Winter Issue 2014   
The Mayerson Report 

  

In This Issue
Getting Ready for 2014-2015
Senator Latimer Introduces Remedial Legislation To Break The SRO Appeal Logjam
Anthony Starego Makes History and Helps his Varsity High School Football Team Win the State Championship
Federal District Court Dismisses as "Untimely" Appeal Taken by the NYCDOE
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Gary S. Mayerson

Partner

Tracey Spencer Walsh

Senior Counsel

 Jean Marie Brescia

 

Associates

Jacqueline DeVore


Office Manager
Doris Fernandez
 

 Chief Paralegal

Mauricio Bertone, Jr. 

 

 Paralegals

Roselyn Disla 

 

 Paralegal Assistants

Sean LeVan

Randy Richardson

  
Financial Administrator
Valerie Harris 
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Getting Ready for 2014-2015

 

            With all of the ice, gaping potholes and "polar vortex" temperatures, it is difficult to believe that spring is actually just around the corner! Many of our families are already attending their 2014-2015 IEP meetings or are receiving the notices that schedule those meetings or request consent for related evaluations and assessments. The Second Circuit's recent decisions show that the courts will be focusing most intently on the assessment and IEP development process and what the IEP actually says or does not say. We were responsible for some of the key court decisions on this point and we are ready to help our client families best address and manage this "new normal" with an individualized approach.

 

            In the next weeks, we will be rolling out the firm's completely revamped, interactive website.  Our new site will have a number of new and enhanced features. Parents and professionals alike will be able to turn to the site for up to date news, relevant announcements, and a variety of valuable and useful informational resources. We hope that you will enjoy our new site!  

 

 

Thank You Senator Latimer For

Introducing Remedial Legislation 

To Break The SRO Appeal Logjam

 

By: Gary S. Mayerson

 

            All too many families know firsthand that in the last two years, New York's State Review Officer (SRO) has failed to timely decide appeals taken from the Impartial Hearing Officer's decision, resulting in a current logjam of between 150 and 200 undecided (and late) appeals.  Some of these appeals have been languishing undecided for more than a year and this failure is highly significant in view of the fact that Congress and the New York Legislature both already require that the SRO decide appeals on a 30 day basis. Unfortunately, the current statutes do not say what happens when the SRO fails to decide the appeal within the 30 day deadline!  This systemic failure and legislative anomaly has been depriving families and school districts of due process, and it also has generated numerous federal lawsuits and even one class action. 

 

            Help is on the way!  State Senator George Latimer, the ranking minority member of the Education Committee, has just introduced a bill to amend the Education Law (S6567-2013) that, when enacted, will largely solve this problem.  The proposed bill is simple and direct enough.  It provides that the SRO must decide all appeals in the order in which they are received and that if the SRO fails to do so on a 30 day basis, the case is then deemed final at the IHO level, subject only to a further timely appeal, if any, taken to the federal district court.  The bill applies to protect families and school districts alike, and simply puts "teeth" into an existing procedural safeguard.

 

            We applaud Senator Latimer for proposing a practical and fair solution to what has become a huge problem for parents and school districts.  Commuters do not expect to have to sit on the George Washington Bridge for even an hour because of "lane closures."  We certainly do not expect parents and school districts to wait many months, if not longer, for the SRO to decide appeals concerning children with disabilities that are required to have been decided in 30 days.

 

            Please contact your state representative to communicate your support for this worthy legislation, with a copy to Senator Latimer:

 

                                    Senator George Latimer

                                    615 Legislative Office Building

                                    Albany, NY  12247

                                    (518) 455-2031

                                    (518) 426-6860 (fax)

                                    (latimer@nysenate.gov)

 

Our Client Anthony Starego Makes History and Helps

His Varsity High School Football Team Win 

the State Championship

 

By: Jacqueline DeVore

 

NFL great Kurt Warner & Anthony Starego Anthony Starego. Gary and Holly Robinson Peete

 

            In the middle of the 2012 football season, Brick Township High School senior Anthony Starego, then 18, was competitively selected to be a starting placekicker on Brick's varsity football team the Green Dragons.  That achievement alone was fairly unprecedented, given that Anthony is diagnosed with autism and other related challenges. Anthony came alive as a player during the 2012 season, with a corresponding increase in his confidence and self esteem.  ESPN covered Anthony's inspiring story with its film "Kick of Hope." But then, just a few games later, the 2012 football season was over.

 

            Brick finished its lackluster 2012 season with more losses than wins. Anthony, on the other hand, was going to be staying on at Brick as an IEP student until he turned 21. Accordingly, Anthony's coaches made application to the New Jersey State Interscholastic Athletic Association (NJSIAA) for a waiver to allow Anthony one further season of competitive play.  Anthony needed the waiver from the NJSIAA because he was going to be 19 at the start of the 2013 football season.  The NJSIAA denied Anthony's request, citing several reasons for its denial.  Autism Speaks, after being contacted by Anthony's father, asked Gary Mayerson whether further legal action could be taken that would allow Anthony one further season of competitive play.

 

            In the Spring of 2013, we filed an ADA action in the Trenton, NJ federal district court.  We also filed a related appeal in the New Jersey Superior Court.  After a trial, the federal district court rejected as invalid each and every one of the reasons that the NJSIAA had given for denying the waiver request. The district court's analysis helped to spark further settlement discussions and ultimately, the NJSIAA and New Jersey's Commissioner of Education agreed that Anthony would be granted a waiver to allow him to play out the 2013 season.

 

            Anthony and his parents were elated at the news, but Anthony still had to compete to win his former position back.  It took Anthony weeks to do so, but as of mid-season, Anthony was back in excellent kicking form, consistently succeeding with his field goal attempts. 

 

            Incredibly, the same lackluster team that had not had a winning season for years made it into the playoffs. In fact, Brick emerged from the playoffs with enough wins to play Colts Neck for the State Championship.  In a classic, storybook ending, Anthony contributed points from two successful field goal attempts to help his Brick teammates win the State Championship game 26-15.  In so doing, Anthony made history and helped pave the way for more Anthonys to come.

 

            On Saturday, February 1, 2014, at an Autism Speaks fundraiser hosted by Holly Robinson Peete at Joe's Crab Shack in Harlem, Anthony received an award from NFL great Kurt Warner.  Minutes later, out of the hundreds of people in attendance, Gary won the raffle for two prime tickets to the Super Bowl and promptly gave them to Anthony and his father. (http://www.youtube.com/watch?v=5QgAydWgs2s&app=desktop).

 

The Federal District Court in Manhattan Has Dismissed as "Untimely" an Appeal Taken by the New York City Department of Education (NYCDOE)

 

By: Maria McGinley

  

            When parents prevail following a hearing conducted before an Impartial Hearing Officer (IHO), the NYCDOE has 35 days from the date of the IHO's decision to serve its appeal papers.  Those papers normally must be timely served directly upon the student's parents.

 

            In S.H. et al. v. NYCDOE, a case in which we represented the student and his parents, the IHO held for the student and his parents and the NYCDOE decided to appeal.  There was only one problem.  The NYCDOE apparently did not even attempt to serve its appeal papers until the afternoon of the very last day to so and when that attempt was made, the student and his parents were not home.  Accordingly, the NYCDOE's appeal papers were not timely served. 

 

            The State Review Officer then dismissed the NYCDOE's appeal as untimely and rejected the NYCDOE's plea for an extension.  Undaunted, the NYCDOE filed a further appeal with the federal district court in Manhattan and then upped the ante, claiming that the reason why service was not timely made was because the student's parents did not actually reside at the Manhattan address given for service!  In other words, the NYCDOE claimed that the student's parents were lying about living in their Manhattan residence. 

 

            Our office moved to dismiss the NYCDOE's federal appeal on the basis that the further appeal attempt also was untimely and that therefore, the Court did not have subject matter jurisdiction.  We also submitted voluminous documentation to show that the student and his parents actually resided (and continue to reside) at the NYC address reflected on S.H.'s DOE IEP.  That documentation included bank statements, credit card statements, tax returns evidencing the payment of New York City taxes, utility bills, cable bills, and even photographs of every room in the family's NYC apartment evidencing their day-to-day living arrangements.  Unmoved by the above evidence, the DOE continued to portray S.H.'s parents as liars.

 

            By Decision dated January 22, 2014, the federal district court (Hon. Alison J. Nathan) dismissed the NYCDOE's (untimely) appeal on the grounds that the court lacked subject matter jurisdiction, stating:

 

"Common sense dictates that dropping by a person's apartment building twice on a weekday is not a foolproof method for encountering that person.  It was unreasonable for the City to believe otherwise ... the City should have expected last-minute personal service to be difficult..." (Emphasis added).

 

            As a result of the district court's dismissal ruling, the family is now entitled to the tuition funding relief awarded at the IHO level, and also is now entitled to make an application before the federal court to recover the reasonable attorney's fees recorded at the IHO, SRO and district court levels. 

 

             The S.H. case offers a window of insight into the lengths that the DOE is sometimes prepared to go to try to beat beleaguered parents.  We believe we may see more of these kinds of tactics in 2014-2015 and we are ready for whatever may come our way.

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