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An explosion in autism has given rise to a wave of school lawsuits filed nationwide by parents seeking to pressure school districts into providing private school tuition and better services for their autistic children. And with the help of attorneys armed with expertise in special education law, parents are making some headway in both administrative hearings and in the courts. In the last year, one New York City law firm, Mayerson & Associates, has handled more than 250 cases on behalf of autistic children seeking tuition reimbursement. Also, over the past two years, New York City has paid out in 50 settlements topping $100,000 each to families of autistic children seeking private tuition. In Virginia, parents of autistic children won two key lawsuits against local school districts earlier this year, when a judge ruled that the public schools had failed to properly educate the children, and ordered them to pay the students’ private tuition. JP, a minor v. Hanover County School Board, No. 3:06cv28 (E.D. Va.); and County School Board of Henrico County v. R.T. a minor, No. 3:04cv923 (E.D. Va.). And in Washington, the U.S. Supreme Court in October agreed to consider an appeal from an autistic child and his parents who want to sue over his school tuition without hiring a lawyer. Winkelman v. Parma City School District, No. 05-983. One in 166 In the 1980s, the U.S. Centers for Disease Control and Prevention estimated that four to five in 10,000 children had some form of autism. Today, the rate has jumped to one in 166, a rate that has overwhelmed the public schools. Autism is a mental condition, present from early childhood, characterized by difficulty in communicating, forming relationships and in using language and abstract concepts. Special education lawsuits involving autistic children typically include claims that the school district has not properly assessed the child’s needs. Parents sue for everything from more specialized behavioral therapy to more one-on-one instruction to after-school therapy. “The whole autism piece has really exploded now in my office. In 50% or more of the calls that we receive there is some kind of autism involved,” said special education attorney Areva D. Martin of Martin & Martin in Los Angeles, who has between 50 and 60 cases involving autistic children in legal disputes with school districts. In the last five years, Martin has handled more than 100 autism cases-a large majority of them at the administrative level. She said parents in California with autistic children are suing over everything from tuition reimbursement to better services to moving their child out of private schools and back into mainstream schools. Martin noted that the increase in cases “has just caught school districts off guard and their response has caused there to be a divide and for an adversarial situation to occur with parents,” she said. “And, there are limited resources.” Michael Best, general counsel for the New York City Department of Education, which has 4,423 autistic students enrolled in public schools, said that in the last few years, the city has hired 10 new lawyers to focus specifically on special education hearings. He would not attribute the hirings to autism cases, saying only that, overall, special education disputes are on the rise. From 2000 to 2006, the number of special education hearing requests in New York City increased by almost 50%, from 3,348 to 4,794. A breakdown for autism cases was not available. With regard to autism disputes, Best said that he believes the city is fulfilling its legal obligation in meeting the needs of autistic children. If private schooling is needed, the city will pay for the tuition, he noted. Best added that the district settles most of its autism cases. “Before the lawyers get involved, the special education staff will work with the parents to try to come up with a solution,” Best said. “My preference is that the instructional people work it out before it even gets to us.” Fear of fees Ana Gonzalez, who represents the Yonkers, N.Y., School District in special education litigation, can attest to the financial strains that schools are under in trying to meet the needs of autistic children. “When I see an autism case come across my desk, I presume that the demand is going to be high,” Gonzalez said. Gonzalez recently settled an autism case for the school district that involved a 4-year-old preschooler whose private education and specialized services cost between $175,000 and $200,000 a year. “That’s an enormous amount of money,” said Gonzalez, who settled the case for significantly less. “If we have just a few of those cases, that’s a staggering amount for any school district.” And it’s not just tuition that has school districts on edge, Gonzalez said. They could also get hit with attorney fee reimbursements, for which parents will often sue. That’s what happened a few years ago, when a judge ordered the district to reimburse a family more than $60,000 in attorney fees. The district was also paying that same family $100,000 in tuition. Under the federal Individuals With Disabilities Education Act, parents cannot sue a school district over special education matters until they have exhausted the administrative due process. With autism cases, lawyers maintain their expertise is needed at the administrative hearings, where pro se parents can be intimidated by school lawyers and lose their cases. Gary Mayerson of the New York firm that has handled 250 autism cases, said that parents too often go it alone before school boards only to be told that their requests are out of reach. “Many of the school districts aren’t embarrassed to tell them, ‘We can’t afford that. It’s not on the menu,’ ” Mayerson said. He added that “[W]e’re not looking to get optimal programs. What we are looking to get are effective autistic programs. Nothing more, but nothing less.” School districts need to work harder at meeting the needs of autistic children, argued attorney Jerome Shestack of Philadelphia’s Wolf, Block, Schorr and Solis-Cohen, who last year successfully sued a school district over tuition reimbursement for an autistic child. Bell v. Upper Dublin School District, No. 03-CV-2120 (E.D. Pa.). “I think most of the school districts are not fully meeting the needs of the children. And I think most school districts are playing hardball with the parents who want to get reimbursements,” said Shestack, who is a past president of the American Bar Association. “I think it’s really a disgrace the way many school districts are handling this.” Shestack argues that the U.S. Supreme Court, in recent years, has made it harder for parents with autistic children to legally fight for better schooling. He cited 2005 Schaffer v. Weast, 546 U.S. 49, in which the Supreme Court held that the parents-not the school districts-have the burden of proof to show that a school district is not meeting a disabled child’s needs. And this year, in Arlington Central School District Board of Education v. Murphy, 126 S. Ct. 2455 (2006), the high court ruled that if parents win special education cases, the school district does not have to reimburse them for expert witness fees. “I think many courts have a lot to learn about this subject,” Shestack said. “Right now, the way the Supreme Court has ruled, the system is stacked up against the parents.” No clear direction New York attorney Raymond G. Kuntz, who has represented schools in a wide range of litigation over the last two decades, including two successful U.S. Supreme Court cases, denied claims that schools are failing to meet the needs of autistic children. “School districts are devoting a higher percentage of their resources than they ever have to the education of autistic children as a group,” said Kuntz of Kuntz, Spagnuolo, Scapoli & Murphy in Bedford, N.Y., which specializes in school litigation. “I see it from the inside, and I see all the personnel that have to be gathered together to address these issues,” said Kuntz, whose firm is currently handling at least 20 autism cases. Kuntz argued Arlington Central before the high court. He also argued the 1982 landmark special education case before the U.S. Supreme Court in which the high court set the standards for what schools are obligated to furnish to children with special needs. Board of Education of Hendrick Hudson Central School District v. Rowly, 458 U.S. 176. Kuntz said that what’s especially problematic for schools is that autism is a relatively new condition with myriad aspects that the medical community itself has yet to grasp. And without any clear direction from the scientific community on what teaching methods work, he said, schools are stuck trying to figure it out themselves. “When the doctors can’t tell you exactly why it works, it’s difficult to find educational stratagems to get learning across to that youngster,” said Kuntz. Law firms committing As school districts wrestle with the issue, law firms are devoting more personnel to the practice area. Last year, after witnessing an increase in calls for legal help from parents with autistic children, Catherine Merino Reisman convinced her law firm, Philadelphia’s Montgomery, McCracken, Walker & Rhoads, to form a special education practice group. She now co-chairs the group, which has six lawyers specially trained to handle autism cases. “I think there’s a need for attorneys in this area. It’s hard to be pro se [in autism cases],” said Reisman, who also has an autistic child. Reisman noted that some colleagues recently attended a seminar where autism cases were being examined. The consensus was that “the pro se parents weren’t doing so well.” Reisman, who currently has an autism case pending in federal court, said that in recent years, she has secured several favorable settlements in tuition reimbursement cases both in and out of court. She cited one federal case in which a school district was ordered to continue funding a private school placement while the parties litigated the appropriateness of a change to public school. “There have certainly been big cases that parents have won in this area,” Reisman said.

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