By Salvatore Pizzuro
Guest Columnist

(June 26, 2008) — Autism has become a buzz word in New Jersey that transcends other disabilities that affect children and adults, in terms of its diagnostic and political impact. Over the past two years, several New Jersey State legislators, including Gary Schaer and Joe Roberts, have introduced legislation designed to improve services for children with autism.

Recently, the issue of a proper identification and diagnosis of autism has arisen. A U.S. District Court in Pennsylvania issued a strong decision on this issue in February 2008 on behalf of a child with autism and his mother.

In Tereance D. v. School District of Philadelphia, the court held that a child with autism was misdiagnosed as mentally retarded and emotionally disturbed, thus depriving the child of appropriate FAPE (Free and Appropriate Education) for a period of years. Furthermore, the parent was not made aware of her son’s rights to autism services, extended school year services and details about such services.

The child received early intervention services. However, although a school psychologist recommended that Tereance needed learning support services as part of FAPE, the child was placed in a regular kindergarten, without support. As the child’s behavior over the next year suggested the possibility of autism, no evaluation was conducted. The court’s decision in Tereance D. v School District of Philadelphia suggested that the school district was not compliant with federal law and was predisposed to mislead the parent.

Although the school district moved to dismiss all complaints, the judge refused to dismiss any, finding that:

• The school did not properly evaluate;

• The school’s evaluator was not competent to evaluate a child with autism;

• Teachers of kids with autism did not receive proper training;

• The school evaluator misdiagnosed the child as MR, then as ED, before finally determining that he had an autism spectrum disorder;

• School staff “misrepresented” to the parent the availability of autism support services;

• School staff “misrepresented” to the parent the availability of ESY (”what we have wouldn’t be appropriate for him”);

• Even after finding the child eligible for autism support services, the district dragged their feet, causing delays for years.

The original complaint cited violations of the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act.

The school district also attempted to have the case dismissed by stating that the parent was not the aggrieved party. However, the clear message of this case is that both the parent and the child have independent, enforceable rights. The court cited the U.S. Supreme Court case of Jacob Winkelman v. Parma City Schools, which specified that parents maintain a significant role in the education of their children, and thus have independent, enforceable rights when seeking the appropriate application of FAPE.

The implication that these recent judicial decisions will have for New Jersey cannot be underestimated. Arguably, New Jersey has the highest rate of autism among children across the nation. The level of appropriate services is still being debated. Legal challenges by parents are inevitable. With the strengthening of parental rights, more of these legal challenges will be successful. Accordingly, services for New Jersey’s children with autism must be strengthened, as well.                        

Dr. Sal Pizzuro is a disability policy specialist, learning consultant, transition specialist and parent/family advocate from East Rutherford.