Summer Issue 2014   
The Mayerson Report 

  

In This Issue
Federal District Court Invalidates DOE's "Bait and Switch" Tactics in Choosing School Sites
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This is the time of year, of course, when most families have completed the IEP process and are making difficult decisions. For this reason, at least for 12-month students, this also is the season for "10 day notice" letters and the filing of hearing requests. Rest assured, the 2014-2015 school year is nearly here.

 

The spring of 2014 turned out to be one of the most active and exciting periods in the firm's history. We rolled out an entirely new and informative website and expanded the firm's civil rights presence.  Among other highlights: 

  • On April 2, 2014, World Autism Awareness Day, Gary Mayerson spoke at the United Nations as to how nations can facilitate, promote and support inclusion.  Click this link to see video: Gary Mayerson Speaks at United Nations on WAAD 

     

  • On April 2, 2014, in one of our cases, T.M. v. Cornwall Central School District, the Second Circuit Court of Appeals held that Congress' mandate of "least restrictive environment" also applies during the summer months and that the defendant school district had deprived a student with autism of a FAPE by failing to adequately consider the student's LRE continuum 

  • In April, 2014, Gary Mayerson spoke on the steps of City Hall with Councilman Robert Cornegy in support of the Audible Alarms Bill, also known as "Avonte's Law" 

  • In April, 2014, Tracey Walsh was a featured presenter at the annual national conference of the Council of Parent Advocates and Attorneys (COPAA) 

  • On April 23, 2014, Maria McGinley presented "Transitioning Children From Early Intervention to Special Education Services" at the Young Child Expo and Conference 

  • On April 29, 2014 Maria McGinley presented at the YAI International Conference on "Universal Strategies in the Early Childhood Environment for Successful Learning" 

  • In May, 2014, the firm filed a federal discrimination action against the Washington Market School, alleging that on the basis of a student's autism diagnosis, it had wrongfully excluded and rejected a student that it had previously accepted into its program.  Click this link to read more: ADA Discrimination Lawsuit Filed Against Washington Market Preschool

  • In May, 2014, the firm filed an action against the Westchester Medical Center and one of its nurses, arising out of an incident where a young boy with autism was allegedly slapped across the face as he was emerging from general anesthesia.  Click this link to read more:  Lawsuit Against Westchester Medical Center 

  • In June, 2014, Gary Mayerson testified before the City Council in support of Avonte's Law 

  • In June, 2014, in our case, V.S. v. NYCDOE, the federal district court rendered a landmark decision supporting parental rights in the process of considering the school district's proposed school placement, holding that a school district may not give parents notice of one school, and then defend another entirely different school at trial for which notice was not given (see article below): Federal District Court Invalidates DOE's "Bait And Switch" Tactics In Choosing School Site

Federal District Court Invalidates DOE's "Bait And Switch"  Tactics In Choosing School Site             

           

In one of our cases, V.S. v. NYCDOE, 13 cv 3476 (E.D.N.Y. June 9, 2014), the federal district court (Hon. Jack Weinstein) has now ruled that "permitting the local education agency to give advance notice of one school but to defend another does not comport with the hearing required under the IDEA" and amounts to a "denial of due process."

 

In the summer of 2011, the DOE had offered V.S. placement at the Marathon School located in Little Neck, Queens. V.S.'s mother visited the Marathon School and found it to be inappropriate for V.S.  Among other problems, whereas V.S. was prepubescent and had just turned 11, most all of the other students at the Marathon School were 14 or older and "some of them had mustaches." Although V.S.'s mother rejected the Marathon School on notice to the DOE, explaining the disparate age problem, the DOE never gave V.S.'s mother notice of any alternative site.

 

As Judge Weinstein explained, "parents have a procedural right to evaluate the school assignment i.e., the right to acquire relevant and timely information as to the proposed school." Judge Weinstein reconciled that parental right against the DOE's right to select a school that conforms to and is "capable" of implementing the program offered in the IEP.

 

At the trial, held six months after the beginning of the 2011-2012 school year, the DOE advised V.S.'s mother for the very first time that V.S. would have attended Q822, an entirely different site for which notice had never before been given, and which was located miles away in St. Albans. In this connection, Judge Weinstein ruled that "D.S. (V.S.'s mother) was denied her right to evaluate the child's school site when the DOE directed her to inspect a school her child would not attend."

 

As Judge Weinstein went on to reason, the SRO and IHO Mora had also erred by failing to exclude "retrospective" evidence that the DOE had offered to defend its "substitute" school in St. Albans i.e., the school site for which no prior notice was given to V.S.'s mother: "Retrospective testimony is forbidden because [p]arents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision." Thus, "parents must rely on the FNR and other notices to determine if a proposed location is appropriate for their child's IEP."

 

Judge Weinstein ruled that the SRO and IHO Mora also erred "by failing to consider the parent's right to meaningfully participate in the school selection process, as opposed to the parent's right to determine the actual school selection."

 

Accordingly, Judge Weinstein reversed the IHO and the SRO to award V.S. and his mother tuition funding at the Rebecca School.  In addition, the court granted our motion for leave to submit an application for legal fees.

We are looking forward to further great things in 2014-2015 and we are extending best wishes for the upcoming school year.  Have a great summer!

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