By: Gary S. Mayerson

Some of you may have been following the Neli Latson case in the State of Virginia, where a young man with Asperger's Syndrome, convicted of assaulting and severely injuring a police officer during an investigatory "stop" that spiraled out of control, was facing the jury's recommendation for a 10 year jail sentence.  The story is every parent's (and police officer's) nightmare.

Just yesterday, the Stafford County Circuit Court (Judge Sharp) tempered the jury's harsh recommendation with a largely suspended sentence, followed by mandatory treatment and intervention for Neli before he ages out of his school district entitlements.

Congratulations to Neli's criminal counsel, Lisa Greenman, for this excellent and just result.  Set forth below is the "sentencing recommendation" letter I wrote to Judge Sharp on behalf of the Autism Speaks Federal Legal Appeals Project.

May 18, 2011

Re:  Reginald Latson

Dear Judge Sharp:

I am writing Your Honor in my capacity as the Director of the Autism Speaks[1] Federal Legal Appeals Project.[2]

Autism Speaks and its constituency have been following the Latson case with a great deal of concern. In the first instance, we have a great deal of concern and respect for the law enforcement officer who was seriously injured while doing his job in the line of duty. Our hearts go out to the officer and his family.

Rarely, if ever, does Autism Speaks advocate in connection with an active criminal matter.  Autism Speaks, for example, will not involve itself in any matter where there is evidence that the defendant’s “autism” is, in reality, a pretextual excuse that is “diagnosed” or “discovered” only after the arrest of the defendant. Those kind of defendants impair our cause, and serve only to confuse or offend the public.   The defendant in Latson, however, has a longstanding autism diagnosis.  Moreover, his behaviors are further impacted by his more particular diagnosis as having Asperger’s Syndrome, also sometimes known as Asperger’s Disorder.  We urge that there are special circumstances here that warrant the exercise of this Court’s sound discretion in processing and tempering the jury’s sentencing recommendation. 

We certainly do not fault the officer for investigating what he erroneously believed to be a suspicious man with a gun. In actuality, however, there was no gun, and the defendant was waiting for the library to open. Ironically, for Reginald, a young man with Asperger’s Syndrome, the quiet library he was waiting to gain entrance to was serving as a place of refuge.  We do not fault the officer for not knowing about Reginald’s autism (Asperger’s) disability, and how that core disability would be expected to impact and degrade (1) Reginald’s ability to quickly process instructions and commands, (2) Reginald’s ability to properly understand and “read” social cues and situations, and (3) Reginald’s reaction to physical contact.[3] Unfortunately, however, between the officer’s mistaken beliefs and perceptions and Reginald’s erroneous social perceptions and his hypersensitive reaction to physical contact, a formula for disaster arose—a formula that then spiraled out of control to its inevitable conclusion.  What happened here is every police officer’s worst nightmare.  For parents of children with autism, it is their worst nightmare as well.

For purposes of sentencing, we respectfully urge that Reginald’s reactions and behaviors need to be understood as a manifestation of his autism disorder.  It also must be kept in mind that Reginald’s autism was first diagnosed at age 14, and that for this reason, intervention efforts addressing his autism started relatively late.

 I know from personal experience with hundreds of families that students like Reginald can be systematically taught the communication and skills needed to safely navigate challenging situations.  Behavioral intervention delivered and supervised by trained behavior analysts is a scientifically validated approach to effectuate that change, and those kinds of services are available within the scope of Reginald’s school system.[4]   They are not, however, available in any meaningful or effective form as part of further incarceration, and on this point, it is my understanding that Reginald has already been incarcerated for more than a year.  Under the federal IDEIA statute and Virginia law, Reginald is entitled to intervention and teaching support (only) until he is 22.

If the purpose of sentencing is to punish Reginald and teach him a lesson, he already has been incarcerated for more than a year, and a longer incarceration will not likely have any greater impact to him as part of a teaching lesson. In fact, any further incarceration is likely to be counterproductive, and eliminate any chance that Reginald can be returned as a productive and functioning member of society.  As Reginald is entitled to teaching and behavioral support from his school system only until age 22, that clock is ticking.  The next few years of educational opportunity can be put to good use for Reginald.  Or, they can be frittered away.  The law provides the opportunity for judicial review of the jury’s sentencing recommendation.  The legislature has thus presumed that there may be any number of reasons for the court to reject or significantly temper the sentencing recommendation of the jury.

Accordingly, for all the foregoing reasons, Autism Speaks is urging Your Honor to craft a sentence that will acknowledge Reginald’s prior year of incarceration and direct immediate and appropriate behavioral treatment and ongoing maintenance of probation requirements to be directed by your Honor as an express condition of avoiding further incarceration time.  This certainly is a serious case, but it also is one that requires a more careful and thoughtful analysis of the sentencing phase, taking into consideration the impact of Reginald’s autism.

We thank Your Honor for giving Autism Speaks the opportunity to address the court.

Sincerely, 

Gary S. Mayerson, Director

Autism Speaks Federal Appeals Project

By: Gary Mayerson

As reported in the United States Law Week and the New York Law Journal, United States District Court Judge Jack Weinstein has ruled in one of our matters that "bullying" and the hostile environment that comes with bullying can amount to a deprivation of the right to a "free and appropriate public education" (FAPE).  In his decision reversing the SRO, Judge Weinstein carefully describes the steps that a school district must take to investigate and address parental concerns about bullying.

This apparently is the very first important "bullying" decision rendered by a federal judge sitting within the Second Circuit.  We are very proud of the result and expect the decision to be relied upon by courts in other jurisdictions.

If you would like a pdf copy of the article from the United States Law Week, or of Judge Weinstein's decision, please email Doris at admin@mayerslaw.com.  

Reproduced with permission from The United States Law Week, 79 U.S.L.W. 2446 (May 2, 2011).Copyright 2011 by The Bureau of National Affairs,Inc. (800-372-1033) http://www.bna.com

By: Gary S. Mayerson

On August 28, 2009, after a three-day trial and the submission of post-hearing briefs, Impartial Hearing Officer William J. Wall held that the New York City Department of Education ("NYCDOE") had failed to provide a student with autism a "free, appropriate public education" ("FAPE").  Upon that core finding, the hearing officer directed the NYCDOE to reimburse the student's parents for the cost of the student's attendance during the 2008-2009 school year at the McCarton School, a not-for-profit school in Manhattan that is well known for its high quality, one-to-one educational program.  Our office represented the student and his parents at the hearing, and in fact, had successfully represented the student and his family for several years.

Undeterred, the NYCDOE elected to take an appeal to the (now former) State Review Officer ("SRO"), Paul Kelly.  The bad news was that the family, despite their "win," now had to slog through the appeal stage initiated by the NYCDOE.  The good news was that the student's tuition was protected and paid for under "pendency" because of a prior final adjudication in favor of the student.  Predictably, however, SRO Kelly reversed the underlying decision in favor of the student, and held that the NYCDOE had offered an appropriate program and placement. 

SRO Kelly's reversal of the underlying tuition reimbursement award prompted the student's parents to take a further appeal to the United States District Court for the Southern District of New York.  The case was assigned to District Judge Robert W. Sweet, one of the court's most experienced and respected jurists.  Taking this further appeal automatically extended the student's pendency entitlements.

By decision dated March 11, 2011, Judge Sweet reversed SRO Kelly's decision as "clearly erroneous" and reinstated Hearing Officer Wall's award in favor of the student.  In a detailed, 40-page decision, Judge Sweet explained why he felt constrained to reverse SRO Kelly:

1. Against a compelling, virtually unrebutted evidentiary record showing that the student needed a quality, one-to-one educational program, Judge Sweet faulted SRO Kelly for arbitrarily accepting the NYCDOE's position that the student would do just fine in a 6:1:1 District 75 classroom.

2. Judge Sweet held that it was error for SRO Kelly, who had not seen or heard any of the witnesses directly, to have ignored "credibility" assessments that Hearing Officer Wall had made after personally hearing all of the witnesses firsthand.

3. Judge Sweet held that, to the extent that the student's IEP was missing provisions or language that should have been included, it was error for SRO Kelly to have accepted the NYCDOE's "after the fact" testimony at the hearing as to what it "would have done" if the student had attended the recommended NYCDOE program.  Judge Sweet thus rejected as "unwarranted" SRO Kelly's unusual approach, which had allowed the NYCDOE to "cure" any IEP defects by presenting after the fact testimony, testimony that SRO Kelly accepted in lieu of express provisions in the IEP.

4. Judge Sweet agreed with Hearing Officer Wall that the NYCDOE had failed to develop a proper "Functional Behavior Assessment" to assess and address the student's "interfering behaviors."

5. Judge Sweet accepted Hearing Officer Wall's factual finding that a 6:1:1 classroom did not provide the student with an IEP that was "reasonably calculated" to provide this particular student with a FAPE.

6. Finally, Judge Sweet held that SRO Kelly's decision and analysis was lacking, in that it was not "thorough and careful."

Judge Sweet reinstated Hearing Officer Wall's decision in favor of the student and held that "plaintiffs are granted leave to submit a fee application pursuant to the express fee-shifting provisions of the IDEA."  Accordingly, based on Judge Sweet's decision, the family may seek the recovery of attorneys' fees and related costs that are attributable to the hearing before Hearing Officer Wall, the appeal that the NYCDOE took before SRO Kelly, and the federal action presided over by Judge Sweet.  In other words, quite a bit of money.

On the very first page of his decision, Judge Sweet correctly recognized that "these issues are difficult, highly individualized and procedurally complicated."  We could not agree more with the learned judge and would simply add that protracted litigation with the school district is about the last thing that parents of children with autism need in their lives.  We are profoundly grateful that the court gave the time and effort needed to set this record straight.  If you would like a copy of the decision in R.E. v. New York City Department of Education, 10 Civ. 3176 (S.D.N.Y. Mar. 15, 2011), please contact Doris Fernandez, our office manager, at doris@mayerslaw.com.

By:  Doris Fernandez

On Sunday, March 6, 2011, at 11:15 a.m., Tracey will be making a presentation as part of the 13^th Annual COPAA Conference in San Antonio, TX on “How to Prepare for Due Process Hearings.” This presentation will be an in-depth discussion about what parents, advocates, and attorneys need to do well in advance of a due process proceeding to be successful in litigation and effective strategies during the due process hearing.

For further information, or to register, please visit the COPAA website, at http://www.copaa.org/conference-training/conference.

By: Gary S. Mayerson

For roughly 25 years, federal courts have repeatedly recognized the right of parents to seek “reimbursement” relief under the federal Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400, et seq., at least where there was compelling evidence that the student’s school district had failed to offer a FAPE (“free, appropriate public education”).  These kinds of cases are popularly known as “Carter” cases following a seminal U.S. Supreme Court decision, Florence County School District v. Carter, 510 U.S. 7 (1993).

While Carter cases work well enough for those families who could afford to “front” the school tuition or other expenses, they are not very useful for those families who cannot afford to bring a case on a reimbursement basis.  On the basis of “dicta” (indirect, non-controlling language) appearing in Connors v. Mills, 34 F. Supp. 795 (N.D.N.Y. 1998), a case popularly referred to as the “Connors” decision, hearing officers in New York City have for years been ordering direct tuition funding for those parents who had “winning” cases but whose tax returns showed that they could not afford to bring the case fully as a Carter reimbursement case.

There was only one, yet monumental problem.  The attorney who had represented the State of New York in the Connors case (opposing the notion of direct funding for parents who could not afford to bring a reimbursement case) was Kate Surgalla, Esq.  In 2007, our office learned that Paul Kelly, New York’s then State Review Officer (the person who hears and decides appeals taken from decisions issued by Impartial Hearing Officers), was living with Ms. Surgalla in the house that Ms. Surgalla owned. 

Two summers ago, our office began to catalogue SRO Kelly’s decision-making in Carter (reimbursement) and Connors (direct funding) cases.  What we found was startling.  We discovered that in Connors (direct funding) appeals, SRO Kelly never once sustained the position of the parents, and had, time and again, always sustained the position of the school district (to deny Connors funding).  What an amazing coincidence that Paul Kelly ruled 100% against Connors funding, thus agreeing 100% with the litigated position of the State Education Department senior lawyer he was living with! 

We disseminated our data concerning the decision-making of SRO Kelly.  We alerted the special education community.  We alerted NYC Public Advocate Bill Di Blasio, who was very responsive.  We alerted the New York Legislature.  We were interviewed by Channel 7 Eyewitness News.  Even the Wall Street Journal weighed in with an expose.  We challenged Mr. Kelly’s conflict of interest in multiple court filings.  We urged then incoming Commissioner of Education Dr. David Steiner to take action.  Our message was clear—SRO Kelly had an insurmountable conflict of interest (particularly as to Connors cases) and needed to be engaged in a different line of work.

In the Fall of 2010, SRO Kelly quietly resigned his position.  SRO Kelly did so while preserving his perfect “no hitter” record in Connors cases.  Given SRO Kelly’s anti-Connors decision-making, the special education bar necessarily had to look to the federal court system to resolve this important issue.

On February 1, 2011, United States District Court Judge Paul G. Gardephe rendered his decision in D.A. v. New York City Dept. of Educ., 09 Civ. 5097 (S.D.N.Y. Feb 1, 2011), holding that families with winning cases can seek and obtain “direct” tuition funding where the evidence shows that the family cannot afford to bring the case to court fully as a reimbursement case.  In holding as he did, Judge Gardephe reversed an earlier decision of SRO Kelly, which held that there was no legal right to obtain Connors (direct) funding under the IDEA statute.  As Judge Gardephe wisely reasoned:

 “A contrary ruling would be entirely inconsistent with IDEA’s statutory purpose, including the goal of ensuring a FAPE to the least privileged of the disabled children in our nation.  Such a ruling would also be irreconcilable with decades of case law … holding that the exercise of rights under IDEA cannot be made to depend on the financial means of a disabled child’s parents.  Limiting the right of unilateral withdrawal … only to those with the financial means to pay the cost of private school tuition … is entirely antithetical to IDEA’s universal guarantee of a ‘free appropriate public education’ to all children with disabilities, regardless of means.”

Judge Gardephe’s decision, while clearly a relief for parents and disability advocacy groups, may not be the last word.  The same NYCDOE that argued to Judge Gardephe that only well-heeled parents are entitled to seek reimbursement claims under IDEA may well elect to present the same argument to the Second Circuit Court of Appeals.  Any such further appeal, however, would be most unfortunate.  It would send an atrocious message and worst of all, it would be wrong. 

I previously wrote on this site in support of Chancellor Black’s appointment.  I wrote that we should all give Chancellor Black a fighting chance to display good judgment and excellence, and that we should have high expectations. Let us hope that Chancellor Black carefully reads Judge Gardephe’s decision, and that she has the moral courage and fortitude to do what is right for all the children—not just those children whose parents can afford to “front” the cost of securing appropriate special education programming. 

While we all wait to see if the NYCDOE will elect to take a further appeal, I am girding myself for the inevitable newspaper articles decrying the financial cost to the taxpayer when tax dollars are used to pay for special education tuitions.  Somehow, those articles always seem to forget to note that no parent can ever win a reimbursement or direct payment case for private school tuition unless the evidence first establishes that the school district has failed to offer the student a FAPE.  When New York City begins to address that core failure in a meaningful way, then and only then will there be a marked decline in the number of impartial hearings that must be litigated year after year.

By: Tracey Spencer Walsh

It is simply not enough to present an IEP team with an evaluation.  The professionals evaluating your child should recommend the types and levels of services your child requires.  Vague, “speech therapy is recommended” is not helpful.  Rather a specific recommendation that your child requires 5 hours a week of speech therapy services is much more helpful and gives you the specific information the team needs to make the appropriate recommendations.  See Tracey's article on page 23 in Autism Spectrum News Winter 2011 issue by clicking here.

By: Gary S. Mayerson

Parents must confront a minefield of issues and challenges in their efforts to secure effective and appropriate educational programs. Avatars of Autism, powered by xtranormal's character avatars and text-to-speech technology, will highlight some of these challenges.  To see Segment #1 (NYC IEP Meeting), click here or go to the following address, http://www.youtube.com/watch?v=aP-PwGeZlZc.

Future segments will address bullying, least restrictive environment, requesting independent evaluations, and other specific topics.  Special thanks to our intern Daniel Jimenez for production and writing assistance.

By: Doris Fernandez
 

By: Tracey Spencer Walsh

Where there is evidence of a “gross” failure to provide services that should have been provided, parents may be able to seek a “compensatory education” (“comp ed”) award in addition to other available avenues of relief.

In a recent case, Streck v. Board of Education of The East Greenbush Central School District, the Second Circuit Court of Appeals ordered the school district to establish an escrow account to ensure payment of a compensatory education award.  The court held that “the prevailing party’s ability to utilize that award cannot turn on its ability to finance the costs of the education awarded” and further ordered that “the value of the prospective compensatory education must be set aside by the school district and placed in escrow for use in paying up-front for the compensatory education expenses.”

The court’s decision provides that the escrow funds will only be available for three years and the parents are entitled to recover from the escrow account only the amount that they actually spend on the comp ed services for their son (i.e. they must produce receipts or bills to the escrow account manager who will then pay the bills).  The court order also directs that any money left in the escrow account after three years will be returned to the school district.  It is worth noting that here also was a reimbursement award and the court directed the payment of “interest” to the parents (normally, there is no “interest” component).

Requiring that the district escrow the comp ed award “in advance” helps ensure that the student’s services will be financed even if a school district were to go bankrupt or have any other fiscal problems or budgetary delays.  A compensatory education award can be a valuable award.  When preparing to bring a due process proceeding against your school district, you should give thought to whether or not you may have a viable compensatory education claim.  For example, did the school district recommend on your child’s IEP that she receive 5 hours of speech therapy, but actually only delivered 2 hours a week during the school year? Or, perhaps your child was mandated for occupational therapy, but there was a four month lapse in the provision of these services. You may be entitled to bring a comp ed claim for those “missed” hours. There normally is a two year statute of limitations, so you should act promptly to assess and assert any claims you might have.  As always, if you are in doubt, consult with counsel.

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