Analysis of the Amanda J.
v. Clark County Case
by
Pete Wright
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On
August 13, 2001, the U. S. Court of Appeals for the Ninth Circuit
reversed a U. S. District Court decision and ruled in favor of the
child and parents in Amanda
J. v. Clark County School District and Nevada Dept of Education.
Amanda
J. v. Clark County School District is a well-written decision
and a fascinating case. This case includes several unusual elements
that attorneys can cite for different propositions. Attorneys and
lay advocates should read this case more than once.
Unusual
Elements in Case
At the beginning of this decision is a section entitled "Autism"
which includes research findings about autism and other information
from a report, Educating
Children with Autism that was published by the National
Academy of Science in 2001.
Educating
Children with Autism discusses
autism and Applied Behavioral Analysis (ABA) or Lovaas therapy for
children with autism. The decision refers to this report and includes
the URL of the report as a footnote.
After
Amanda and her family moved to California, they were referred to
Dr. Robin Hansen, professor of Pediatrics and Director of Developmental
and Behavioral Pediatrics at the University of California - Davis
Medical Center. Dr. Hansen diagnosed Amanda with autism and referred
her parents to Families
for Effective Autism Treatment (FEAT)
Note:
We have developed friendships with several FEAT members. We subscribe
to the FEAT newsletter. We were surprised and pleased to see FEAT
recognized in this landmark decision.
Twists
& Turns in the Case
Nearly two years after moving to California, the family requested
a due process hearing against Clark County School District in Nevada
and the Nevada Department of Education..
The
parents prevailed before a Hearing Officer but were reversed by
the Review Officer. When the parents appealed to the U. S. District
Court, they lost again. When they appealed to the Ninth Circuit,
the three-judge panel reversed the District Court, and reinstated
the decision by the Hearing Officer.
The
parents prevailed on procedural issues. The court found that the
school district mis-identified Amanda as developmentally delayed.
The court also found that Clark County violated the parent’s
rights. The school psychologist did not inform the parents that
their child had characteristics of autism. The school district failed
to provide the parents with copies of their child’s evaluations.
Amanda did not begin to receive an in-home intervention program
until April, 1996.
ABA/Lovaas/
DTT - The Basics
While
Lovaas, ABA and DTT are often used synonomously, they are different.
ABA is Applied Behavioral Analysis. DTT is Discrete Trial Training.
"Lovaas" is named for the psychologist who published research
findings in the 1980s. All of these methods are ABA approaches.
ABA
/ DTT / Lovaas therapies are not mysterious. ABA or DTT is derived
from classic principles of learning theory. The first proponent
who published research was Dr. Ivar Lovaas who used principles of
behavior modification to design an effective educational approach
to teaching children with autism.
We
often use DTT as we learn a new task. We break the task / skill
down in specific discrete steps, master a step, move on to the next
step, and return to the steps mastered so the new skill becomes
ingrained.
In
ABA / DTT / Lovaas therapy, there is an ongoing analysis of the
steps learned and mastered, along with additional skills in the
hierarchy that need to be learned and the order in which they should
be learned.
While
ABA Lovaas therapy is not rocket science, it does require extensive,
meticulous data collection to determine when learning takes place,
and overlearning with intermittent reinformcement to achieve mastery.
Credibility
of Witnesses
The
credibility of the mother v. the school psychologist were at issue
in this case – and the mother prevailed.
According
to the court, the Hearing Officer did not believe the school psychologist
but found the mother to be a credible witness. The case focused
on whom to believe when there was conflicting testimony.
The
Court of Appeals identified school psychologist Mark Kenney and
speech pathologist Christy Zuckerman by name. Were the psychologist
and speech pathologist acting as gatekeepers? Were their actions
independent and on their accord? Or were did they take actions at
the behest of school administrators within the system?
In
most cases, there is a story behind the story. If
you know the inside story, let
us know.
Note:
Below are portions of the Ninth Circuit decision in Amanda J. However,
we strongly recommend that you download
the full decision that includes hyperlinks:
"Amada
was born in 1991. She and her family lived in Las Vegas, Nevada,
in the Clark County School District. On March 21, 1995, Amanda was
evaluated by school psychologist Mark Kenney and speech pathologist
Christy Zuckerman."
"Amanda’s
mother reported that Amanda “whirled herself for long periods
of time, did not play with toys appropriately, seemed not to hear,
lunged/darted about with spinning, toe-walking, etc., had severe
temper tantrums, had not developed friendships, got involved with
"rituals" such as lining things up, had communication
problems, and had strong reactions to changes in routine/environment.”
Procedural
Violations - School Witheld Critical Information from Parents
The
Court found that "Procedural violations that interfere with
parental participation in the IEP formulation process undermine
the very essence of the IDEA. An IEP which addresses the unique
needs of the child cannot be developed if those people who are most
familiar with the child's needs are not involved or fully informed."
In
Amanda's case, "the first time Amanda's parents saw the reports
indicating possible autism was in April 1996 during in IEP review
in Woodland California . . .'
"The
IEP team could not create an IEP that addressed Amanda's special
needs as an autistic child without knowing that Amanda was autistic.
Even worse, Amanda's parents were not informed of the possibility
that their daughter suffered from autism -- despite the fact that
the district's records contained test results indicating as much.
Not only were Amanda's parents prevented from participating fully,
effectively, and in an informed manner in the development of Amanda's
IEP, they were not even aware that an independent psychiatric evaluation
was recommended, an evaluation that Amanda's mother testified she
would have had performed immediately. These procedural violations,
which prevented Amanda's parents from learning critical medical
information about their child, rendered the accomplishment of the
IDEA's goals -- and the achievemetn of a FAPE -- impossible."
School
Did Not Give Parents Copies of Evaluation Reports
The Court reported that a copy of the report and recommendations
“was not given to Amanda’s mother. In addition, Amanda’s
mother said Kenney never discussed these recommendations with her.
Kenney claims that he did.”
The psychologist testified that "he told Amanda's mother the
results over the phone, including the possibility that Amanda was
autistic. The HO did not believe him . . ."
The
Court found:
“Zuckerman
found that Amanda qualified as ‘severely autistic’ under
the Childhood Autism Rating Scale, and recommended speech and language
therapy as well as further assessments in other areas. She also
believed that"[s]pecific activities should be developed and
demonstrated in the classroom to stimulate social interaction and
the development of communication skills." Zuckerman observed
that Amanda was "non-verbal" and engaged in "random
non-directed babbling." She was, however, able to imitate actions
and sounds from a videotape. Zuckerman had no documentation establishing
that she told Amanda's mother of the severe autism rating, but she
testified that her general practice was to discuss such results
with the child's parents. According to Amanda's mother, Zuckerman
never contacted her to discuss her findings.
“On
April 6, 1995, Amanda was found eligible for special education due
to her difficulties in the areas of receptive or expressive language,
cognitive ability, self-help, and social or emotional condition.
“Once Amanda had been deemed eligible for special education,
but prior to the initial IEP meeting, Amanda's mother requested
copies of Amanda's assessment reports. The District did not send
her any records until after the initial IEP was completed, and at
that time she received only a two-page summary of Kenney's observations.”
School
Did Not Advise Parents of Child's Diagnosis
Amanda’s
parents were not told that Amanda had characteristics of autism.
That
Fall, on or around October 31, 1995, Amanda and her parents moved
to California. Amanda’s files were forwarded to California.
The
Court continued:
“On
December 15, 1995, Dr. Michael Harris, a physician and Amanda's
uncle, referred Amanda to Dr. Robin Hansen, a professor of Pediatrics
and the Director of Developmental and Behavioral Pediatrics at U.C.
- Davis Medical Center, requesting that Amanda be evaluated because
of characteristics denoting autism. Amanda was diagnosed as autistic
for the first time on January 10, 1996, by Dr. Hansen, who referred
Amanda's parents to Families for Early Autism Treatment and to the
Alta Regional Center for a second opinion. On February 29, 1996,
the Alta Regional Center confirmed the diagnosis of autism.”
“Amanda
began an in-home intervention program with Vicki Wells using a discreet
trial format for fifteen hours a week on April 1, 1996. Amanda's
parents funded this program.” In a footnote, the Court explained
that the child received Discrete Trial using the Lovaas approach.
On
April 16, 1996, at an IEP meeting, the parents received copies of
the “Clark County School District's early reports indicating
possible autism. When they finally saw copies of the District's
reports, Amanda's parents learned for the first time that the District
had detected the possibility of autism more than a year previously.
The reports indicating the possible autism diagnosis were not mentioned
in Kenney's two-page summary of Amanda's present levels of educational
performance.”
Several
months later, the local school district began “funding Amanda's
home intervention program.”
“On
June 4, 1997, the IEP team met again and decided that Amanda should
be placed in a regular kindergarten class, with additional individual
speech therapy.”
“Amanda's
parents requested a due process hearing in Nevada on October 24,
1997, to resolve whether Amanda had been correctly identified and
whether she had received a FAPE. A due process hearing was held
March 30-31, 1997.” (sic 1998)
Review
Officer Reverses
“The
Hearing Officer concluded that Amanda had been misidentified as
developmentally delayed and had therefore been denied a FAPE. On
June 28, 1998, the State Review Officer reversed, overturning the
credibility determinations of the HO, concluding that Amanda's parents
had been informed of the tests suggesting a diagnosis of autism.”
Appeals
The
parents appealed to the U. S. District Court and lost. When they
appealed to the Ninth Circuit, they prevailed.
The
Court of Appeals stated that: “We agree that the District violated
the procedural requirements of the IDEA, something that the SRO
and the district court did not consider, by failing to timely disclose
Amanda's records to her parents -- particularly those evaluations
indicating possible autism and suggesting further psychiatric evaluation
was needed. The District's egregious procedural violations denied
Amanda a FAPE.”
“Procedural
violations that interfere with parental participation in the IEP
formulation process undermine the very essence of the IDEA. An IEP
which addresses the unique needs of the child cannot be developed
if those people who are most familiar with the child's needs are
not involved or fully informed.”
“Here,
the HO found that the District did not give Amanda's parents copies
of the psychologist's and speech pathologist's reports finding mixed
results on the autism tests, his recommendation to consider further
psychiatric evaluation, or the speech and language assessment indicating
"extreme autism," all of which should have been disclosed
under the IDEA. Although Amanda's parents did receive the "Summary
of Present Levels of Performance" pursuant to their request
after the initial IEP meeting, this document was merely a paraphrase
of Kenney's report which omitted all reference to autism and to
the recommendation to have a medical evaluation by a psychiatrist.”
“The
first time Amanda's parents saw the reports indicating possible
autism was in April 1996 during an IEP review in Woodland, California,
after the files had been transferred from the District in December
1995. At the due process hearing before the HO, Kenney testified
that, according to his "usual practices," he had considered
Zuckerman's report before writing his own. He also testified that
he told Amanda's mother the results over the phone, including the
possibility that Amanda was autistic. The HO did not believe him,
and found that "[a]pparently Mr. Kenney had no knowledge of
the results of Ms. Zuckerman's speech and language evaluation,"
as his report made no mention of them. This lessened his credibility
in her opinion, as did the fact that another relevant report --
that of the Special Children's Clinic -- was not prepared in time
to be included in his evaluation. Also damaging to Kenney's credibility
was the fact that he testified, incorrectly, that Amanda did not
meet the criteria for autism. On the other hand, the HO found Amanda's
mother to be a credible witness. The HO believed that she never
received reports recommending psychiatric evaluation, for if she
had, she would have followed up immediately. Because we must accord
the credibility determinations of the HO due weight, we conclude
that Amanda's parents were not given copies of the reports indicating
the possibility of autism or the need for further psychiatric evaluation
after requesting them. The hearing officer based her credibility
determination on the live testimony of Mrs. J., Kenney, and several
other people involved in the evaluation process. Hence, they deserve
due weight so long as they are supported by the record. Because
they are so supported, we accept the finding that Amanda's parents
were not given copies of the reports indicating the possibility
of autism or the need for further psychiatric evaluation after requesting
them. Thus, the District was in violation of 20 U.S.C. § 1415(b)(1).”
“This
is a situation where the District had information in its records,
which, if disclosed, would have changed the educational approach
used for Amanda, increasing the amount of individualized speech
therapy and possibly beginning the D.T.T. program much sooner. This
is a particularly troubling violation, where, as here, the parents
had no other source of information available to them. No one will
ever know the extent to which this failure to act upon early detection
of the possibility of autism has seriously impaired Amanda's ability
to fully develop the skills to receive education and to fully participate
as a member of the community.”
“We
hold that, by failing to disclose Amanda's full records to her parents
once they were requested, in violation of 20 U.S.C. § 1415(b)(1),
the District denied Amanda a FAPE. The IEP team could not create
an IEP that addressed Amanda's special needs as an autistic child
without knowing that Amanda was autistic. Even worse, Amanda's parents
were not informed of the possibility that their daughter suffered
from autism -- a disease that benefits from early intensive intervention
-- despite the fact that the district's records contained test results
indicating as much. Not only were Amanda's parents prevented from
participating fully, effectively, and in an informed manner in the
development of Amanda's IEP, they were not even aware that an independent
psychiatric evaluation was recommended, an evaluation that Amanda's
mother testified she would have had performed immediately. These
procedural violations, which prevented Amanda's parents from learning
critical medical information about their child, rendered the accomplishment
of the IDEA's goals -- and the achievement of a FAPE -- impossible.”
Note
from Wrightslaw:
Two years ago, the Ninth Circuit issued another decision against
Clark County in Witte
v. Clark County, a school brutality case.
Links
Decision
in Amanda
J. v. Clark County Sch. Dist. and Nevada Dept of Education
NOTE:
When we formatted the decision in Amanda J v. Clark County Sch.
District, we added hyperlinks to other decisions that were cited
and to relevant portions of the IDEA statute.
For
more information, articles, caselaw and resources about autism and
autistic spectrum disorders, please visit our Autism
page.
