In S.H. et al. v. NYCDOE, a case in which we represented the student, 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. While service of the NYCDOE’s appeal papers ultimately was made, it was done so untimely as the NYCDOE failed to effectuate service within 35 days of the IHO’s decision.
The State Review Officer 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 their Manhattan residence.
Our office moved to dismiss the NYCDOE’s appeal on the basis that the City’s appeal 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 indicated on the student’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 regular day-to-day living arrangements.
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 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.
]]>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, Gary and associate Jacqueline DeVore filed an ADA action in the Trenton, NJ federal district court. The firm 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.
]]>In theory, this sounds like a perfectly sound policy. After all, what loving parents would ever intentionally choose to have to travel hundreds, if not thousands of miles to visit their child? In addition, all things being equal, it certainly makes logical sense to try to keep New York State tax dollars and funding within the state.
The problem, of course, is that all things are not equal. Despite the increased incidence of autism in the general population and the sheer number of people in New York State who require a quality residential placement, New York State has far too few appropriate residential options to meet what is a growing, if not exploding demand. Increasingly, because of the evident shortage of quality residential options within the state, New York families have had to turn to quality residential facilities in Massachusetts, Pennsylvania, Idaho and other states. And, truth be told, many of these placements occurred in the past with the express blessing and approval of NYSED, which then arranged significant reimbursement funding for the sending school district.
This school year, however, we noticed that New York school districts were becoming increasingly resistant to out of state options, even if the out of state option was previously chosen by the same school district, and even where there was no clinical reason warranting a change in placement. We believe we have uncovered the source of this unhelpful change in direction.
In April of 2011, James P. DeLorenzo, NYSED’s Statewide Coordinator for Special Education, issued an 8 page, highly intimidating memorandum warning that school districts that insist on placing students in out of state facilities “ … are [depending on certain factors] at risk of receiving either partial state reimbursement … or no state reimbursement” and that “this would result in the … sending school district accepting full responsibility for the education and maintenance costs for the student’s placement.” School districts, however, do not face any draconian financial consequences if they happen to choose an in-state residential facility. That certainly makes the “choice” easier, doesn’t it?
Parents should take note of any planned placement change that seems designed for administrative expediency rather than to meet the clinical needs of the child. As always, it is important to nip these kinds of problems in the bud with the assistance of counsel before the placement change is scheduled to take effect.
ORDER A COPY NOW for yourself – or for someone you know as a tool to discuss feelings and give comfort to affected siblings.
Available at: www.northshire.com
In what the court has characterized as a “unique” case of first impression, United States District Court Judge Vincent Briccetti has just held in one of our upstate cases that when a school district district “flatly refuses” to recognize and fulfill a disabled student’s “pendency” rights under the federal IDEA statute, the school district must then reimburse the student’s parents for the costs of the student’s pendency services during the course of any IDEA-based dispute between the school district and the student’s parents.
The dispute concerns “T.M.,” a young Cornwall boy with autism whose parents rejected the Cornwall School District’s proposed Individualized Education Plan (IEP) for the 2010-2011 school year.
When T.M.’s parents challenged Cornwall’s education plan, they invoked T.M.’s “pendency” rights to continue and maintain the services that T.M. had been receiving under Cornwall’s May 29, 2009 IEP, from service providers that Cornwall had originally approved. Cornwall, however, refused the parents’ request, claiming that T.M. “did not have any statutory pendency entitlements.”
An Impartial Hearing Officer, appointed and compensated by Cornwall to hear T.M.’s case, ruled otherwise. Because of Cornwall’s outright refusal to recognize and provide T.M.’s pendency services, the hearing officer ordered Cornwall to reimburse T.M.’s parents for the ongoing expense of maintaining T.M.’s services.
Thereafter, Cornwall took an appeal to the State Review Officer (SRO). However, even the SRO agreed that Cornwall had “unlawfully failed” to provide T.M.’s pendency services during the 2010-2011 school year case and that because of Cornwall’s outright refusal, the presiding hearing officer had properly ordered Cornwall to reimburse T.M.’s parents for the cost of maintaining his pendency services.
On a further appeal to the federal district court, and upon T.M.’s motion for a preliminary injunction, Cornwall advised the court that it was now ready to honor and acknowledge T.M.’s pendency rights, but that Cornwall was entitled to select a brand new team of service providers for T.M.! Judge Briccetti rejected Cornwall’s proposal and granted T.M.’s motion for a preliminary injunction, reasoning “… having forced the parents to secure private pendency service providers, Cornwall cannot now demand control over who will provide thependency services and where the services are to be administered.”
As a result of Judge Briccetti’s ruling, Cornwall must now reimburse T.M.’s parents for T.M.’s pendency provider costs from July 1, 2011 to the time that there is a final order in the case. The T.M. decision now stands as helpful federal court precedent to assist similarly situated families.
The outcome represents significant relief for R.G.’s mother, a single parent with an extremely modest income. R.G.’s mother had complained over time to multiple staff at R.G.’s public school that R.G. was not making meaningful progress. In response, R.G.’s school refused to make any adjustments or offer any additional services. At the end of her rope, R.G.’s mother paid for a private evaluation and hired an autism expert (a Board Certified Behavior Analyst) to observe R.G. in his District 75 public school placement. The DOE, however, then ignored the recommendations of R.G.’s expert. After giving the DOE written notice, R.G’s mother then placed R.G. at The Rebecca School.
The IHO went beyond merely finding that the DOE’s program for R.G. was deficient. The IHO also found that the DOE intentionally withheld and concealed information about R.G’s speech abilities that it had a duty to disclose to R.G.’s mother.
The result in R.G. shows how valuable the “compensatory education” and “prospective funding” remedy can be for a parent without adequate financial resources. It also underscores how vigilant parents need to be to intentional concealment situations.