Using excoriating
language such as "appalling," "evasive," "closed
mind," "combative," and "untruthful," Administrative
Law Judge A. James Andrews has held in a 45-page decision that the Hamilton
County (Tennessee) Department of Education (HCDE) repeatedly violated
federal law in failing to provide an appropriate education to Zachary
Deal, a seven-year-old Chattanooga boy with autism.
Judge Andrews
found that in violation of the Individuals With Disabilities Education
Act (IDEA), a federal statute which guarantees an individualized educational
program to children with disabilities, the HCDE embraced and perpetuated
an illegal policy of refusing to consider the very autism intervention---
intensive one-to-one Applied Behavior Analysis (ABA)--- which Zachary
needed to make educational progress.
ABA - Lovaas
Programs: Long Track Record of Success
The efficacy
of the "ABA" intervention for children with autism was first
documented and published by Dr. O. Ivar Lovaas, a UCLA professor, in
1987 after decades of research.
Dr. Lovaas' 1987 scientific study, which utilized experimental controls,
reported that with approximately three years of intensive, one-to-one
ABA, nearly half of young children with autism were able to succeed
academically in mainstream educational settings and be considered asymptomatic
and "indistinguishable" from their same age, typically developed
peers.
The 1987 ABA study also showed measurable, post-treatment IQ gains that
advanced many of the children in the study into the range of "normal"
intelligence. As reported in the Court's decision, the evidence at the
trial showed that current replication efforts largely have been tracking
the outcomes reported in the 1987 ABA study.
Surgeon General
Report Supports Intensive ABA
In 1999,
as Judge Andrews found, the Surgeon General of the United States published
a report which endorsed intensive ABA, and which called Dr. Lovaas'
1987 study a "well designed study."
Judge Andrews found that "the Hamilton County Department of Education
consistently rejected providing ABA to Zachary or any other student
[even though] Hamilton County does not even have a methodology for educating
autistic children." Judge Andrews also stated that "Experts
on both sides testified that selecting the wrong methodology for an
autistic child can mean the difference between an independent adult
life and a lifetime of dependency and support."
Zachary Made
"Tremendous Progress" in ABA Program
Judge Andrews
found that "the Deals made a correct and legally defensible choice
when, in the face of the school system's unbending intransigence, they
opted to continue [and fund] the successful ABA program Zachary had
been receiving."
In his decision, Judge Andrews found that Zachary had made "tremendous
progress" as a result of receiving intensive ABA and that "Zachary's
greatest gains occurred when he received no services from HCDE".
Although the ABA intervention can be costly, Judge Andrews found that
ABA "may be cost-effective over time by allowing a higher percentage
of autistic children to become normal functioning, productive adults."
School Witnesses:
Lack of Credibility
After viewing their demeanor, responsiveness and whether or not they
were forthright in their answers as opposed to evasive or combative
when testifying, the Court singled out a number of Hamilton County functionaries
for pointed criticism.
The Court expressly held that Hamilton County's autism consultant, Ann
Kennedy, was not credible, and "showed an appalling lack of knowledge…"
The Court also found a psychologist newly-hired by Hamilton County,
Scott Hooper, to be "not credible," stating "Mr. Hooper
demonstrated that he would go to any length to testify favorably for
HCDE."
Other HCDE functionaries expressly found by the Court to be lacking
in credibility include Paula Wiesen, a special education teacher/speech
language pathologist who had been Zachary's teacher and speech pathologist
in the year prior to the lawsuit, and Jane Dixon, an HCDE exceptional
education supervisor who served as the HCDE's main contact with the
family.
In his order, Judge Andrews stated that Ms. Dixon testified "that
she had never told the Deals that cost was a factor involved in HCDE's
decision to deny Lovaas style ABA to Zachary even though the Deals produced
a tape recording of a meeting they had with Ms. Dixon in which Ms. Dixon
clearly announces that cost is a factor."
School Rebuffed
Parents' Requests for Information
The record
reflected that contrary to law, the HCDE did not allow Zachary's parents
to ask any questions at some meetings that were scheduled to discuss
Zachary's educational program.
In one meeting, the HCDE "informed the Deals that the 'powers that
be' were not implementing ABA programs." In this connection, an
internal HCDE memorandum surfaced during the trial that reflected the
HCDE had flagged Zachary's case as "a sensitive case with regards
to school program and/or Lovaas" before his parents even requested
ABA from HCDE.
School Refused
to Provide ESY Services
Judge Andrews
also found the HCDE erred in not providing Zachary summer services [ESY]
for 1999 and 2000. Judge Andrews stated that "Summer services…are
intended to address the child's needs. The concept is even labeled 'extended
school year' not 'extended school program'…HCDE is in error when
it maintains that the purpose of ESY is to continue an existing IEP
and that, if there is no agreed upon IEP, there is nothing to continue.
The purpose of ESY, like the rest of the IDEA and its implementing regulations,
is to educate disabled children. The need for and design of an ESY program
begins with an assessment of the child's needs, not the level of cooperation
between the school system and the child's parents."
27-Day Due
Process Hearing: Conflict Between Science & Status Quo
Zachary's
hearing, which began in March of 2000 and involved 27 days of testimony
from over twenty witnesses and tens of thousands of pages of documentary
evidence, took nearly a year to complete. There also were extensive
pretrial and post-trial proceedings.
Judge Andrews remarked in his decision that "Neither side left
a stone unturned or un-thrown in attacking the efficacy of the educational
approach advocated by the other side."
Judge Andrews likened the litigation to being a classic conflict between
science and the status quo, stating "Science and innovation have
warred with orthodoxy at least since Galileo was forced to recant in
the shadow of the rack."
Judge Andrews
found, in direct violation to IDEA, that "money" was a prime
motivating factor in Hamilton County's refusal to provide Zachary with
the ABA intervention.
However, according to previous reports and filings, Hamilton County
apparently has already spent in excess of $300,000 in legal fees to
litigate against Zachary and his parents. HCDE may now be statutorily
liable to pay hundreds of thousands of dollars in statutory attorneys'
fees to Zachary's attorneys. This is in addition to the reimbursement
and funding relief which the Court ordered for Zachary covering a three-year
time frame.
Zachary
and his parents, Phillip and Maureen Deal, were represented by Gary
S. Mayerson, of New York City and Theodore Kern of Knoxville. The HCDE
was represented by Gary D. Lander and the Chattanooga law firm of Chambliss,
Bahner & Stophel.
Decision
in Word and pdf from Mayerslaw
Decision
in pdf from Wrightslaw
Gary Mayerson,
Esq.
Mayerson & Associates
Phone:
212-265-7200
Website:
http://www.mayerslaw.com
