The Mayerson Report – Summer Issue 2016

T.K. v. NYCODE – The Perfect Case

My favorite cases are the ones  that capture the imagination of the public so as to galvanize systemic change. 

This year, the landmark result and court precedent that Mayerson & Associates achieved in  T.K., et al. v. NYCDOE continues to resonate with respect to the pervasive problem of “bullying,” a scourge that victimizes students with disabilities three to four times more frequently than typically developing students. The Second Circuit’s decision in the  T.K . case is incredibly important for a number of reasons.

First, it establishes that children with disabilities have the right to attend school free from physical or psychological abuse. This right speaks not only to basic school safety and respect, but to a student’s threshold opportunity to access and benefit from attending school. Second, the court’s decision makes clear that when parents make efforts to share their concerns about bullying with school administrators, the school district has a duty and is accountable to meaningfully address those concerns. Accordingly, a school district may not “stonewall” parents. Finally, where there is evidence of bullying, the decision illuminates some of the steps that school districts may be required to take. For example, the situation may warrant an anti-bullying plan in the student’s IEP. Or, where other measures have failed, it may be necessary to remove the perpetrator from the school environment altogether. 

The outcome in the  T.K . case continues to receive a great deal of media attention, as well as the attention of the nation’s school districts. To date, more than 40 states have now enacted some form of anti-bullying legislation, and it is inevitable that most of the remaining states will follow suit. In the meantime, Mayerson & Associates will continue to zealously advocate in the court system in all matters affecting school safety, educational access, and parental rights.


Gary Mayerson’s “Bullying” Interview on “It’s Your Health” Radio Program

By Jacqueline DeVore

Mayerson & Associates continues to be at the forefront of bullying issues after our landmark win before the Second Circuit Court of Appeals in T.K. v. NYCDOE  (Second Circuit Decision).  Click here Talk Star Network to hear Gary’s recent radio interview on “It’s Your Health,” a program that reaches a variety of NPR outlets.  In this interview by Lisa Davis, Gary explains why there is more bullying of students with less visible neurological disabilities, the “warning signs” of bullying that every parent should look for, the important role and reaction of “bystanders” and school administrators, the anti-bullying legislation that New York and other states have enacted, and the steps parents should take if they are concerned that their child is being victimized.


The New State Regulations Effective June 29, 2016

By Maria C. McGinley

On June 14, 2016, the Board of Regents approved significant amendments to the Commissioner’s Regulations relating to recommendations for one-to-one aides for preschool and school age students and other related recommendations.  By all appearances, the new amendments are fiscally motivated.

For example, the new amendments mandate that before the CPSE or CSE can recommend a one-to-one aide for a student, the CPSE or CSE must now first consider nine specific factors including the management needs of the student, the specific supports  that the aide would provide, the skills that the student would need to achieve to eliminate the need for the aide, other supports that might obviate the need for the aide, the extent to which the aide would promote inclusion with non-disabled students, and any anticipated harmful effects that might result from assigning the student a one-to-one aide.  The nine factors to be considered are tantamount to hurdles that will now need to be addressed going forward in assessments and evaluations.  In other words, it will no longer be sufficient for evaluators to state generically in a report that the student needs one-to-one support in the classroom. 

Another significant change is that even in situations where a student’s IEP expressly calls for a one-to-one aide, the student’s school will now have the discretion to share that aide with other students.  For those students with autism who need full-time one-to-one support in the classroom, the new “discretion to share” amendment is an unhelpful and inadequate dilution that we expect to challenge in the upcoming school year.

The effective date of the new amendments is generally June 29, 2016. Most IEP’s for 2016-2017 have already been developed and finalized. If you have any questions concerning the impact or applicability of the new regulations in your personal situation, please call the office at your earliest convenience so that we can plan accordingly. 


My Child’s Hearing Was Won or Settled-Now What?

By Janna Wince 

A winning decision or a settlement normally is only the first step to be taken before you will begin to recover your funding.  As the firm’s Reimbursement Specialist, my primary function is to prepare, file and follow-up on the documentary submissions that the NYCDOE requires as a condition to reimbursement. Unlike some law practices that expressly exclude the collection process from the scope of what they do, Mayerson & Associates’ standard engagement letter makes clear that we assume full responsibility for providing this essential service. 

The payment process in New York City often can be plagued with numerous arbitrary hurdles.  In an effort to expedite the review and approval process, I personally review and assemble the invoices, contracts, proofs of payment, and other documents that the NYCDOE needs in order to approve and release payment.  In this connection, our office has cultivated relationships with the NYCDOE’s “Implementation Unit” and its “Bureau of Non-Public Schools Payables” so as to be able to timely identify and resolve any issues that could delay payment.  

Possible snags include authorization errors in the NYCDOE’s payment system, document discrepancies, delays resulting from NYCDOE staff departures, and making sure that provider invoices accurately reflect the proper service dates and rates. Whatever issues may arise, I am here to resolve them so that Mayerson & Associates families can receive their funding as soon as possible.


May A Parent Covertly Plant A Recording Device In Their Child’s Backpack?

By Jean Marie Brescia 

From time to time, parents may develop concerns about what is happening behind closed doors in their children’s classrooms and/or during related services sessions.  Over the years, parents have asked whether they are permitted to “plant” an audio or other recording device in their child’s backpack or clothing so as to secretly record their child’s teacher, classroom personnel, or related services providers. 

A recent decision of the New York State Court of Appeals, People v. Badalamente, addresses this issue, but, in actuality, the court’s decision raises more questions than it answers.  In Badalamente, the Court of Appeals held that parents may secretly record their child’s conversations when the parents have an “objectively reasonable basis” for believing that recording such conversations is “necessary to serve the best interests of the child.”  

While it actually is a felony in New York State to record a conversation without the consent of at least one of the participants to the conversation, the Court found that a parent may consent on behalf of their child where the parents are acting in the interests of the child to protect that child from physical, sexual, emotional, and verbal abuse.  The Court was careful to focus on the reasons for the parent’s actions in recording the conversation and pointed out that the parent must be acting “in good faith” and that the parent’s actions must be reasonable and necessary to protect the child. 

The Court makes clear that any decisions about recording your child’s communications and interactions with other individuals without their knowledge must be made on a case-by-case basis.  No parent should read Badalamente as giving some kind of unequivocal license to covertly send a recording device into school.  

Mayerson & Associates reads the Badalamentedecision as a cautionary tale that requires attorney review and an individualized analysis of the particular facts and circumstances.


Welcome to our 2016 Summer Interns!

By Gary Mayerson 

As part of its mission, Mayerson & Associates is committed to teaching and training future attorneys and civil rights advocates.  Our internship program  provides an excellent hands-on learning experience for law students and college students.  This summer, we are proud to welcome back Daniel (“Danny”) Oquendo (New York Law School 2017), who interned for us last summer and who just celebrated the birth of a second child, Maximus. Click on the following link to read more about Danny’s unique journey   Also joining us this summer are Joel Kuzniecky (Fordham Law 2017) and our college interns, Dana Horowitz (Tufts 2018) and Matt Mayerson (Dean College 2017). 

All of us at Mayerson & Associates wish you a happy and joyful summer.  We are here to continue to support our families and to protect the rights of each individual.