Summer 2015  
The Mayerson Report 

  

In This Issue
2014-2015 School Year Highlights
Helpful Tips For Parents
Sexual Abuse Case To Go To Trial
Autism And The Anxiety Of Airline Travel
Contact Us

Founder
Gary S. Mayerson
 

Senior Counsel

 Jean Marie Brescia 

 

Attorneys

Jacqueline DeVore 


Office Manager
Doris Fernandez

 

Chief Paralegal

Mauricio Bertone, Jr.

 

Paralegals

Noelle Forbes

Sean LeVan

Randy Richardson

  
Financial Administrator
Valerie Harris
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Gary Honored at M CC 2015 Gala

 

 

2014-2015 School Year Highlights
 

With the active involvement of our client families, the 2014-2015 school year is shaping up to be our best year ever. From a purely financial perspective, the cases that we won or were able to settle for our families this year have so far netted reimbursement and related funding relief amounting to more than $14 million dollars. 
 

While we are pleased to report such figures, we are equally proud of our ongoing efforts at the federal level to set legal precedent and effectuate systemic changes. During the 2014-2015 school year, we: 

 

  • commenced a federal class action lawsuit to vindicate the "transition" and vocational training entitlements for tens of thousands of students

     

  • secured a landmark "bullying" decision from the federal district court--a decision that the U.S. Department of Justice is now actively supporting Click here for Amicus Brief    

     

  • successfully settled and resolved an ADA discrimination lawsuit that our firm brought against a well known private Manhattan preschool  Click here for ABC interview

  • won a significant "compensatory education" award in the Eleventh Circuit

     

  • successfully settled a federal action brought to enforce a student's "inclusion" entitlements 

  • won the right to proceed to trial in the Connecticut federal district court on behalf of a student with a disability who alleges that he was sexually abused by his classroom aide 

 

We could not do what we do without the committed effort and dedication of each and every member of the Mayerson team. This Summer, we warmly welcome our newest law interns, Lauren Kobrick (Cardozo Law School) and Daniel Oquendo (New York Law School).  We also congratulate our Chief Paralegal, Mauricio Bertone, who just celebrated his ten year anniversary with the firm.

 

I want to wish every family a smooth end of the current school year and a happy, fun-filled Summer. We are looking forward to an even more successful 2015-2016 school year!

Gary Mayerson

 

 

Helpful Tips For Parents

 

by Doris Fernandez

 

With the current school year quickly coming to a close, our existing client families are working with us to help prepare for the upcoming 2015-2016 school year. This also is a time when many parents of recently diagnosed children will call with questions and concerns regarding the daunting process of securing an appropriate and effective program of services. 

 

As the firm's Office Manager, I usually am the very first person a parent will speak with.  I help families identify and frame the threshold issues that will require further exploration with one of our attorneys. I also help parents to "inventory" and assemble the facts and important documents we will need to act on their behalf.

    

The first question I ask is whether there is an existing IEP. If there is no recent IEP, one of our attorneys will advise as to the next steps to take.  I always ask parents whether there are any private evaluations, as they can be very helpful. If parents need to find a private evaluator, we can recommend quality evaluation sites to choose from.  

    

Finally, I will seek to ascertain what kind of relief the parent may be considering. For example, is the objective a private placement?  Or, perhaps the goal is to remain in public school with the support of special services. The parent resource list at www.mayerslaw.com lists many of the program options that parents can choose from.  

 

Some helpful tips:

  • be sure to share all assessments and progress reports with our office and with the IEP team
  • please keep our office informed of all communications with the school district (whether written or oral)
  • be sure to let us know if you have any questions and/or concerns
  • please consult with our office before you make any changes to your child's program or school placement

Sexual Abuse Case to Go to Trial 

 

by Maria McGinley

 

Our firm represents "John Doe," a Darien, Connecticut student with a disability who alleges that he was sexually abused by his 1:1 aide.  The case,
Doe v. Darien Board of Educ. et al., asserts civil rights claims against the aide, the Darien Board of Education and certain of its employees.

 

In December, 2014, certain defendants moved to dismiss the case, claiming that there was "no reasonable evidence" to support plaintiffs' claims and that "no reasonable jury could find in favor of the plaintiffs."

 

The federal district court disagreed, holding that there are multiple claims that will be tried before a full jury even though, as the Court has acknowledged, the student is not likely to testify.
 

 

  

 

 

Autism And The Anxiety of Airline Travel

 

by Gary Mayerson

 

Of all the many anxieties parents of children with autism may experience, few would trump the fear associated with airline travel. There are so many junctures and transitions that demand prompt compliance, obedience and conformity-all of them perfect opportunities for something to go terribly wrong.  

 

The first phase, of course, is getting through the security screening.  Waiting and more waiting in a serpentine line with throngs of other people to bump into, taking off clothing as instructed, putting all of one's possessions through the scanner and then getting everything back and reorganizing is the price we all must pay just to get to the gate.  We then still must wait in another line for boarding, stow our bags in the overhead compartments and take our seats. And that is assuming there are no additional delays, plane equipment problems to be fixed, gate changes or outright cancellations.

 

The rumble, roar and vestibular imbalance felt during the take off and ascent can sometimes be overwhelming, particularly for childrenwho may experience sensory challenges or who have never flown before.  Once aloft, we pray that our child will not need to visit the bathroom while the cart is blocking the aisle, that the cart will not run out of the snacks our child will eat and that our child will not need something that we forgot to bring.  Perhaps above all, we pray that we can get from point A to point B without a meltdown or other behaviors that will draw the attention and ire of our fellow passengers or, even worse, the flight crew.

 

 Last month, the national media reported that a family traveling with their teenage daughter with autism was removed from a United Airlines flight Click here for story. The parents contend that the airline discriminated against their daughter by refusing their request for reasonable accommodations. The airline, for its part, is defending its pilot's removal decision as a precautionary "safety" measure that the pilot had the discretion to make.  Under such circumstances, assuming that the pilot overreacted, is there legal recourse against the airline?

 

The Americans with Disabilities Act (ADA) provides anti-discrimination protection by requiring public venues (think schools, buses, trains, restaurants, football stadiums, etc.) to offer "reasonable accommodations" to people with disabilities.  The ADA's protection extends to airline terminals, but "aircraft" are specifically excluded, leaving the issue of passenger removal largely to the exercise of pilot discretion. In other words, the same U.S. Congress that enacted the ADA to protect individual rights decided that, on balance, the "public" safety of a plane, its passengers and crew is paramount to the needs of the individual.  Accordingly, once you step on the plane, the rules change big time.

 

Each airline's "Contract of Carriage" gives its flight crew sweeping, if not virtually limitless discretion to determine what kinds of behaviors will mark a passenger for removal.  The International Air Transport Association defines "unruly" passengers as those who fail to follow crew instructions and onboard rules of conduct. Examples in the IATA's guide of "unruly" conduct focus on compliance with safety procedures and crew instructions, but also include passengers who appear to be "agitated" or "numb" or who are "communicating displeasure through voice tone..."  This, of course, presents a highly subjective standard that can easily be unfairly misapplied to the autism population and those with related disorders.

 

On this point, statistically, there actually is some good news.  The U.S. Department of Transportation's Bureau of Transportation Statistics reports that, annually, more than 848 million passengers travel on U.S. airlines and on foreign airlines serving the United States.  Of this number, the F.A.A.'s database reflects that, surprisingly, fewer than 200 "unruly passengers" are actually being removed from flights annually.   This number includes intoxicated passengers, argumentative passengers, "singing" passengers and passengers who refused a flight attendant's direction to turn off their cell phone. While, statistically, the chances that your family would actually be removed from a flight are relatively slim, this offers little solace for those families who live in fear of having to manage a challenging situation on the plane.

 

Given the magnitude of people with disabilities traveling on planes, Congress  should reexamine the ADA to determine whether it is time to include aircraft as a protected public accommodation.  The issue is a dicey one-- balancing the special needs of a disabled individual against the legitimate need to protect the plane and its other passengers (and crew) from genuine threats.  Living with autism, one understands and can easily get used to what autism may look and sound like. However, we also are living in the post-9/11 world and must recognize that the benign behaviors and sensory displays that a parent may no longer even notice may be perceived as threatening to those unfamiliar with autism.

 

At the very least, each airline's Contract of Carriage (and the IATA's guide) should be amended so as to recognize that the behaviors and sensory displays associated with autism can be non-conforming while not being "unruly" in the sense of a danger to public safety. There obviously is a big difference between "making noise" and "making threats" and the airlines need to provide sophisticated staff training on these kinds of important distinctions.

 

While a legislative fix does not appear likely in the near future, parents travelling with an affected family member can likely improve the experience of air travel by being proactive, as follows:

 

  • The Department of Homeland Security sponsors a "Trusted Traveler Program" that includes "TSA Pre-Check" status (see www.DHS.gov). Once approved for the program, your family will be entitled to faster transit and security screening with no removal of belts, shoes or light outerwear. 
  •  Introduce your child to all the airline personnel you come into contact with-making the personal connection often paves the way for a smoother flight experience.
  • Take advantage of the opportunity for "pre-boarding."  When you arrive at the gate, alert the airline personnel that you are traveling with a person with special needs and that you will need to pre-board. 
  • Most airlines' "Contract of Carriage" will provide that passengers with disabilities requiring wheelchairs, oxygen tanks, or other special equipment will need to contact the airline with that information at least a day or two before the scheduled departure.  If you anticipate needing any special accommodations in flight (e.g. warming food in the microwave, etc.), you should call the airline's help-line and communicate your request(s).  Once boarded, you should also alert a crew member as to your request.
  •  Pack special food and preferred items. Airline snacks are at best mediocre and are often distributed late into the flight.
  • Take advantage of restroom opportunities at the gate.  It may be some time before you will have access to the facilities on the plane.
  • Do not say anything to a crew member that can be misunderstood as threatening.

Always make requests in positive terms (e.g. "My special needs child needs ______to be comfortable during the flight" as opposed to "If my child does not get ___soon, all hell is going to break loose!"). 

  • Above all, it is essential to remain calm.

Airline travel today involves anxiety for all concerned, even for the passenger who is flying alone in first class.  As always, whether in the air or on the ground, awareness and advocacy is the first step to improving the travel experiences of people with autism and other disabilities. 

__________

 

What's your view?  We invite you to send your comments to pieceofmymind@mayerslaw.com.

Mayerson & Associates
330 West 38th Street, Suite 600 - New York, New York 10018
Phone (212) 265-7200 - Fax (212) 265-1735 - Email: admin@mayerslaw.com

www.mayerslaw.com