Judging Autism 

Parents of autistic children win two important lawsuits against local school systems. Is Virginia ready for the fallout?

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James Peterson 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 Robert E. Payne ruled that Peterson 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 Petersons' 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.

Linda Peterson 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 Petersons'. 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 Peterson case, Payne ruled that Hanover County Public Schools is liable for the $30,000 it costs for James 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 Petersons 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, Courtney 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, Linda Peterson 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 Petersons 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, Linda Peterson 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 David 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 Peterson and Tutwiler cases.

"These cases should be a wake-up call for schools," says Peter W.D. Wright, an attorney who specializes in special-education law. Based in Deltaville, Wright and his wife, Pamela, have published books and papers on the subject. They lecture nationwide and operate a Web site, Wrightslaw.com. Autism accounts for more special-education litigation than any other disability, Peter Wright 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 Peterson and Tutwiler cases show us what many in the special education community have known for years," says Philip Carter Strother, an attorney representing the Petersons. "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 Peterson 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. Walker 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 Linda Peterson, the fight is ever more personal — and immediate. "We can't afford to waste any more time," she says. S

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