Fall 2010
The Mayerson Report


In This Issue
Transportation Disputes
In Memoriam: Dr. Ivar Lovaas
Tracey's Article in Autism Spectrum News
Introducing Roselyn Disla
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Doris Fernandez

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Are You Having Problems With Transportation?

By: Maria C. McGinley


For most New York City parents, transportation is a critical component of their child's educational program.  Without transportation provided and funded by the DOE, parents may be required to secure and pay for costly private transportation arrangements.
 
Under Title 19 of the New York City Administrative Code and the New York City Chancellor's Regulations, the Department of Education is required to ensure that all students who are eligible to receive school bus service to and from the schools they legally attend are provided with a seat on a school bus.
 
For the 2010-2011 school year, the issue of transportation has become a greater problem than ever before.  This year, the DOE has been arguing for the first time that a student's transportation should be granted under pendency only if transportation was expressly ordered in the most recent unappealed decision or  if transportation was provided in the last agreed upon IEP - whichever document is being used to invoke the student's pendency entitlements.
 
In response, our position has been that, regardless of whether transportation was expressly provided for in the decision or IEP, the DOE is statutorily responsible for providing transportation to students - especially where the DOE has previously provided transportation during its prior course of dealing.
 
It is important for New York City parents to be informed as to their child's right to transportation.  In the event that you incur a problem with your child's transportation and your child is attending a school located in Manhattan,  you should contact the Manhattan Transportation Coordinator, either Charmaine Gaynor, at (917) 339-1774, or Audrey Simon at (917)339-1790. 
 
If your child is attending a school outside of Manhattan or if you are unable to resolve your transportation issue with the Coordinator for Special Education Transportation, you should immediately contact the Office of Pupil Transportation ("OPT").  OPT Customer Service Agents are available Monday-Friday from 6 a.m. to 7:30 p.m. at (718) 392-8855.  You may also email the Office of Pupil Transportation at PupilTransportationTeam@schools.nyc.gov to ask questions, provide service complaints, and request information.

If you have an unresolved transportation issue, it is important that you advise our office so that we can help you to seek reimbursement for any transportation costs you may incur.

In Memoriam:
Dr. O. Ivar Lovaas
(1927-2010)



By: Gary S. Mayerson


In 1981, with the publication of Dr. Lovaas' pioneering work, Teaching Developmentally Disabled Children (popularly known as "The ME Book"), the landscape of the world of autism was quite different than it is today.  In 1981, the incidence of autism in the general population was reported to be only 4 in 10,000, hardly the 1 in 100 world epidemic that autism represents today.  While considered a relative rarity at the time, a diagnosis of autism in the 1960s and 1970s was considered by most to be the beginning of a countdown to institutional care.  To add insult to injury, Bruno Bettelheim and others were disseminating and perpetuating the notion that autism was caused by cold and unfeeling "refrigerator mothers" and other forms of inadequate parenting.  For much of the latter part of the last century, families of children with autism had little, if anything, to hope for.

Dr. Lovaas, who had already been working with children with autism for decades, knew better.  Dr. Lovaas knew instinctively that poor parenting was not to blame.  However, finding the root cause of autism was not Dr. Lovaas' chosen mission.  Instead, Dr. Lovaas focused his energy and attention on developing effective teaching strategies.  Dr. Lovaas believed that children with autism could "learn to learn."  Back in the day, this was considered by many to be an unreachable star.

Just as Thomas Edison's numerous light bulb failures paved the way for Edison's ultimate success, Dr. Lovaas painstakingly identified the "serious mistakes" that he and his colleagues at UCLA had made over the course of two decades in attempting to teach children with autism and other severe developmental disabilities.  Dr. Lovaas knew that the first step to finding an effective, core intervention would be to identify and eliminate the various approaches and strategies that had been tried, but which were demonstrably ineffective.  Dr. Lovaas then worked tirelessly to break down the large and general problem of "disability" into manageable and separate behavioral units.  Through years of trials, Dr. Lovaas further refined his behavior modification techniques and approaches.  Over time, Dr. Lovaas' work in the field became recognized to the point that for many, "Lovaas" became synonymous with the term "Applied Behavior Analysis."

During the 1980s, Dr. Lovaas and his colleagues at the UCLA Young Autism Project further refined their behavioral approaches, and they were fortunate enough to receive an important grant from the NIH allowing a most unusual and intensive approach that had never before been attempted- a forty hour per week one-to-one teaching program.  In 1987, the results of Dr. Lovaas' study, entitled Behavioral Treatment and Normal Educational and Intellectual Functioning in Young Autistic Children were published in the Journal of Consulting and Clinical Psychology, a respected peer review journal.

While there certainly was some controversy over the precise "design" of Dr. Lovaas' study, there had never before been a study reporting such a favorable outcome- many of the students who had been receiving Dr. Lovaas' 40 hours per week intervention program for approximately 2-3 years had recovered function to the point that they were considered virtually indistinguishable from their typically developing peers.  A 1993 follow-up study appearing in the American Journal on Mental Retardation confirmed that some six years later, all but one of the children in the "best outcome" group had retained the gains reported in the 1987 study.  In 1998, the Surgeon General's report on Autism referred to Dr. Lovaas' 1987 study as a "well designed study" that "... demonstrated the efficacy of applied behavioral methods [ABA] in reducing inappropriate behavior and in increasing communication."  Vindication!

In 2002, Dr. Lovaas asked me to write a chapter on ABA litigation for his then upcoming update to The ME Book, Teaching Individuals with Developmental Delays (Pro-Ed).  Dr. Lovaas told me in the charming Norwegian accent that he never seemed to lose despite living in this country for so many decades that his greatest wish was that every parent, whether residing in California, New York or Alaska, would have access to effective autism treatment.  Dr. Lovaas personally encouraged me to form Mayerson & Associates as the first law firm in the nation dedicated to representing children and adolescents with autism.  Dr. Lovaas regularly spoke of the need for insurance reform, as he knew full well the devastating impact autism can have upon the family.  The dedication appearing in Dr. Lovaas' latest book speaks volumes as to his empathy and compassion for the family: "This manual is dedicated to all parents of children with developmental delays in recognition of the heavy burdens they carry, and the models they provide for all parents to follow."

I sat with Dr. Lovaas and his lovely wife, Nina, at the Autism Speaks benefit concert in Los Angeles, headlined by Paul Simon and Jerry Seinfeld.  Dr. Lovaas was truly pleased to see how far public awareness of autism had come.  He also had a special appreciation for Jerry Seinfeld's humor, ostensibly because so much of it is based on the nuances of human behavior.

Dr. Lovaas' pioneering work has not only helped, but has profoundly changed the lives and futures of thousands of affected children and their families.  Dr. Lovaas' groundbreaking work continues to have a profound impact on the professional development of today's autism professionals.  Perhaps most importantly, where once there was near total darkness, Dr. Lovaas brought light and genuine hope.

The autism community clearly has lost a giant.
The Best Kept Secret:
School Districts are Obligated Under Federal Law to Offer Parent Counseling and Training
Reprinted from the
Summer 2010 edition of
Autism Spectrum News

By: Tracey Spencer Walsh


When you have a child with autism, there are so many things to "stress about," but parents should not have to do it all alone.  School districts are obligated under federal law to offer, as a related services on the Individualized Education Plan (IEP), parent training and counseling.  It is the best kept secret.

It is perhaps the most overlooked legal right parents with an ASD child has.  Many school districts around the country ignore this provision, and some, like the New York City Department of Education, claim it is embedded in its District 75 (Special Education) program and therefore routinely fails to put parent training and counseling on the children's IEPs.

Imagine that you are at your child, Josh's, IEP meeting, either for the first time or the "umpteenth" time.  Your child's teacher paints a picture that, no matter what she tries, she can't get Josh's behaviors under control - she's "at a loss."  You think to yourself, "Me too!"  The Committee on Special Education (CSE) chairperson sighs, and says, "That's very typical of autism" and moves on to discuss the class size your child should be in next year.  Wait.  Stop.  Typical of autism?  Hmm...  you were told by Josh's pediatrician that autism is a spectrum disorder and that Josh will present with unique needs and, while there are commonalities among ASD children, there is nothing typical about autism; behaviors vary from child to child and there can be a multitude of reasons for the behaviors.  But you are not sure and you are in a room filled with educators - don't they know best?  You think so, but that is not how you feel.  You are not even sure what questions you should ask, but you try and blurt out, "Are Josh's behaviors normal?"  The teacher is about to answer, but the CSE chairperson cuts her off and answers you with a curt, "Yes, it's normal for children with autism," and continues with the conversation about class size.  You are just not sure.  During the meeting, the team decides on the related services Josh will get: speech and language therapy and occupational therapy.  It occurs to you more strongly than ever that you really need help with managing these "normal behaviors" and you ask, "Is there any help I can get to help Josh with his behaviors?"  The CSE chair gives you a sympathetic smile and tells you that she is sure there are parent groups you can join, but offers you nothing beyond that.  You think to yourself, "I need help supporting Josh's needs at home - I don't know how they teach him skills at school."

Know Your Federal Rights

Your instinct is right.  Congress has recognized that parents do need help in the form of parent counseling and training.  The federal regulations define parent counseling and training as: (i)... assisting parents in understanding the special needs of their child; (ii) providing parents with information about child development; and (iii) helping parents to acquire the necessary skills that will allow them to support the implementation of their child's IEP or Individualized Family Service Plan (IFSP) (34 C.F.R. 300.34(c)(8)).  Parent counseling and training is mandated as a related service to be offered as part of your child's IEP.

The Official Comments to the Federal Regulations under the Individuals with Disabilities Education Act (IDEA) help us to understand what is meant by parent counseling and training (Under the Related Services heading in the Official Comments published March 12, 1999 in the Federal Register (Vol 64, No 48, at page 12423, et seq.), Parent Counseling and Training is included and defined).

The federal law makes it clear that parents are entitled to counseling and training in how they can help implement their child's IEP goals and objectives.  Parents can and should ask that parent counseling and training be listed as a related service in their child's IEP.  The frequency and duration of the parent counseling and training depend on what your child's needs are.  A student with autism with many severe behaviors should have intensive parent counseling - a half hour once a month is not enough.  Parents should present and expert report at the IEP meeting or have an expert participate at the meeting who can recommend the level of parent counseling and training that is appropriate for the disability you are supporting at home.

Parent training and counseling, as obligated under federal law, should not be the best kept secret and, hopefully now, the cat is out of the bag.
Introducing Roselyn Disla

By: Doris Fernandez

We are pleased to welcome Roselyn Disla, our newest paralegal.  Roselyn graduated from St. John's University in 2007 with a Bachelor's Degree in Psychology.  She then became paralegal-certified from New York University in 2009.  Roselyn has been working with us since June, and is now a full fledged member of the litigation support team.


Many thanks to our 2010 Summer Interns

Interns Summer 2010

(L to R) Vivian Wang, Kelly Taylor, MaryKate McCarthy, Dan Jimenez



Enjoy the rest of the Summer!
Best wishes for a great 2010-2011 school year!
Mayerson & Associates
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Phone (212) 265-7200 - Fax (212) 265-1735 - Email: admin@mayerslaw.com

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