Autism Litigation Under IDEA

There has been a 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 45 children in the United States have an autism spectrum disorder (ASD) or an estimated prevalence of about 1.7%. The occurrence of autism is also evident in the number of students with ASD receiving special educational services. Since Congress added autism as a disability category to the Individuals With Disabilities Act (IDEA), the number of students receiving assistance under the special education category of autism over the past decade has increased from 1.5 percent to 9 percent of all identified disabilities. Autism now ranks fourth among all IDEA disability categories for students age 6-21.  

Autism Litigation

The increase in autism is also reflected in the frequency of autism-related litigation and court decisions. An 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 classification 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.” 

Implications

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.”

Article: http://blogs.edweek.org/edweek/speced/Zirkel%20Article%20on%20Autism%20Litigation%20Disproportional.PDF

Zirkel, P. (2011). Autism litigation under the IDEA: A new meaning of “disproportionality?” Journal of Special Education Leadership, 24, 92-103.

Zirkel, P. (2014). Legal Issues Under IDEA. In L. A. Wilkinson (Ed.), Autism spectrum disorder in children and adolescents:  Evidence-based assessment and intervention in schools (pp. 243-257). Washington, DC: American Psychological Association. 

Wilkinson, L. A. (2017). A best practice guide to assessment and intervention for autism spectrum disorder in schools. London and Philadelphia: Jessica Kingsley Publishers.

Lee A. Wilkinson, PhD, is a nationally certified and licensed school psychologist, and certified cognitive-behavioral therapist. He is author of the award-winning books, A Best Practice Guide to Assessment and Intervention for Autism and Asperger Syndrome in Schools and Overcoming Anxiety and Depression on the Autism Spectrum: A Self-Help Guide Using CBT. He is also the editor of a text in the American Psychological Association (APA) School Psychology Book series, Autism Spectrum Disorder in Children and Adolescents: Evidence-Based Assessment and Intervention in Schools. His latest book is A Best Practice Guide to Assessment and Intervention for Autism Spectrum Disorder in Schools, (2nd Edition)