There has been a
dramatic worldwide increase in reported cases of autism over the past decade.
Autism is much more prevalent than previously thought, especially when viewed
as a spectrum of disorders (ASD).
According to the CDC, approximately 1 in 110 children in the United States have
an autism spectrum disorder (ASD) or an estimated prevalence of about 1%. The occurrence of autism is also evident in the number
of students with ASD receiving special educational services. Data collected
for the Department of Education indicate that the number of children ages 6
through 21 identified with autism served under the Individuals With Disabilities Act (IDEA) has increased by more than 600 percent, from 42,000 in
1997 to over 250,000 in 2007.
The increase in autism is also reflected in the
frequency of autism-related litigation and court decisions. A recent article
appearing in the Journal of Special Education Leadership (Autism
Litigation Under the IDEA: A New Meaning of “Disproportionality?’) by Lehigh
University professor of education and law, Dr. Perry Zirkel,
explored whether the litigation concerning students with autism is
disproportional to their enrollment in special education programs under IDEA.
Zirkel analyzed 201 court decisions under IDEA that appeared in West’s
Education Law Reporter. He limited the analysis to the overlapping FAPE
(Free Appropriate Public Education) and LRE (Least Restrictive Environment)
categories as previous studies showed them to be the major part of IDEA
litigation. The FAPE category consisted of decisions where the parent
challenged the appropriateness of the child’s individual program or placement.
This category also included cases where the court decided the appropriateness
of the proposed placement as the first step in the tuition reimbursement
analysis. The LRE category consisted of cases where the parents and district
sought different placements, and the court used the test, or set of criteria,
applicable in its federal appellate jurisdiction for determining the LRE.
The study found that the child’s disability
classification was identified as autism in 64 (32%) of 201 FAPE/LRE decisions
analyzed between 1993 and 2008. Autism litigation accounted for an average of
37% from 1997 to 2008, ranging from 6% in the period closest to the 1990
addition of autism to the list of IDEA disability classifications to 39% in the
most recent four year period 2005-2008. Most importantly, Zirkel found that
when comparing the litigation percentage with the autism percentage in the
special education population for the period 1993 to 2006, the ratio was
approximately 10:1. Overall, the FAPE/LRE court cases are over 10 times more
likely to concern a child with autism than the proportion of children with this
disability in the special education population.
The study suggests that the reasons for this
disproportionality (or overrepresentation) of children with autism in FAPE/LRE
litigation are multifaceted. An initial explanation concerns the severity of
the disability and the resulting emotional stress placed on parents/caregivers
and families. Another explanation may involve “cost.” For example, children
with ASD typically receive a significantly higher number of different special
education and related services than students with other disabilities. As a
result, the average per-pupil expenditure for special education services for
school-age children with autism is often more than for other IDEA disability classifications.
This relative cost represents high stakes for both parents and districts and
may contribute significantly to the motivation for litigation (e.g., the number
of tuition reimbursement cases in the FAPE/LRE cases for autism). A third
contributing factor may be the recent attention given to autism compared to
other IDEA disability classifications together with the complexity of the
disorder itself. The media attention given to autism and emergence of advocacy
groups have also increased parents’ knowledge, but often popularize treatments
that are not supported in the scientific literature and/or viable in
educational contexts. As Zirkel comments, “…with the underlying mutual motives
of high costs and methodological controversy, it is not surprising that the
parents of children with autism would be more prone to litigation than the
parents of children with other disabilities.”
This investigation has several important (and practical)
implications. For example, school district administrators should pay particular
attention to providing effective evidence-based interventions and programs for
children with autism and to establishing effective communications with their
parents. Parent-professional communication and collaboration are key components
for making educational and treatment decisions. On-going training and education
in autism are also important for both parents and professionals. Educators and
support professionals who are trained in specific methodology and techniques
will be most effective in providing the appropriate services and in modifying
curriculum based upon the unique needs of the individual child. Given the
limited success of many school districts in addressing this complex disability,
school officials must also be prepared to address the expected complaints and
grievances from parents of children with autism. At this point, special
education leaders should investigate the use of various alternate dispute
resolution mechanisms such as mediation and IEP facilitation. As Zirkel concludes,
“Although such steps are appropriate with all parents, especially with those of
children with disabilities, these results suggest that, without such priority
extra efforts, the likelihood of the parents of students with autism filing for
an impartial hearing to challenge the IEP and persisting through this costly
and cumbersome adversarial process to a court decision will remain
disproportionally high.”
Zirkel, P. (2011). Autism
litigation under the IDEA: A new meaning of “disproportionality?” Journal of
Special Education Leadership, 24, 92-103.
The full text article is
available at
© Lee A. Wilkinson, PhD
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1 comments:
Perhaps the appearance of this disproportionality is due to the fact that while there are therapies that can remediate many of the deficits presented by an autistic child, they often require long hours of skilled interventions which may be quite costly. I have seen non verbal 5 and six year old children become verbal with the skilled application of 30 hours per week of ABA Discrete Trial Training and then "plateau" when services were cut back to 15 hours a week. Initially the parents had to sue to receive the 30 hours for several years. School districts are often unprepared to provide this best practices level of service for financial reasons. Parents on the other hand are more informed than ever about effective therapies for children on the spectrum and are unwilling to accept no for an answer and are forced to litigate. But often they have no other option, if they have the best interests of their child at heart.
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