Attorneys at Law
Representing children and adolescents with autism and
other developmental disabilities
News & Media
September 29, 2009
Autism Speaks Second Annual World Focus on Autism
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Gary with Bob Wright and Dr. Young Shin Kim |
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Gary with Bob Wright and Dr. Ezra Susser |
On September 22, 2009, as world leaders convened at the United Nations, Gary attended the Second Annual World Focus on Autism, hosted by Autism
Speaks founders Bob and Suzanne Wright. Present were numerous “First Spouses” and other dignitaries.
Participants included moderator Meredith Viera (NBC Today Show Co-Host), Chair Mrs. Ban Soon-taek (wife of the UN Secretary General), Co-chair Jose Miguel T. Arroyo (First Gentleman of the Philippines), Dr. Helia Molina Milman (Chief of Public Health Policy, Chile), Dr. Any Shih (Vice President of Scientific Affairs, Autism Speaks), Dr. Young Shin Kim (Associate Professor, Yale Child Study Center), Mr. Hassan Ali Bin Ali (Chairman, Shafallah Center), Dr. Liri Berisha (President, Albanian Children’s Foundation), and Dr. Ezra Susser (Professor of Epidemiology, Mailman School of Public Health, Columbia University.
Suzanne Wright, the Co-Founder of Autism Speaks, announced a $100 million “Decade for Autism” initiative challenging all nations to fund autism research, awareness and support services within their borders. For further information, click here.
September 25, 2009
Our Proposal to Amend Section 4404 of the New York Education Law
Unlike neighboring states such as New Jersey and Connecticut, New York State currently is a “two tier” state. This means that on any appeal from the decision of an Impartial Hearing Officer, the appeal is first heard and adjudicated by Paul Kelly, presently New York State’s only “state review officer.”
In late 2007, the Wall Street Journal published a front-page investigatory report concerning Paul Kelly that seriously questioned his impartiality and whether he had a conflict of interest. During the summer of 2009, our office dedicated substantial personnel and resources to examine and analyze 187 decisions that Mr. Kelly rendered after publication of the Wall Street Journal article. The premise was that we would be looking at Mr. Kelly’s decision-making when, presumably, he would be on his very best behavior.
To see a copy of our analysis of the SRO’s 187 decisions, click here. We believe, based on the analysis, that there is clear and compelling evidence that Mr. Kelly is profoundly biased in favor of school districts and against children with disabilities. The analysis of Mr. Kelly’s 187 decisions shows that in eight out of nine reported cases that we were able to identify as involving claims for prospective (i.e., Connors) funding, the SRO denied relief to the student’s parents on “other grounds” that completely evaded the Connors issue. This was so even in those reported cases where the student had won their case for Connors funding at the IHO level, and even in those cases where the school district had conceded, on the record, that it had not offered the student a FAPE. Only in one of the nine Connors cases did the SRO actually come out and refuse to recognize the availability of Connors (prospective) relief.
The SRO’s apparent “no hitter” track record in refusing to acknowledge the availability of Connors funding may be due to the fact that he has been living with senior State Education Department attorney Kate Surgalla. Notably, Mr. Surgalla’s name appears on the front page of the reported Connors decision. In other words, Ms. Surgalla, the woman that Mr. Kelly comes home to every night, was the attorney for the state who was leading the charge against Connors funding.
The SRO’s bias in favor of school districts also is evident in connection with non-Connors, “regular” tuition reimbursement cases. Our analysis of the SRO’s recent pattern of decision-making shows 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% of those annulments were in favor of the student and his or her parents;
• Looking at tuition reimbursement cases in which the SRO “deferred” to the findings of the IHO, 76% of those deferrals were in favor of deferring to a decision below in favor of a school district, while only 24% deferred to decision below in favor of a student;
• In tuition reimbursement appeals brought by the school district, the SRO overturned the IHO’s award of tuition reimbursement 42% of the time, while, in contrast, in only 1% of tuition reimbursement appeals brought by the student and his or her parents did the SRO overturn an IHO’s denial of tuition reimbursement; and
• In 43% of tuition reimbursement appeals (involving approximately 102 cases), 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 an IHO’s award of tuition reimbursement.
We are urging the New York Legislature to amend Section 4404 of the Education Law to create a panel of impartial State Review Officers. The proposed amendment will help restore confidence in the integrity of the system of administrating “impartial” appeals. To see a copy of our proposal to the Legislature, click here.
June 22, 2009
U.S. Supreme Court reaffirms parents’ right of access to due process in Forest Grove
In a 6-3 decision, the United States Supreme Court has held that “IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.” The high court’s decision, once and for all, operates to resolve a national conflict between the circuits that first arose when certain courts held that parents do not have standing to seek due process unless they have first “tried out” the school district’s program of services. The court’s decision makes clear that parents have standing to file for an impartial hearing without having to first “try out” the district’s program.
Gary Mayerson, in his role as the Director of Autism Speaks’ Federal Legal Appeals Project, filed an amicus curiae brief together with Akin, Gump, Strauss, Hauer & Feld, LLP attorneys Robert Pees, Sunish Gulati, Christopher Egleson and Christopher Clore.
Justice Stevens wrote the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer and Alito. Justice Souter, who recently announced his retirement from the bench, filed a dissenting opinion, joined by Justices Scalia and Thomas.
The school district in Forest Grove had failed to offer the student an IEP. Despite this threshold omission, the school district advanced the argument that its failure to have offered the student an IEP was irrelevant, and that since the student had never before received special education services from the district, the student’s parents lacked “standing” to sue under IDEA. The court rejected the school district’s argument as unavailing, relying upon the “remedial purpose” of the statute, and reasoning that parents already have a heavy evidentiary burden to prove when they assume the risk of a private placement. Moreover, the court pointed our that “a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.”
The majority decision criticized the dissenting opinion for offering “unsubstantiated generalizations” about the ostensible small number of “parents whose children have been denied special education services.” The majority decision also faulted the dissenting opinion for “grossly mischaracterizing” the majority’s interpretation of the statute: “Indeed, by immunizing a school district’s refusal to find a child eligible for special education services no matter how compelling the child’s need, the school district’s interpretation of [the statute] would produce a rule bordering on the irrational.”
The court rejected as unfounded the school district’s fear that financial hardship will result to school districts if parental standing is not restricted to those situations where the student has already received and “tried out” the school district’s offerings. The court explained that even with standing to sue, parents still must meet the three-pronged test of Burlington/Carter.
To download a copy of the court’s decision in Forest Grove click here.
April 7, 2009
Amicus Curiae Brief filed with the U.S. Supreme Court in Forest Grove
On April 1, 2009, the law firms of Mayerson & Associates and Akin, Gump, Strauss, Hauer & Feld jointly filed an amicus curiae brief with the United States Supreme Court in Forest Grove v. T.A., as part of the Autism Speaks Federal Legal Appeals Project. (To download a copy of the brief, click here.)
Two years ago, the U.S. Supreme Court considered the appeal of the New York City Department of Education in Board of Education v. Tom F., 128 Sup.Ct. 1 (2007). Mayerson & Associates in collaboration with Akin, Gump, Strauss, Hauer & Feld filed an amicus curiae brief in that case as well. The core issue was whether or not a parent who wishes to challenge their child’s IEP has “standing” to do so if the student has never before received special education services from the local educational agency (i.e., the New York City Department of Education).
The U.S. Court of Appeals for the Second Circuit held that parents have standing to challenge an inappropriate IEP without first “trying out” the IEP considered to be inappropriate. The Supreme Court granted certiorari to hear the NYCDOE’s appeal, but it resulted in a 4-4 decision (after Justice Kennedy recused himself). The U.S. Supreme Court’s 4-4 decision let the Second Circuit’s decision stand. However, the decision was only applicable in the Second Circuit (i.e., New York, Connecticut and Vermont), allowing other circuits in the nation to rule differently.
By granting certiorari in Forest Grove on the very same issue, it is clear that the high court wants to provide uniformity and consistency on the “standing” issue. This time, Justice Kennedy will be casting a vote, and given the Supreme Court’s prior 4-4 result, Justice Kennedy’s vote may well be decisive.
March 31, 2009
NYCDOE Withdraws Federal Appeal in Student X “Pendency” Case
Parents will be happy to learn that on March 19, 2009, in Student X v. New York City Department of Education, the New York City Department of Education withdrew its appeal to the United States Court of Appeals for the Second Circuit. The NYCDOE did so just one day after filing its appeal brief and record on appeal.
Previously, Student X’s mother had failed to win any relief from the Office of State Review. Mayerson & Associates then won relief for Student X at the federal district court level, as part of its pro bono work on behalf of Autism Speaks Federal Legal Appeals Project (FLAP).
The United States District Court for the Eastern District of New York (Garaufis, J.) held that a student’s pendency entitlements continue where, as here, the student is prosecuting a federal appeal at the district court level. Student X, 2008 U.S. Dist. LEXIS 88163 (E.D.N.Y. Oct 30, 2008). Because the NYCDOE had failed and refused to honor and implement Student X’s pendency entitlements for ABA services hours and other interventions, the District Court awarded Student X more than a year’s worth of the services that Student X should have been provided under pendency. The District Court also held that the NYCDOE was liable to pay attorneys’ fees and other costs.
The Student X precedent clearly is an important one. We believe that the NYCDOE withdrew its appeal on March 19, 2009 because on that very same day, the Court of Appeals for the Ninth Circuit ruled in a manner that was highly supportive of Student X’s position, and contrary to the NYCDOE’s position.