Parents of autistic children win two important lawsuits against local school sys

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Parents of autistic children win two important lawsuits against

local school systems. Is Virginia ready for the fallout?

by Walters

and Karl may have won in court, but they say victory

eludes them. They still don't know how, or for how long, their 12-

year-old son, , will be able to stay in the private school he

attends. It costs $30,000 a year. has autism, a

developmental disability that significantly impedes a child's

capacity to communicate, talk and socially interact with others.

In late August, U.S. District Judge E. Payne ruled that

didn't receive what federal law entitles every child under

the Individuals with Disabilities Education Act: a free and

appropriate public education in the least-restrictive environment.

" The question is, who pays for him to be where he is [now]? " his

mother asks. " That's the gray area in the law. "

The s' case against Hanover County Public Schools marks the

second time in three months that Judge Payne has sided with parents

of autistic children who claimed that public school systems broke

the

law by failing to properly educate a child with autism and,

consequently, had to provide private-school tuition reimbursement.

says her son's experience in public schools was a

disaster, accompanied by a significant regression in reading and

communicating. Conversely, she says, he progressed well in a one-on-

one, private-school setting.

Payne's recent decisions are a departure from the norm in which

school districts routinely win legal battles such as the s'.

The rulings have been the buzz of educators, parents of children

with

disabilities, lawyers and politicians. They also underscore a

growing problem within the realm of special education: How well are

public schools providing for the specific and increasing needs of

children with autism?

Payne's rulings appear to be, for now, a litmus test.

In the case, Payne ruled that Hanover County Public Schools

is liable for the $30,000 it costs for to attend the Dominion

School for Autism, a tiny private school on Monument Avenue, during

the 2005-06 school year. (In 2003 and 2004, the s paid

nearly $90,000 in tuition at another private school for autism in

Chesterfield County.)

In June, Payne found that Henrico County Public Schools had failed

to adequately teach Reid Tutwiler, an 8-year-old boy with autism.

After three years of disputes with the school system, the boy's

parents, and Rick Tutwiler, pulled their son out of the

county school and placed him in the private Faison School for

Autism, which costs about $65,000 a year.

Payne ordered the Henrico school system to stop stalling, as it had

through hearings and appeals, and pay the Tutwilers the money spent

on Faison. Today, Reid Tutwiler is enrolled again in Henrico Public

Schools, in an individualized special-ed program. And while the

school system still is working out how much it pays the Tutwilers

and for what period of time, the family stands to receive around

$500,000 in attorney's fees and tuition reimbursements. Likewise,

says, her family expects their case will cost Hanover

County upward of $250,000.

Consider the proverbial floodgates opened. The combined settlements

that Henrico and Hanover counties are forced to pay in the two cases

are small potatoes, some say, compared with the potential onslaught

of lawsuits that could come as a result.

Payne's rulings in favor of the s and Tutwilers may give

traction to other parents who are dissatisfied with their children's

special-ed programs. Still, fearing an uphill battle against a

bureaucratic school system, many stop short of legal action. On

this, is resolute: " More parents need to do what

we've done. "

Most parents don't. They just file complaints. Yet the scene behind

the cases that make headlines appears fractured. In 2005, parents

made 107 formal complaints called " due process " filings on behalf of

their children in special-ed programs in Virginia. Of those, parents

prevailed in only two.

It's a concern for legislators, says Brat, an economics

professor at Randolph-Macon College. Brat helped research and draft

a bill introduced last year by state Sen. Walter Stosch, R-Henrico,

providing up to $10,000 in tuition assistance for parents of

children with disabilities. It didn't pass, but the bill will be

reintroduced in the 2007 General Assembly session. " Our bill is a

reaction to those stories, " Brat says of the and Tutwiler

cases.

" These cases should be a wake-up call for schools, " says W.D.

, an attorney who specializes in special-education law. Based

in Deltaville, and his wife, Pamela, have published books and

papers on the subject. They lecture nationwide and operate a Web

site, slaw.com. Autism accounts for more special-education

litigation than any other disability, says.

It's easy to see why. Autism is taking school systems by storm. The

number of children with autism has skyrocketed to epidemic

proportions. It's estimated that one in 166 children has some form

of the disorder.

In Henrico, from 2002 to 2005 there was a 52.3 percent increase in

the number of children in public-school programs with autism. That

number jumps to 83.1 percent in Chesterfield; 84.6 percent in

Hanover; and 5.8 percent in Richmond. (The Richmond number appears

equally chilling, educators say, because it suggests children aren't

being properly diagnosed.) The total number of children diagnosed

with autism in all four localities who receive public instruction

jumped from 438 in 2002 to 695 in 2005.

Congress first enacted the Individuals with Disabilities Education

Act in 1975. But the problem with the legislation, some say, is that

the act doesn't factor out specific disabilities — autism as opposed

to muscular dystrophy or cerebral palsy, for instance — and how

school systems should deal with the disabilities.

The state doesn't mandate how local school districts develop special-

education programs for children with autism. Despite that there are

more children diagnosed with autism than any other disability,

there's no specific autism curriculum or autism certification

requirements for teachers in Virginia public schools, leaving ample

room for interpretation.

Payne's recent rulings suggest it may be time for a systemic

overhaul. Henrico County Public Schools is in the process of

implementing changes as a result of the Tutwiler case, says Barbara

Driver, director of special education for the school district.

Driver says the spike in autistic students reflects a national

trend, albeit one still considered relatively new. " Tutwiler

reiterated the need for [accurate] data collection, " Driver

says, " that structural means is the No. 1 area we're focusing on. "

Henrico recently added two full-time " technical support " positions

dedicated to autism, she adds. And in situations where a child's

autism is so severe that a public-school setting — even classrooms

with a 1:3 child-to-teacher ratio — isn't adequate, Henrico will

send

the child to a private school such as Faison. " We're doing the best

we can to meet every child's individual needs, " Driver says. " This

is growing and it's a very, very complicated issue. "

It's an issue often negotiated through complaints with school

systems before winding up in court.

" The and Tutwiler cases show us what many in the special

education community have known for years, " says Philip

Strother, an attorney representing the s. " There is a

serious need for a fundamental restructuring of the way our

communities provide educational services to our children who suffer

from disabilities. "

The cases reveal chronic compliance problems by the school districts

that aren't confronted until parents become intensely involved. In

order to get the results of, say, a Tutwiler or case,

parents also must be able to afford specialized legal counsel, he

says. " If more parents challenge the school districts' current

approach, the equation will shift, and it will become cost-

prohibitive for the school districts to litigate these cases

individually, " Strother says. " In turn, " he adds, " the schools will

be financially pressured to develop appropriate programs. "

But what are those programs or initiatives, and how much time and

money will it take to implement them?

Richmond School Board representative Carol A.O. Wolf, who home-

schools a son with a disability, says an answer could be found in a

kind of charter school for children with autism.

It would be a regional effort, Wolf says, such as the Maggie L.

Governor's School. She stops short of suggesting a segregated

environment that runs counter to " mainstreaming " a child in a

traditional classroom setting.

" Thirty years ago nobody thought about autism, " Wolf says. " But now

we have to figure out how we're going to meet the needs of these

children and not keep getting caught up in protracted legal battles. "

For , the fight is ever more personal — and

immediate. " We can't afford to waste any more time, " she says. S

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