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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

Parents of Autistic Girl Win Appeal by Lisa Kim Bach (from Los Vegas Review-Journal, 08/14/01)

Educating Children with Autism published by National Academy Press (2001)

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.

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