Mayerson

Ten years ago, Mayerson & Associates was founded as the first law firm in the nation dedicated to the legal representation of individuals diagnosed on the autism spectrum.
Mayerson & Associates was responsible for the first "autism" case to reach the highest court in the country - the U.S. Supreme Court.  Since our inception in March 2000, we have participated in three cases at the Supreme Court level, affirming important principles of statutory protection along the way - principles that guide decision-making at the administrative level.
We also have expanded the scope of our practice to include housing and employment discrimination.  Our important work and successful result in the recent New York City Housing Authority v. Peter Hightower (see article from Spectrum Magazine reprinted below) offers a compelling window of insight into the social, communication and political challenges that persons with autism can expect to face after being hired in positions of gainful employment.  The inevitable transition to adulthood will precipitate further expansions of our practice. With the rate of autism in the general population now tracking at approximately 1 in 110 (1 in 70 boys), there clearly is much work to be done.
Most recently, we further increased our attorney ranks by adding Maria McGinley, who just learned that she passed the N.Y.S. Bar Exam.  Maria started with Mayerson & Associates as an intern during the summer of 2009.  She is a graduate of New York Law School.

Upon graduation from college, Maria accepted a fellowship with the New York City Teaching Fellows at the same time she secured a Master's Degree in teaching from Fordham University.   Maria is dually certified in New York State as a special education teacher and a general education teacher.  Maria's broad experience gives her a unique and valuable perspective.  During her tenure with the NYCDOE, Maria was a special education classroom teacher assigned to a District 75 6:1:1 class of students diagnosed on the autism spectrum. Maria is knowledgeable about TEACCH, Applied Behavior Analysis (ABA), PECS, and educational assessments.  We are very excited to have Maria aboard.
Finally, we are just completing a 6-month office renovation project that consolidates all of our operations within an expanded, yet streamlined, office suite, designed by Dennis Dugan, AIA.  As you can see from the photos, we are ready for the next ten years!
Can the DOE "Recoup" Your Child's Pendency Payments?
  N.Y. Federal District Court says NO!

By: Tracey Spencer Walsh

The federal IDEA statute dictates that during the "pendency" of any due process proceedings, children with a disability shall remain in their then-current placement until all such proceedings have been completed, unless the district and parents otherwise agree. Where it applies, pendency is a valuable statutory entitlement.   If a student has existing pendency entitlements, we invoke and demand such entitlements when the claim is first filed. This may include the direct provision of support services, as well as ongoing funding for tuition and additional services until the case is finally adjudicated. 
During the last two years, the New York City DOE has repeatedly demanded in its responsive filings that parents "repay" amounts paid by the DOE under pendency if the student does not prevail on the merits.  The State Review Officer rejected this notion, but it still has caused consternation and anxiety for parents who have been worrying that they may have to "pay back" pendency payments.  We now have some additional guidance from the federal district court.
On March 17, 2010, U.S. District Court Judge Colleen McMahon rendered a decision in  New York City Dep't of Educ. v. S.S.,  2010 U.S. Dist. LEXIS 25133 (S.D.N.Y. Mar. 17, 2010), holding that the DOE is not entitled to recoup funds that were paid during the child's pendency, even if the DOE ultimately prevails on the merits. 
The Southern District of New York rejected the DOE's position and analyzed the issue under a 2004 Second Circuit decision, Mackey v. Bd. of Educ., 386 F.3d 158 (2d Cir. 2004).  The Mackey decision reinforces the notion that Congress enacted the pendency entitlement section of IDEA so that all children with disabilities may remain in their then-current placement until the dispute is ultimately resolved, regardless of which party prevails on the merits. In fact, even before Mackey, the State Review Officer (SRO) had held that a school district had no right to recoup pendency tuition payments.
It is clearly a welcome relief for parents to know that pendency continues to be recognized for the automatic and unconditional entitlement that it is under the statute, and that its protective power cannot be turned against parents who seek to vindicate their children's rights.  This does not mean, however, that it is never possible.  We caution families that under certain egregious circumstances, it would be possible to have to "pay back" pendency, and families should consult with counsel to determine whether or not they are at risk.
A Prong 3 Problem:
o Notice Amounts to
No Reimbursement

By: Brianne N. Dotts

We have long counseled parents on the importance of giving the school district appropriate notice before implementing a unilateral private educational program. This is notice that must be provided in writing or at least at an IEP meeting. We have warned that if parents fail to give appropriate notice, a court could find that the parent failed to properly communicate and cooperate with the district and reduce or even preclude the award that otherwise would be rendered. Just that kind of fact pattern was presented in a recent federal court case handled by another law firm. The federal District Court found that the parents' failure to properly and timely notify the school district amounted to inequitable conduct.  The court held "these parents [are] not entitled to an award of reimbursement."
In A.D. v. Bd. of Educ., 2010 WL 447371 (S.D.N.Y. Feb. 9, 2010), the parents had already arranged for six months of private tutoring and sent in the application to the private school before the CSE meeting convened.  At the January meeting, the parents also failed to disclose that they were already taking steps to find a private placement for the next school year.  As of March 1, the parents had already decided to enroll their child at a private school and still failed to disclose this and put the district on notice that they would seek reimbursement. The court believed that "they certainly had a duty to inform the district that they would be seeking tuition reimbursement for the placement."   
Interesting to note, even though the school district failed to convene a CSE meeting in June as it was supposed to do, the court commented that the parents "let that slide" (presumably by not asking the district to convene the IEP meeting) and continued to make "substantial tuition payments" to the private school.  The court found that "this suggests a plan to wait to notify the district about the failure to make a placement recommendation until it was too late to change the student's placement."  The court found it troubling that the parents did not notify the district of their claim until after they made the final tuition payment.
This case is a reminder on how critical it is to give proper and timely notice to your school district. The timing and content of notice is something that often turns on the unique circumstances of your child's case.  As such, it is an issue that you should discuss with counsel, especially in light of the potentially disastrous consequences of failing to give proper notice.

The Suspension Process

By: Maria C. McGinley

In recent months, we have seen an increase in Superintendent's Suspensions for classified (IEP) students.  In fact, in New York City, the number of Superintendent's Suspensions increased by more than 76 percent between 2000 and 2005, jumping from 8,567 to 15,090.    

How does a child with a disability get suspended?
School districts may suspend or remove a student with a disability from school in accordance with the procedures and safeguards set forth in both federal and state law.  Under New York law, the school district must conduct a disciplinary hearing to determine if the student is guilty of the misconduct before a suspension penalty beyond 5 days may be imposed.  If your child is ever suspended, it is important to consult with counsel right away. 

What is an "Interim Alternative Educational Setting?"
An interim alternative education setting is a temporary educational placement where a student is placed after the incident, pending the adjudication of the Suspension Hearing.  A student with a disability is entitled to continue receiving services and modifications pursuant to his or her individualized education program (IEP).   

What are the different kinds of suspensions?
In NYC, suspensions fall into one of two categories: Principal's suspensions or Superintendent's suspensions.  A Principal's suspension lasts anywhere from one to five days and results in a relatively informal conference to determine the outcome of the suspension. A Regional Superintendent's suspension may result in a period of suspension exceeding five days and requires a suspension hearing.  A suspension hearing must be scheduled within five days of the suspension.  A hearing officer will make findings of fact and recommend to the Regional Superintendent a measure of discipline.  

What happens if the Regional Superintendent finds that the student committed the act(s) charged?
Once a finding of facts is made, the Regional Superintendent makes a decision.  That decision will include a determination regarding whether to overturn or sustain the suspension, the appropriate assignment of the student, and the appropriate disposition relating to what will be reflected in the student's records.  

Manifestation Determination Review

Students with disabilities must be referred immediately to the CSE for a manifestation determination review ("MDR") if the student's suspension is sustained for more than ten school days, or if the suspension results in a disciplinary change of placement.  The purpose of the MDR is to determine whether the student's behavior is related to, or a manifestation of, his or her disability.  If the behavior is a manifestation of the student's disability, no further disciplinary action may be taken.  If the behavior is not  found to be a manifestation of the student's disability, the student may be disciplined further. 

What does this all mean for you and your child?
The foremost objective is to take the steps needed to prevent students with disabilities from being suspended unnecessarily.  Many factors play into ensuring that students with disabilities are in appropriately supportive placements.  The development of an appropriate IEP equipped with an appropriate school placement and the appropriate level of additional support services is, perhaps, the most crucial element in preventing a child from exhibiting behaviors that could result in a suspension.  Otherwise, your child's IEP might turn into an "IED."

Bear in mind that school districts are responsible for conducting functional behavior analyses which assist in developing behavioral intervention plans for students with disabilities to promote meaningful learning and to address behaviors which negatively impact on a student's ability to learn.  If a student already has a behavioral intervention plan and has been or is in the process of being suspended, this plan must be reviewed and modified as necessary to address the behavior.

If your child is disciplined in school - whether it be a Principal's Suspension, a Superintendent's Suspension or otherwise - or even if you discern an uptick in behaviors being reported by the school, classroom teacher, or related service providers, contact our office as soon as possible.  As always, early intervention is best.
New York City Housing Authority
v. Peter Hightower part 1

Reprinted from the April/May 2010 edition of
Spectrum Magazine:

By: Gary S. Mayerson

Just what is it that parents of children with autism hope for when they struggle to secure and pay for appropriate and effective educational programming?  What is the ultimate goal or objective when children reach adulthood and shed their IEPs?

High on most every parent's list would be promoting independence and self-sufficiency.  After all, it is a given that no parent can live forever.  As children with autism become adolescents, vocational and related "transition" training is essential.

What happens, however, person with autism gets the job?  What happens when that employee begins to be excluded and "targeted" by his or her co-workers?  What happens when the employee finds himself on the receiving end of unfounded charges intended to result in the termination of his employment?

In 2008, my firm met with Phyllis Brockett, the single mother of Peter Hightower, a young man with autism.  As Brockett explained, Peter graduated high school with an IEP and was going back to school to earn a GED diploma.  Peter had been working for more than ten years as a "Caretaker J" (custodian) for the New York City Housing Authority, working out of the Linden Houses housing project in Brooklyn.  Among his other duties, Peter was responsible for cleaning out the elevators and hauling "bulk" and other refuse to the curb for pickup by the Department of Sanitation.  Peter's job with the city provided the family's only source of income.

We learned that over the course of some 10 years, Peter had an exemplary work record.  Peter almost never called in sick, he almost always came to work on time, and at least until recently, he had never been "written up" for any issue relating to job performance.  Peter kept largely to himself, and Brockett had managed to keep her son out of trouble by making sure he was focused and directed.  Brockett had no formal training as a job coach or behavioral consultant, but her good judgment and common sense had served Peter well for many years.

As Brockett related, everything changed as soon as Peter's unit got a new supervisor, Ms. Drew.  According to Brockett, Drew did not care much for Peter, and "rode him hard" from the start.  Things got so bad between Drew and Peter that eventually, Brockett went to speak with Drew herself to find out what the problem was.  Drew suggested that Peter transfer to another Housing Authority site serviced by persons with disabilities where Peter would be working with people "like him."  Peter did not want to transfer out of his Linden Houses assignment (where he and his mother also lived), and he was proud to be working with a crew of neurotypical co-workers.  Brockett respectfully refused Drew's offer to transfer Peter to a remote job site where, in essence, he could be with others of his own kind.

Brockett explained why she was seeking legal representation for her son.  Drew apparently had filed formal charges against Peter, claiming that he had threatened her with bodily harm in violation of the Housing Authority's zero tolerance "Violence in the Workplace" policy.  Drew was claiming that Peter had threatened to "slap" her.  If these "threat" charges were sustained after a trial, Peter's employment would most certainly be terminated.  Brockett categorically denied these charges, and said that Peter was innocent.  She also was very candid about her finances - there was no money for lawyers and if we accepted the case, it would need to be a pro bono matter.

While Brockett's story was compelling, I told her that I would need to speak directly with Peter before making a decision whether or not we would take the case.

Days later, Peter came to the office with his mother.  Peter told us in his own words what had happened and, more importantly, what had not happened.  Peter was articulate and polite.  Peter produced a copy of his diary - a running, day-to-day, handwritten journal of the things that were then occurring in Peter's life.  To be sure, Peter's diary reflected that there was interpersonal conflict between Peter and Drew concerning the performance of Peter's job responsibilities.  However, the diary also supported Peter's explanation that he never threatened to "slap" or hurt Drew and that he would never hurt anyone.  Peter's diary reflected his feelings of being pushed and "ridden" by Drew.  Indeed, Peter's diary entry for the day in question was that he wanted to meet with Drew to "slap her with my words."  In other words, Peter simply wanted to confront Drew with his "words" to communicate a grievance.  I was confident that we could make the judge understand what had happened here, and preserve Peter's job.  To do this, Peter would take the stand in his own defense.  I told Peter and his mother that we would be honored to take the case.

Continued in next issue (part 2)
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