ABA

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Analysis of Zachary Deal v. Hamilton County Department of Education

by Mayerson, Esq.

Using excoriating language such as " appalling, " " evasive, " " closed mind, "

" combative, " and " untruthful, " Administrative Law Judge A. s has

held in a 45-page decision that the Hamilton County (Tennessee) Department of

Education (HCDE) repeatedly violated federal law in failing to provide an

appropriate education to Zachary Deal, a seven-year-old Chattanooga boy with

autism.

Judge s found that in violation of the Individuals With Disabilities

Education Act (IDEA), a federal statute which guarantees an individualized

educational program to children with disabilities, the HCDE embraced and

perpetuated an illegal policy of refusing to consider the very autism

intervention--- intensive one-to-one Applied Behavior Analysis (ABA)--- which

Zachary needed to make educational progress.

ABA - Lovaas Programs: Long Track Record of Success

The efficacy of the " ABA " intervention for children with autism was first

documented and published by Dr. O. Ivar Lovaas, a UCLA professor, in 1987 after

decades of research.

Dr. Lovaas' 1987 scientific study, which utilized experimental controls,

reported that with approximately three years of intensive, one-to-one ABA,

nearly half of young children with autism were able to succeed academically in

mainstream educational settings and be considered asymptomatic and

" indistinguishable " from their same age, typically developed peers.

The 1987 ABA study also showed measurable, post-treatment IQ gains that advanced

many of the children in the study into the range of " normal " intelligence. As

reported in the Court's decision, the evidence at the trial showed that current

replication efforts largely have been tracking the outcomes reported in the 1987

ABA study.

Surgeon General Report Supports Intensive ABA

In 1999, as Judge s found, the Surgeon General of the United States

published a report which endorsed intensive ABA, and which called Dr. Lovaas'

1987 study a " well designed study. "

Judge s found that " the Hamilton County Department of Education

consistently rejected providing ABA to Zachary or any other student [even

though] Hamilton County does not even have a methodology for educating autistic

children. " Judge s also stated that " Experts on both sides testified that

selecting the wrong methodology for an autistic child can mean the difference

between an independent adult life and a lifetime of dependency and support. "

Zachary Made " Tremendous Progress " in ABA Program

Judge s found that " the Deals made a correct and legally defensible

choice when, in the face of the school system's unbending intransigence, they

opted to continue [and fund] the successful ABA program Zachary had been

receiving. "

In his decision, Judge s found that Zachary had made " tremendous progress "

as a result of receiving intensive ABA and that " Zachary's greatest gains

occurred when he received no services from HCDE " . Although the ABA intervention

can be costly, Judge s found that ABA " may be cost-effective over time by

allowing a higher percentage of autistic children to become normal functioning,

productive adults. "

School Witnesses: Lack of Credibility

After viewing their demeanor, responsiveness and whether or not they were

forthright in their answers as opposed to evasive or combative when testifying,

the Court singled out a number of Hamilton County functionaries for pointed

criticism.

The Court expressly held that Hamilton County's autism consultant, Ann Kennedy,

was not credible, and " showed an appalling lack of knowledge… "

The Court also found a psychologist newly-hired by Hamilton County,

Hooper, to be " not credible, " stating " Mr. Hooper demonstrated that he would go

to any length to testify favorably for HCDE. "

Other HCDE functionaries expressly found by the Court to be lacking in

credibility include a Wiesen, a special education teacher/speech language

pathologist who had been Zachary's teacher and speech pathologist in the year

prior to the lawsuit, and Jane Dixon, an HCDE exceptional education supervisor

who served as the HCDE's main contact with the family.

In his order, Judge s stated that Ms. Dixon testified " that she had never

told the Deals that cost was a factor involved in HCDE's decision to deny Lovaas

style ABA to Zachary even though the Deals produced a tape recording of a

meeting they had with Ms. Dixon in which Ms. Dixon clearly announces that cost

is a factor. "

School Rebuffed Parents' Requests for Information

The record reflected that contrary to law, the HCDE did not allow Zachary's

parents to ask any questions at some meetings that were scheduled to discuss

Zachary's educational program.

In one meeting, the HCDE " informed the Deals that the 'powers that be' were not

implementing ABA programs. " In this connection, an internal HCDE memorandum

surfaced during the trial that reflected the HCDE had flagged Zachary's case as

" a sensitive case with regards to school program and/or Lovaas " before his

parents even requested ABA from HCDE.

School Refused to Provide ESY Services

Judge s also found the HCDE erred in not providing Zachary summer

services [ESY] for 1999 and 2000. Judge s stated that " Summer services…are

intended to address the child's needs. The concept is even labeled 'extended

school year' not 'extended school program'…HCDE is in error when it maintains

that the purpose of ESY is to continue an existing IEP and that, if there is no

agreed upon IEP, there is nothing to continue.

The purpose of ESY, like the rest of the IDEA and its implementing regulations,

is to educate disabled children. The need for and design of an ESY program

begins with an assessment of the child's needs, not the level of cooperation

between the school system and the child's parents. "

27-Day Due Process Hearing: Conflict Between Science & Status Quo

Zachary's hearing, which began in March of 2000 and involved 27 days of

testimony from over twenty witnesses and tens of thousands of pages of

documentary evidence, took nearly a year to complete. There also were extensive

pretrial and post-trial proceedings.

Judge s remarked in his decision that " Neither side left a stone unturned

or un-thrown in attacking the efficacy of the educational approach advocated by

the other side. "

Judge s likened the litigation to being a classic conflict between science

and the status quo, stating " Science and innovation have warred with orthodoxy

at least since Galileo was forced to recant in the shadow of the rack. "

Judge s found, in direct violation to IDEA, that " money " was a prime

motivating factor in Hamilton County's refusal to provide Zachary with the ABA

intervention.

However, according to previous reports and filings, Hamilton County apparently

has already spent in excess of $300,000 in legal fees to litigate against

Zachary and his parents. HCDE may now be statutorily liable to pay hundreds of

thousands of dollars in statutory attorneys' fees to Zachary's attorneys. This

is in addition to the reimbursement and funding relief which the Court ordered

for Zachary covering a three-year time frame.

Zachary and his parents, and Maureen Deal, were represented by S.

Mayerson, of New York City and Theodore Kern of Knoxville. The HCDE was

represented by D. Lander and the Chattanooga law firm of Chambliss, Bahner

& Stophel.

Decision in Word and pdf from Mayerslaw

Decision in pdf from slaw

Mayerson, Esq.

Mayerson & Associates

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Phone: 212-265-7200

Website: http://www.mayerslaw.com

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