New NJ Special Education Ruling: Providing Appropriate Services to Kids with Autism

A special education case came through the transom last week, courtesy of a group of  parents in Millburn, New Jersey. The case pinpoints a few percolating problems in NJ's special education arena, particularly school districts' struggles to provide adequate services to  kids with a diagnosis of autism.  This case, J.S. and K.S. v. Millburn Township Board of Education (not  yet online, but I've posted it here for reference) touches on some districts’ reluctance to classify kids as autistic, the politics of district/parent negotiations, and the role of our consortium of private education schools.

This December 7th ruling involves a young girl, referred to in court documents as A.C., and the services offered to her by Millburn Public Schools, an Essex County district that is rated as a “J” District Factor Group, the wealthiest possible designation. In October 2008,  the child’s parents approached the district because of concerns with her speech and social development. A.C. had just turned three years old and, under federal and state law, was eligible for special education services through her local school district.

To any informed lay reader, A.C. displayed clear signs of autistic-like symptoms.  Most of her speech was unintelligible. She made little or no eye contact, rocked back and forth, exhibited repetitive behavior, showed no evidence of imaginary play, had no interest in peers, and recited scripts from “Dora the Explorer” episodes.

However, the child study team assigned by the district -- speech therapist, occupational therapist, behavior specialist, special education teacher, social worker -- precluded a diagnosis of autism because, as stated repeatedly in testimony, the mother said a doctor had said that A.C. wasn’t autistic.

(During the mother’s testimony, she denied ever saying this. Also, federal law requires all school districts to test children in any area of a suspected disability.)

For example, the district’s social worker testified that “at the time of these evaluations and observations, which were in November/December of 2008,  [the child study team] did not consider that A.C. was on the Autism Spectrum because the parents reported to them that the pediatrician had said A.C. was not on the Autism Spectrum."

Instead of the intensive therapy typically prescribed for children with autism, including 30-40 hours a week of an intervention called Applied Behavioral Analysis or ABA, A.C. was enrolled in Millburn’s half-day integrated preschool and received one hour a week of speech therapy. Meanwhile, the parents received a private diagnosis of autism and hired a Scotch Plains-based autism education organization called Search Consulting to provide ABA. Over the next six months the district offered occupational therapy and a full-day program that included a few elements of ABA, but maintained that A.C. was making acceptable progress and that placement in the Millburn elementary school was appropriate and compliant with federal and state law.

You can guess the rest. The parents, gaining fluency in the world of autism education, hired a lawyer and an advocate. They unilaterally placed their daughter in a private special education school called Somerset Hills Learning Institute. Then they sued the district for tuition and legal fees.

Administrative Law Judge Caridad F. Rigo ruled that

A.C. was not properly evaluated in November and December of 2008 because the District failed to thoroughly assess and evaluate all the areas of suspected disability. Therefore the IEP of December 15, 2008, could not and did not offer A.C. any educational benefit. The IEP was not formulated to enable her to receive educational benefit. A.C. would not and never would receive any educational benefit. The December 2008 IEP placed A.C., a three-year-old child with severe delays in significant domains, in a half-day preschool integrated program. A.C. did not have the prerequisite learning and social skills to benefit from interacting with her peers. It should be noted that A.C. was at the church preschool program and there she was with typically developing peers and it was not working for her there. To be explicit, her placement in the integrated preschool program was simply inappropriate.

According to a Milburn parent, the cost to the district -- back payment to Somerset Hills and Search plus legal fees for parents and school board -- will come to over $500,000. The DOE listed annual tuition at Somerset Hills Learning Institute in 2011 at $113,936 (not including transportation). A.C., like all other classified children, is eligible for special education services through age 21. Another 14 years at the school (assuming no change in tuition or a change in placement) will cost Millburn about $1.6 million dollars.

Of course, it’s not just about the money (although one could argue that Millburn could have provided adequate services for that price tag). A.C. is one of a growing cohort of children who, by nature of the disability, is eligible for extensive services and represents one piece of NJ’s disorderly and unsustainable special education system. (For more of this, see my recent columns here and here.)

More on this later.