A comprehensive analysis of Applied Behavior Analysis (ABA) litigation trends for students with...

West's Education Law ReporterJanuary 19, 2012

Commentary

*1 A COMPREHENSIVE ANALYSIS OF APPLIED BEHAVIOR ANALYSIS (ABA) LITIGATION TRENDS FORSTUDENTS WITH AUTISM [FNa1]

Janet R. Decker, J.D., Ph.D. [FNaa1]

Copyright 2012 by Thomson Reuters/West – No Claim to Original U.S. Government Works

I. INTRODUCTION

There is no known cure for autism and a palpable fear exists that an increasing number of children are being dia-gnosed with this disability. The research [FN1] indicates that the incidence of autism has “skyrocketed” [FN2] and“grown exponentially.” [FN3] In 2009, the Centers for Disease Control and Prevention (CDC) estimated that 1 out ofevery 110 children was diagnosed with autism in the United States. [FN4] As a policy matter, the growth in autism trans-lates to an increase in the societal costs associated with caring for individuals with autism throughout their lives. In 2006,Ganz estimated that the societal cost to care for an individual with autism over his/her lifetime is 3.2 million dollars[FN5] and, unquestionably, this amount has increased since *2 2006. Effective education for students with autism,however, could alleviate the growing costs.

Without meaningful intervention, individuals with autism may never learn to communicate or become contributingmembers of society. Nevertheless, autism is treatable, and scientifically–based interventions such as Applied BehaviorAnalysis (ABA) are available. Many argue that ABA, albeit controversial, is the leading methodology with substantialempirical research to document its effectiveness. [FN6] However, ABA has its critics who refute these claims and thescientific validity of the studies evaluating ABA. [FN7]

Despite the controversy, ABA is a popular treatment option. Generally speaking, professionals utilize ABA methodo-logy to teach children with autism how to learn and interact with the world around them by “teaching small, measurableunits of behavior systematically;” and initially, teaching often occurs in a one–to–one setting. [FN8] The theory behindABA intervention is based on B.F. Skinner's theories of classical and operant conditioning which are often referred to asBehaviorism or Learning Theory. [FN9] Typical ABA strategies include reinforcement, functional behavior assessment,shaping, discrete–trial teaching, prompting, generalization, incidental teaching, task analysis, and maintenance plans.[FN10] ABA targets behaviors such as “aberrant behaviors, social skills, language, daily living skills, and academicskills.” [FN11]

In 1987, Dr. Ivar Lovaas at the University of California Los Angeles published a landmark study that is cited as thefirst empirical evidence of ABA's effectiveness in teaching students with autism. [FN12] Because of Lovaas' contribu-tions, ABA is also sometimes referred to as “Lovaas therapy.” Lovaas studied three groups of children under the age offour who had autism. He found that 47% of the children receiving intensive ABA intervention were considered indistin-guishable from their peers after mainstreaming into general education classrooms. These children also gained an averageof 37 IQ points. Alternatively, the children in the control groups made few significant improvements and almost none

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© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

were able to participate in regular schooling. Subsequent studies have also documented the effectiveness of *3 ABA. Jac-obson, Mulick and Green found that “[r]esearch indicates that with early, intensive intervention based on the principlesof [ABA], substantial numbers of children with autism...can attain intellectual, academic, communication, social, anddaily living skills within the normal range.” [FN13]

Seligmann explained that ABA techniques “are costly,” “require trained personnel,” and typically “begin in thepreschool years.” [FN14] Weber stated that ABA therapies “may not be as effective as their proponents believe they are,but they are backed by solid evidence of enabling children to make substantial developmental progress.” [FN15] Webercautioned that some schools are skeptical about ABA and “these therapies are quite expensive and require great departurefrom the way schools ordinarily do things.” [FN16] For instance, ABA proponents may recommend 40 hours of interven-tion per week in a home environment with a one–on–one ratio. [FN17] He concluded it is not surprising that districts areresisting parents' requests for ABA. [FN18]

Conflicting viewpoints have led to a substantial body of litigation. The lawsuits often involve contentious battlesbetween school districts and parents. [FN19] The stakes are high, which causes emotions to be justifiably heightened. Forparents, prevailing in an ABA lawsuit could result in their children having the opportunity to make significant learninggains, increase their IQs, and in rare instances become indistinguishable from their peers. [FN20] For schools, winningan ABA case could mean avoiding major modifications and incredible costs. For example, in a 2009 ABA lawsuit, theparents were awarded $307,150 in attorney's fees alone. [FN21] Based on cases like this, ABA lawsuits have beentermed the “most expensive” [FN22] and “most controversial” [FN23] subset of autism–related litigation. Perhaps thisgrowing body of legal cases indicates that the policy surrounding educating students with autism needs to *4 beamended. Yet, researchers have commented that there is a dearth in the research examining autism [FN24] and specific-ally, ABA litigation. [FN25]

The present article intends to extend the existing literature by sharing the findings of a thorough review of the ABAlitigation. Specifically, the author studied every published, substantive ABA case since the enactment of the Individualswith Disabilities Education Act (IDEA) [FN26] until 2009. Through a mixed methods review of these lawsuits, this studyidentified the litigation trends involving students with autism that have emerged. Part II of this article outlines the object-ives of the current study and explains the significance of researching ABA litigation. Next, a detailed review of six pre-vailing autism litigation studies is presented in Part III. The unique mixed methods design of the study is outlined in PartIV. Then, Part V of the article presents the findings gleaned from the ABA case law and provides an analysis of the litig-ation trends.

II. OBJECTIVES OF THE STUDY AND SIGNIFICANCE

The overarching objective of the current study is to identify what trends have emerged in the ABA litigation in-volving students with autism since the enactment of the IDEA. By researching and analyzing this controversial subset oflitigation, policy makers, education attorneys, school leaders, parents, and others should be able to make more–informeddecisions about educating students with autism.

Autism–focused research such as this is in demand, and to understand the urgency, this “complex disorder” must beexplained in greater detail. [FN27] Psychology and medical professionals define autism as one of five related disordersthat are classified as Pervasive Developmental Disorders (PDD). [FN28] These disorders are “characterized by severeand pervasive impairment in several areas of development: reciprocal social interaction skills, communication skills, orthe presence of stereotyped behavior, interests, and activities.” [FN29] The terms “Autism Spectrum Disorder” (ASD) or“on the Spectrum” are often used to describe this group of autism–related disabilities and are commonly used inter-



changeably with the term “autism.” [FN30]

*5 Other professionals such as school personnel and attorneys are typically interested in identifying the type of ser-vices a child with autism is entitled to receive and therefore, may use a legal definition. The federal regulations providingguidance for the IDEA define autism as:

a developmental disability significantly affecting verbal and nonverbal communication and social interaction,generally evident before age 3, which adversely affects a child's educational performance. Other characteristics of-ten associated with autism are engagement in repetitive activities and stereotyped movements, resistance to envir-onmental change or change in daily routines, and unusual responses to sensory experiences. [FN31]

Yet, these medical and legal definitions do not present the whole picture. In order to truly understand the severity ofautism, it is important to examine a broader definition offered by people who are directly affected. Parents and otherswho care for individuals with autism are likely to define the disorder by a variety of behaviors. [FN32] For instance, be-cause a child with autism has difficulty communicating, caregivers may report that the child tantrums or exhibits aggress-ive behavior more often or more extremely than do typical children. In order to illustrate a child's social skill deficits,parents may explain that their child avoids eye contact and does not seek attention from others. Because children withautism have both verbal and nonverbal language deficits, they may not engage in conversation or even speak. Some par-ents describe a general regression. [FN33] One parent explained that her child “began to slip quietly away from us.”[FN34]

Additionally, children with autism are likely to engage in unusual behaviors such as self–stimulatory behaviors suchas hand–flapping, self–injurious behaviors such as head banging, and obsessive behaviors such as perseverating on a spe-cific topic of conversation. Some parents define “autism” as the end to any semblance of normalcy that they once knew.During the early stages after her daughter was diagnosed with autism, one mother wrote, “[W]e are catapulted into a fu-ture that has suddenly become menacing, terrifying.” [FN35]

There is no known cause or cure for this devastating disorder and intense disagreement exists about most aspects ofautism. To illustrate, Paul Offit, a doctor specializing in vaccines, has spoken publicly that he believes vaccines do notcause autism. In response, he has received death threats and been physically assaulted. [FN36] Because of the controver-sial context surrounding autism, there is intense emotion and pressure surrounding these students' education.

The recent and dramatic increase in the number of children diagnosed with autism has had serious consequences inpublic schools. To begin, it has been more than two decades since Congress added autism as a disability in the list of dis-abilities under the IDEA. During 1991–1992, the year after *6 autism was added as one of the disabilities covered by theIDEA, the U.S. Department of Education listed 5,415 students with autism as being educated in U.S. public schools.[FN37] The number of students listed in the ASD category has since drastically increased. Specifically, during the1999–2000 school year, 65,424 students with autism received special education services. [FN38] Yell, Katsiyannis,Drasgow and Herbst calculated this as a 1,108% increase; whereas, during this same timeframe, students classified underall of the IDEA's other disability categories only increased by 26%. [FN39] Yell and Katsiyannis identified that there hasbeen a “concomitant increase in policy and practices, issues and controversies regarding the education of students withautism” during this same time period. [FN40]

As a result, many schools' special education budgets have increased. [FN41] Yet, theses increases in expenditureshave not alleviated concerns about limited resources. The federal government is often blamed because Congress has notprovided adequate funding to assist schools to be able to properly follow the IDEA's mandates that require schools toprovide numerous services and follow complicated procedures. [FN42]



As a result, a substantial amount of special education litigation has ensued and an increasing number of these law-suits involve students with autism. [FN43] The core of many of the disputes is whether the district has provided the stu-dent with a Free Appropriate Public Education (FAPE) as required by the IDEA. The question of whether a student's edu-cation is “appropriate” is a common issue in autism litigation. A vague, but commonly used definition of an appropriateeducation that originates from the U.S. Supreme Court decision Board of Education of the Hendrick Hudson CentralSchool District v. Rowley is one that provides more than access to education, but provides less than the best education.[FN44] The Court held that in order to provide a FAPE, a school must provide instruction that was designed to meet theunique needs of the student. The instruction must be supported with services that allow the student to benefit from the in-struction. The Court clarified that students with disabilities do not have a right to the best possible education or an educa-tion that allows them to achieve their maximum potential. Instead, students are entitled to an education that is“reasonably calculated” to “confer some educational benefit.” [FN45] The Court created a two–*7 part test to determinewhether schools have met their FAPE obligations. The first part asks whether the school has followed IDEA's proced-ures. The second part questions whether the IEP was developed through IDEA's “procedures reasonably calculated to en-able the child to receive educational benefits.” [FN46]

The IDEA defines a FAPE as special education and related services that are: 1) provided at public expense, underpublic supervision, 2) meet the standards outlined by the state, 3) include PK–12 education as outlined by the state, and4) conform with the student's Individualized Education Program (IEP). [FN47] Congress purposely has not providedmore clarity in defining a FAPE because what is considered “appropriate” varies from student to student. [FN48] Thislack of guidance, however, has led to frequent disagreement about whether a FAPE has been met for individual students.The disagreement has resulted in litigation and while the numerous court decisions do provide additional guidance, theonly precedent that must be followed by every state is Rowley.

III. LITERATURE REVIEW

Several researchers [FN49] have documented the dramatic increase in autism litigation, noting that these lawsuits fo-cus on a variety of issues including methodology, [FN50] extended school year services, evaluation, and placement.[FN51] Yet the existing studies are only a beginning; researchers have urged that more scholarly attention is warranted.[FN52] Zirkel welcomed additional case analyses of autism litigation and stated it is “necessary in this increasingly fer-tile field, particularly in light of the high–stakes nature of autism litigation....” [FN53]

One area that researchers have identified as an extremely important subset of autism lawsuits to study is ABA litiga-tion. Choutka, Doloughty and Zirkel stated the ABA case law “has been subjected to insufficient systematic study.”[FN54] Currently, six prevailing autism litigation studies exist that directly discuss ABA litigation. [FN55] These sixstudies were published from 2000–2006 and offer valuable insights for practitioners and policy makers. However, as *8summarized by Table A., the findings of the existing ABA litigation research are inconclusive and illustrate that addi-tional investigation is necessary.

Table A. Existing ABA Litigation Research

School Districts Prevail Most Of-ten

Decisions Evenly Split Parents/Child(ren) PrevailMost Often

Etscheidt (2003): school districts Choutka, et al. (2004): Yell & Drasgow (2000):



prevailed in 57% (39) & decisions were evenly split parents/child(ren) prevailed in76% (34)

parents/child(ren) prevailed in 43% such that the school districts & school districts prevailed in24% (11).

(29) of the autism methodology 44% (30) & parents/child(ren) 49%(33)

cases. were prevailing approximately thesame number of ABA cases.

Nelson & Huefner (2003): schooldistricts prevailed in 79% (15) &

Weber (2006): “A strong trendhas recently emerged” where parentsare

parents/child(ren) prevailed in 21%(4) of the autism methodology cases.

prevailing. Courts may be dimin-ishing the relevance of Rowley.

Seligmann(2005): If it is a questionof an ABA program & another

approach, school districts typicallyprevail. Courts defer to district's meth-odology

In 2000, Yell and Drasgow examined 45 administrative and court decisions relating only to ABA methodology.[FN56] Specifically, the researchers reviewed cases published in the Individuals with Disabilities Education Law Report(IDELR) from 1993–1998. [FN57] They concluded that 76% (34) of the 45 decisions favored the parents.

Yell and Drasgow suggested that ABA cases “should not be a legal problem” because the courts have held that de-cisions about educational methodology are left to the school system. [FN58] However, they noted that parents have beensuccessful in “winning in the vast majority” of ABA cases. [FN59] The researchers explained the disconnect by stating,“These cases clearly involve much more than questions of educational methodology. In fact, they involve determiningthe essence of a FAPE because they directly address the meaning of ‘educational benefit.’ ” [FN60]

The authors opined that schools may have lost ABA cases because they failed to document students' progress. [FN61]Further, when the schools hired expert witnesses to support their positions, they were more likely to prevail. In sum, Yelland Drasgow stated that judges and hearing officers were holding school districts to a higher standard in providing aFAPE to students with autism. [FN62] Essentially, the judicial officers were stressing “meaningful” educational benefits.[FN63] The emphasis has gone from “access” to “quality.” [FN64]

In 2003, Nelson and Huefner conducted a study similar to Yell and Drasgow, but unlike Yell and Drasgow, Nelsonand Huefner did not include *9 administrative decisions in their data set. The authors reasoned federal court cases “have



more precedential value than administrative hearings and indicate what standards are actually being employed in federalcourt.” [FN65] The researchers used an electronic legal database to locate 19 cases decided from 1997–2002. [FN66]

Contrary to Yell and Drasgow's finding that 76% of the ABA decisions favored the parents, Nelson and Huefner con-cluded that parents only prevailed in 21% (4) of the 19 cases. Nelson and Huefner found that one determinative factor ofwhether the districts prevailed was whether the case involved a dispute of two competing methodologies. If the casehinged on whether ABA or another prevailing methodology, TEACCH, [FN67] should be implemented, the courts“declined to decide whether [ABA] or TEACCH–like methods would be more effective for the student involved.”[FN68] If the courts held that the school's IEP provided a FAPE, then the courts refrained from interfering with theschool district's choice of methodology. When the parents prevailed it was because the districts could not explain whythey had chosen their methodology or when serious procedural errors existed. Nelson and Huefner generalized that courtsare allowing educators to dictate methodology as long as their programs meet the requirements outlined by Rowley.[FN69] The researchers concluded that autism programs must be “research–based” and “adhere to the spirit of the IDEA[such that they] are built in partnership with families....” [FN70]

Also in 2003, Etscheidt conducted a study similar to Nelson and Huefner's study, but she was interested in autismmethodology cases in general, not just ABA cases. Like previous researchers, she reviewed administrative due processhearings as well as state and federal court decisions that were published in IDELR. Her timeframe was from 1997–2002,which included 68 autism methodology cases. [FN71]

Etscheidt found that the school district prevailed in 57% (39) of the cases and parents prevailed in 43% (29). [FN72]She theorized that the factors influencing the court decisions about the adequacy of the IEPs included: 1) “whether theproposed IEP program goals were consistent with evaluation data,” 2) “whether the IEP members were qualified to de-termine appropriate programs for students with autism,” and 3) “whether the methodology of the IEP was reasonablytailored to accomplish the goals of the IEP.” [FN73] In regards to the third factor, Etscheidt concluded that the par-ent–preferred program was only examined if the school's program was deemed inappropriate. [FN74]

*10 In 2004, Choutka et al. conducted a study that was unlike previous studies because it was “an empirical analysisof a comprehensive sample of pertinent hearing/review officer and court decisions.” [FN75] The researchers criticizedthree previous related studies [FN76] because the former studies did not review a comprehensive collection of cases anddid not “ provid[e] a systematic or complete analysis” of the decisions. [FN77] Thus, Choutka et al. proposed to remedythe design errors of the previous studies by examining the “ABA/DTT/Lovaas cases” [FN78] published in the Educationfor Handicapped Law Report (EHLR) and Individuals with Disabilities Education Law Report IDELR from 1978–2001.[FN79] They reviewed certain ABA cases and administrative decisions involving program selection and implementation.[FN80] In order to determine the overall outcome, Choutka et al. used a Likert–scale adapted from Lupini and Zirkel[FN81] in which 1 signified “complete win for the parents” and 7 signified “complete win for the school authorities.”[FN82] By rating the decision on a 7–point scale, the researchers stated it improved the validity of the results. [FN83]

In contrast to the previous researchers, Choutka et al. concluded that the decisions were evenly split such that theschools and parents were 'winning' approximately the same number of cases. The researchers attributed the “50–50” oddsto the “individualized, ‘it depends' nature of IDEA.” [FN84] Specifically, when the program selection and implementa-tion cases were combined, parents prevailed in 48% (33) of the cases, schools prevailed in 44% (30) of *11 the cases,and 7% (5) of the cases were deemed to yield inconclusive results. [FN85] The overall outcome code averaged to be3.95. [FN86]

The researchers stated the difference in the outcomes was a result of four factors: 1) witness testimony; 2) elements



of the IEP; 3) other procedural requirements; and 4) data illustrating progress. [FN87] Choutka et al. suggested that fu-ture studies investigate “deference” that the appellate courts give to the lower court decisions. [FN88] Thus, they con-cluded, “this analysis constitutes a significant start rather than a conclusive end for autism methodology litigation” re-search. [FN89]

Although Seligmann and Weber authored two distinct law review articles, they are discussed together because Weberwas providing commentary based on Seligmann's article. [FN90] One clear difference between the two articles is that Se-ligmann concluded that parents generally lose ABA cases due to the courts' deference to school districts' choice of meth-odology. However, Weber mentioned that the trend that districts are prevailing may have shifted because courts may bediminishing the relevance of Rowley.

In her 2005 article, Seligmann provided a legal analysis of the ABA case law. [FN91] In particular, she explainedthat courts usually analyze ABA cases under the Rowley standard because they view them as methodology cases. Yet, bydoing so, courts may be offering too much deference to school district's discretion.

Seligmann noted that “the courts are far less comfortable weighing in on competing educational perspectives thanthey are reviewing the procedural compliance....” [FN92] Because of the increase in autism methodology litigation,courts “have had to sort out legal questions from educational debates, and distinguish when a dispute invokes educationalappropriateness (which is their role to review) as opposed to a choice among differing educational approaches (which isnot).” [FN93] Seligmann urged that due to the unchartered territory of these cases that “better standards than thosegleaned from Rowley may be needed.” [FN94]

*12 To illustrate how courts are handling ABA methodology litigation, Seligmann analyzed Lt. T.B. v. WarwickSchool Committee. [FN95] T.B.'s parents were seeking an ABA program for their son with autism and challenged theschool district's IEP even though the district provided a TEACCH program and significant one–on–one behavioral in-struction. Seligmann concluded that many times these cases are resolved on procedural grounds or a finding that the IEPwas inappropriate; however, when courts do evaluate the school's program, they invoke the Rowley standard and typic-ally defer to the district. [FN96] She criticized that the IDEA, Rowley, nor any Circuit court “has offered a rubric for acourt to assess the soundness of an approach.” [FN97]

Based on her analysis of the case law, Seligmann offered several lessons for schools and parents when developingIEPs for students with autism and warned that the appellate courts should not offer too much deference to the adminis-trative hearing officers. [FN98] She stated, “Hazards lie in allowing deference to turn to blind acceptance.” [FN99]

In 2006, Weber discussed Seligmann's article, but first he discussed the general legal trends in ABA litigation. He ex-plained that in the beginning of ABA litigation, courts favored the school districts. [FN100]Even if the courts found theABA program was superior to what the school was offering, the courts determined that educational methodology de-cisions were left to the schools to make. Further, courts would stress that schools merely needed to provide an adequateeducation. Weber noted that more recently there has been a judicial trend favoring parents. Specifically, he stated,“Remarkably, over the last two years, five federal circuit courts of appeal decisions have either directly or indirectly sup-ported parents‘ demands for [ABA] programs.” [FN101]

Weber agreed with Seligmann's analysis that Rowley's influence may have shifted. [FN102] Seligmann determinedthat courts that apply the Rowley some–educational–benefit standard and defer to school districts are less likely to up-hold parents' requests. [FN103] Yet, if courts decide for the parents, they try to diminish Rowley's relevance. [FN104]Weber proposed that parents can also succeed by focusing on the Least Restrictive Environment (LRE) requirement un-der the IDEA. [FN105] In L.B. v. Nebo School District, the court held for the parents reasoning that the home–based



ABA programming would allow the student to *13 succeed in preschool. [FN106] The test applied by the court was notabout educational progress, but instead whether the ABA would allow the child to have success in a mainstreamed edu-cational setting. The court determined the ABA was a supplemental service needed to support the child's mainstreamedplacement. [FN107] Although Weber noted he was unsure how typical a case like Nebo is, it may signify a new directionin ABA cases where the focus may shift toward the LRE.

After reviewing these six ABA litigation studies, it is evident that more investigation is warranted. It is unclearwhether parents/child(ren) or school districts are prevailing more often in cases focused on ABA methodology. Further,the body of relevant case law has grown since these studies were completed and thus, the litigation trends should be up-dated. Yet, as illustrated by the previous studies, when researchers analyze different samples of the cases, the results arebound to differ. The present research, therefore, contributes to the existing literature by providing an updated review ofthe ABA litigation by using a study design that captures a novel sample of the ABA case law.

IV. STUDY DESIGN

The current researcher [FN108] designed a uniquely comprehensive mixed methods review of all the published, sub-stantive ABA judicial decisions. Previous researchers examining autism–related litigation typically did not label theirstudy design as employing quantitative, qualitative, or legal research methods. However, the past studies appear toprimarily employ either a quantitative analysis geared toward an education audience or a legal analysis written for a legalaudience. The current study employed quantitative, qualitative and legal methods and wrote for both audiences.

Stefkovich and Torres utilized mixed methodologies and stated that the practice is “strongly supported by the educa-tion law community.” [FN109] According to Schimmel, “Rarely do researchers combine several methods that would en-able them to approach topics from multiple perspectives and with added depth and texture.” [FN110] Baldwin and Ferronagreed that a mixed methods design is advantageous by stating, “No one method alone can provide the informationneeded for decision making. Several methods combined, however, can produce a stronger decision and course of action.”[FN111] Russo added that the value of using multiple methods in educational law research is to *14 obtain a clearer fo-cus and more solutions. [FN112] Kromrey, Onwuegbuzie, and Hogarty explained that mixed methods “has yet to per-meate the field of legal research,” but can “improve the quality of legal research.” [FN113]

In the current study, the researcher incorporated quantitative methods such as descriptive statistics and disaggrega-tion [FN114] and qualitative methods such as coding and extracting themes [FN115] from the case law while attending toimportant legal constraints such as precedent and jurisdiction. [FN116] However, these quantitative, qualitative, and leg-al research methods should not necessarily be considered divergent from one another. In fact, a legal analysis may utilizeboth quantitative and qualitative techniques. According to McCarthy, legal research shares some similarities with othertypes of research because “often a hypothesis is chosen and evidence is gathered to prove or disprove the hypothesis.”[FN117] To illustrate, when legal scholars wish to identify litigation trends, they may code and count a certain type ofcase. Coding is typically classified as a qualitative method and measuring such as counting is typically considered aquantitative method.

According to Hollander, legal research entails “doctrinal legal scholarship” that can be compared to historical re-search. [FN118] The comparison is drawn because like historical research, legal analysis often calls on a researcher tosynthesize trends in the law. Both legal and historical scholars often develop arguments based upon these trends. Histor-ical research like legal research employs quantitative and qualitative techniques in gathering and analyzing data. Manylegal scholars resist classifying legal analysis as quantitative or qualitative, but instead they may describe it as a form of“historical–legal research.” [FN119] As stated by Kromrey et al., it is more productive to think of research



as continua rather than dualisms. The realization that individual studies may incorporate aspects of both qual-itative and quantitative methods gives rise to mixed methods of inquiry and coherent approaches that combine de-sirable aspects of multiple approaches to empirical study. Such blended methods build on the strengths of the indi-vidual components, creating a composite that yields more information and higher–quality information than wouldbe obtained through inquiry rooted in a single approach. [FN120]

*15 Thus, the current study design employed quantitative, qualitative, and legal methods, but the three methodsshould not necessarily be viewed as distinct from one another. Instead, they should be considered along the continuum ofmethods used in empirical study in order to identify more descriptive findings. [FN121]

In addition to applying mixed methods, the research design attended to the methodological strengths and limitationsof past research. Specifically, some of the past research did not disaggregate based on a) geographic region; [FN122] b)administrative decisions from court decisions; [FN123] or c) procedural versus substantive issues. [FN124] Moreover,some of the researchers did not focus on precedential [FN125] and jurisdictional [FN126] constraints, or the significanceof the facts. [FN127] Therefore, the current study attended to these aspects. In particular, the data set did not include pro-cedural claims because those are often straight–forward decisions where a procedural error has been made; whereas, sub-stantive claims force courts to apply Rowley's vague definition of a FAPE to the new genre of ABA cases. Even thoughRowley was decided approximately thirty years ago, courts continue to struggle with applying Rowley to theever–evolving fact patterns, which is why the current study isolated the substantive claims to review. Additionally, onlypublished cases were included in the sample because unpublished opinions are not considered as having a binding pre-cedential effect. [FN128]

Specifically, the researcher collected, read, coded, and identified themes from all the substantive ABA case law thatwas published from 1975 to 2009. An initial Westlaw and LexisNexis search yielded a total of 160 cases. However, thecases were reviewed and Key Cited [FN129] and if a case was unpublished, no longer good law, irrelevant, only proced-ural in nature, not focused on the LRE and/or FAPE requirements, or appealed, then it was excluded. Thirty–nine casesremained which the researcher read carefully, and entered detailed information about each case onto a spreadsheet.[FN130] From *16 that data, findings emerged. When analyzing all of the findings collectively, litigation trends wereidentified.

The study design has limitations as well as strengths. As for limitations, the sample is relatively small and is notidentical to the previous ABA litigation research samples. Further, because it includes only published, judicial decisionsfocused on substantive issues, the sample may not be representative of all ABA litigation. While it is beneficial to disag-gregate this subset from the larger sample, [FN131] there is much more ABA litigation occurring at the administrativelevel. Additionally, many disputes were not included in the data set because they were unpublished or settled outside of acourt.

At the same time, the current researcher attempted to gather a thorough body of information about the cases. Whenthe current study is compared with the past literature, it appears that the current study is an extremely comprehensive re-view of the ABA litigation. [FN132] Further, efforts were made to replicate aspects of the methodology of previous stud-ies. For instance, Choutka et al.'s Likert–scale outcome coding was used in the current study. [FN133] Although the cur-rent study did not use the exact same data set as previous studies and its results are not exactly the same as previous stud-ies, it extends the past research by applying quantitative, qualitative, and legal research methods to produce detailed find-ings and analysis.

V. FINDINGS AND ANALYSIS



A. Findings

A variety of interesting findings emerged after coding the thirty–nine ABA lawsuits. Contrary to the conclusionsmade by past researchers, [FN134] there does not appear to be a sharp increase in the ABA litigation as illustrated byChart A. Although more cases have been decided recently (i.e., from 2003–2009), there does not appear to be a drasticincline in the ABA case law. Worded differently, the rate of published ABA litigation pertaining to substantive issues hasremained fairly constant over the past decade.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE*17 Overall, school districts prevailed most often. More than half (61%, 24) of the 39 courts held for the school dis-

trict; approximately one quarter (26%, 10) of the courts held for the parents/child(ren); and the remaining 13% (5) of thecourts reached inconclusive results. Thirteen percent (5) of the 39 cases were deemed inconclusive because they wereeither open/settled (40%, 2) or remanded to the lower court and the final decision was unavailable (60%, 3). Yet, whenthe sample was disaggregated into recent and older cases, more parents/child(ren) prevailed recently, but prevailed lessthan school districts overall. [FN135]

Outcome coding made it possible to determine that although schools prevailed most often, they did not prevail con-clusively. Choutka et al. explained that classifying prevailing party by only assigning a dichotomous prevailing partyversus non–prevailing party label, is problematic because courts' decisions are often more complicated in awarding relief.Therefore, these researchers determined prevailing party in a manner that would “[reflect] multiple issues and varyingdispositions.” [FN136] Specifically, Choutka et al. utilized outcome codes based on a seven–point Likert–scale to de-scribe to what extent a party prevailed. The current study assigned Choutka et al.'s Likert–scale outcome codes to the 39cases in the data set. Overall, the outcome codes ranged from “1: Parents/child(ren) complete win” to “7: complete winfor school authorities.”

Next, the cases were disaggregated by prevailing party; for any case with an outcome code of 6 or 7, the researcherdetermined that the school district prevailed. [FN137] For any case with an outcome code of 1 or 2, it was consideredthat the parents/child(ren) prevailed. The remaining cases with an outcome code of 3, 4, or 5 were deemed“inconclusive.” The average outcome code for the 39 cases was 5.08, which only slightly favors the school districts over-all. When the cases were disaggregated by older cases (1996–2002) and recent cases (2003–2009), the average outcomecodes were 5.63 and 4.7, *18 respectively. Again based on the outcome code data, it appears that parents/child(ren) pre-vailed in the ABA published litigation with greater frequency in 2003–2009 than they did in 1996–2002. The outcomecoding helped discern that with an average outcome code of 5.08, as opposed to an average of 6 or higher, the extent thatthe school districts are prevailing in the published ABA litigation overall is not conclusive. [FN138]

Many findings in addition to the results about prevailing party emerged, but are too lengthy to include in this discus-sion. [FN139] However, additional findings that align with the study's analysis are discussed in the next section.

B. ANALYSIS

In isolation, the findings fail to provide a general analysis of what key ABA litigation trends have occurred from1975 to 2009. Yet, when reviewed collectively, the researcher was able to extract six themes from the findings.

1. Deference was a key determinant in cases.

The current study found that Rowley's insistence on deferring to school personnel and administrative decisions has re-



mained a major theme in the courts' rationales. As mentioned previously, Seligmann critiqued courts for placing toomuch deference on prior decision–makers. [FN140] In the current data set, it was rare that a court deciding an ABA casefailed to mention deference in its opinion. For example, the court in J.A. v. East Ramapo Central School District ex-plained, “The precise allocation of behavior therapy hours between 1:1 and group and between home and school is thetype of educational judgment that is entitled to deference....[This court] must not engage in Monday–morning quarter-backing.... ” [FN141] Thus, the current researcher shares Seligmann's conclusion that deference was an influential de-terminant. [FN142]

At the same time, if a school district did not support ABA intervention or if a hearing or review officer decided in fa-vor of the district, then it was still possible for parents/child(ren) to prevail. In fact, this study found that parents/child(ren) prevailed in 26% (10) of the cases despite the deference given to the schools and administrative decisions. Fur-thermore, this study found that only a slight majority of the cases (53%, 18) were never reversed. [FN143] Thus, defer-ence to the administrative decision was not absolute because there were still a considerable number of cases (47%, 16)that were reversed by a higher court. In other words, it does not appear that the district and circuit courts are simply rub-ber–stamping the decisions of all of the administrative decision–makers.

*19 2. ABA litigation has not conclusively advanced FAPE to a higher level.

Yell and Drasgow claimed that the ABA case law “had advanced FAPE to a higher level by stressing ‘meaningful’educational benefits.” [FN144] The researchers contended that the “definition of FAPE has shifted from an emphasis onaccess to an emphasis on quality.” [FN145] They warned school districts would be held to a higher standard because the“FAPE standard has evolved.” [FN146] To the contrary, based on all of the cases reviewed in the current study, the re-searcher did not share in Yell and Drasgow's conclusion.

On one hand, a few cases did seem to focus on how much benefit the school district's program was providing to stu-dents. To illustrate, in T.H. v. Board of Education of Palatine Community Consolidated School District, the NorthernDistrict Court of Illinois was concerned not simply with access, but also with quality of education. It was not impressedwith the district's “vague, generalized, non–specific, eclectic, child–led approach to educating autistic children.” [FN147]The court held for the parents/child, and clarified it was

not ordering the School District to groom [the child] to become an Olympic swimming champion. The goal isnot to have [the child] sitting on the 'steps 'of the pool. Nor is it to have [the child] drown in the deep end becausehe was thrown into that environment before he was ready to do so. [The decision for the parents/child was] 'reason-ably calculated' to provide [the child] with a meaningful opportunity to achieve some measure of success 'swim-ming' with typically developed children. [FN148]

Another case in which the court did not focus on the “basic floor of opportunity” standard from Rowley [FN149] wasa case that Weber identified. [FN150] In L.B. ex rel. K.B. v. Nebo School District, the Tenth Circuit Court of Appeals fo-cused not necessarily on a heightened FAPE standard, but instead took a different approach. [FN151] The court held thatthe parents were entitled to 35–40 hours of ABA intervention per week at home so that the student could be successfullymainstreamed in the future. Thus, the focus was not on the standard of educational benefit, but instead on the ability toachieve a placement that was less restrictive. Weber questioned whether future courts would analyze the appropriatenessof a child's education in future ABA litigation by questioning whether the child received an education in the LRE insteadof purely looking to Rowley's some–educational–benefit standard.

The current study did not find any cases other than Nebo School District that defined a FAPE based on whether theprogram would allow the child to progress eventually into a less restrictive environment. In fact, the majority of the court



opinions reviewed involved courts emphasizing that the school's program only needed to provide some educational bene-fit. Thus, they primarily applied Rowley's original FAPE standard and not a heightened standard focused on the quality ofthe education.

*20 For example, some courts stressed that providing a FAPE was simply about allowing access. In W.S. ex rel. C.S.v. Rye City School District, the Southern District Court of New York cited the precedent holding that the IDEA only re-quires schools “to open the door of public education to handicapped children on appropriate terms,” not “to guaranteeany particular level of education once inside.” [FN152] The court eventually held for the school district stating that “onlyif the parents prove that the IEP confers no educational benefit will a court go on to consider the other Burlingtonfactors.” [FN153] This court did not stress meaningful benefit as the standard, but rather mentioned no benefit.

In another case where the district prevailed, K.S. ex rel. P.S. v. Fremont Unified School District, the court appeared tolack high expectations for the amount of progress the child could make. The court opined, “slow progress, however, isnot necessarily indicative that plaintiff did not receive a FAPE, especially in light of the substantial evidence in the re-cord concerning plaintiff's autism and cognitive impairments.” [FN154] Thus, unlike the conclusion of Yell andDrasgow, the current data set did not demonstrate that the FAPE standard has been heightened as a result of the recentABA litigation. [FN155]

3. Despite the pro–school district findings, the pendulum may be shifting toward more parents/child(ren) prevail-ing.

Although the current study did not find that parents/child(ren) prevailed in more cases than school districts in recentyears (i.e., 2003–2009), the findings do indicate that parents/child(ren) have prevailed more recently than previously(i.e., 1996–2002). Further, because the average outcome code was 5.08 on a 7–point scale, in which 1 indicated a com-plete win for the parents/child(ren) and 7 indicated a complete win for the school district, it cannot be concluded thatschool districts are conclusively prevailing. [FN156] In support of this proposition, many of the past researchers foundschool districts prevailed even less often than the current study determined. For example, the two studies in which thesame Likert–scale outcome codes were employed found that the average outcome code was 4.81 [FN157] and 3.98,[FN158] which are averages that favor the parents/child(ren) even more than the current study's average of 5.08. Addi-tionally, whereas the current study found that school districts prevailed in 61% of the cases, Choutka et al. [FN159]found that *21 school districts prevailed in 44% of the cases and Yell and Drasgow [FN160] found that school districtsprevailed in only 24% of the litigation. Additionally, Weber believed there was a “strong trend” emerging recently whereparents were prevailing. [FN161] Although the samples are different among these studies and the current research, it ismeaningful that these previous researchers found districts prevailing less often than the current researcher. Furthermore,if the unpublished and administrative decisions are added to the sample, it is probable that parents/ child(ren) may haveprevailed more often than the current study reported.

In support of the notion that parents/child(ren) may be gaining momentum, the current research also identified thatschools are providing ABA intervention more often in recent years. In fact, more of the recent cases involved situationswhere the school was already offering ABA intervention, but the parent was requesting more hours of ABA intervention.[FN162] Approximately 40% (15) of the current study's cases discussed a school program that included some ABA com-ponent. [FN163] For example, in two 2009 cases, the school district was already providing 10 hours per week of ABA.[FN164] Additionally, 31% (12) of the current cases involved situations where the school district had previouslyprovided some form of ABA and then removed or reduced the number of hours. [FN165] In the older litigation, theschools were not offering ABA and the parents were requesting any amount of ABA intervention.



Schools appear to be providing more ABA recently, which could indicate that the past ABA litigation may have in-creased the school districts' willingness to offer more ABA. Perhaps school districts are trying to avoid litigation as wasmentioned in two 2009 cases, [FN166] or perhaps school districts have identified the merits of this type of intervention,as was also discussed in a few cases reviewed.

4. Parents are likely to continue to file ABA litigation, which has the potential to be tremendously expensive forschool districts.

Primarily, this conclusion is drawn because the current study identified that ABA litigation has been pervasive andconstant for more than a decade. ABA litigation has been pervasive since 1996. It has occurred in almost half of thestates, nearly all of the federal circuits, approximately one–fourth of the federal district courts, and in every U.S. Censusregion. [FN167] School districts in every region of the country appear to be vulnerable to ABA lawsuits.

*22 Secondly, the published ABA litigation at the federal and state court levels has remained fairly constant since1999. [FN168] Despite the past research claiming that ABA litigation is the “fastest growing” special education litiga-tion, [FN169] the current researcher determined that the subset of ABA litigation that she studied has actually remainedfairly constant for the past decade. There has been more ABA litigation in recent years, but not a tremendous amountmore and when the rates were measured across time, they remained quite stable. [FN170] That being said, this study onlyevaluated a smaller subset of cases; therefore, it is possible that when unpublished and administrative decisions are addedto the sample, a conclusion could be made that ABA litigation is on the rise.

Nevertheless, school professionals should not be overly confident that, because school districts have prevailed inmore cases than parents/child(ren), they are immune from legal challenges. The data from this study illustrate that par-ents do not appear to be retreating in their attempts to have ABA intervention funded by public schools. Schools shouldbe concerned about this litigation trend because ABA litigation has resulted in very expensive relief for parents. As seenin the findings of the current study, when parents/child(ren) prevail, the cost of relief could be incredibly high. For ex-ample, some parents/child(ren) were awarded private school tuition or 40 hours per week of ABA intervention. Thehighest dollar figure request was for $88,000 [FN171] and when parents/child(ren) were the prevailing party, there wereoften attorney's fees and other relief awarded. [FN172]

Furthermore, schools and parents alike should not assume they will fare better based on the jurisdiction in which theyare located. The current study found that no jurisdiction truly held in favor of one party more than the other. [FN173]

*23 5. ABA litigation is not simply a battle of preferred methodology; parents appear to be filing ABA lawsuits onbehalf of very young children whom schools are placing in self–contained classrooms.

In the past, researchers have classified ABA lawsuits as disputes about a preference in methodology. [FN174] Yet,the current study confirms Yell and Drasgow's conclusion that ABA litigation involves much more than simply battlesabout competing choices of methodology. [FN175]

Although TEACCH has been discussed as the competing methodology with ABA intervention in some of the past lit-erature, [FN176] it was only discussed in 15% (6) of the 39 cases. Therefore, it does not appear that preference aboutmethodology is the foremost issue in the majority of ABA cases. Instead, the arguments hinged on whether the child wasprovided a FAPE by the school district and if not, whether the parents' request for ABA intervention would provide aFAPE. The parents' claims were not simply about requesting that their children be provided with a specific type of teach-



ing; they were requesting that their children receive an individualized education which incorporated ABA methods.

In addition to FAPE being at the center of parents' lawsuits, most of the students were young and had been placed inself–contained classrooms. The researcher found that 85% (39) of the 46 children involved in these cases werepreschoolers, kindergarteners, or first graders. [FN177] Thus, it follows that the parents who are primarily unsatisfied arethe parents of very young children. In fact, only one student was older than seventh grade when the parents requested adue process hearing. This study did not uncover why these parents are more discontent than parents of older children.However, based on the literature reviewed about the empirical studies that document the importance of early interventionfor children with autism, [FN178] it would make sense that these parents are most desperate for intensive and effectivetreatment for their children. Further, because some children have been known to become indistinguishable from theirpeers after receiving intensive ABA intervention as very young children, [FN179] it follows that parents of very youngchildren would be those who are most motivated to file litigation to attempt to receive these services for their children.

Additionally, the majority of these cases reviewed revealed that the school districts' chosen placement for studentswith autism was in self–contained classrooms. In fact, of the cases where the type of placement was known, 62% (24) ofthe 39 districts were offering a self–contained classroom for the child with autism. It is valuable to identify parental char-acteristics beyond their preference for ABA methodology. For example, it is possible that administrators, attorneys, re-searchers, parents, and policy makers could *24 reduce the prevalence of ABA litigation by strategically ensuring thatyoung children with autism who are placed in self–contained classrooms receive a FAPE.

6. A future trend in ABA litigation may be for parents to file class action claims.

In the current sample of ABA litigation, class action lawsuits were mentioned three times. When this fact is com-bined with many other findings that could potentially persuade parents to file class action claims, then it is possible thatclass action lawsuits could be a litigation trend in the future.

Courts permitted two of the cases to go forward as class action lawsuits and both occurred in 2007 which could signalthat filing this type of lawsuit is an emerging trend. [FN180] In S.W. v. Warren, the Southern District Court of New Yorkdetermined the plaintiffs were permitted to bring a class action based on their complaints. The court reasoned,“individual remedies would be insufficient to address the defendants‘ failure to provide the service required by theIDEA....” [FN181] The school district motioned to dismiss based on its claim that the plaintiffs had failed to exhaust itsadministrative remedies. However, the court rebutted that the issue was about a systemic policy and held that “a hearingofficer could not offer a remedy, and therefore it would be futile for them to exhaust their administrative remedies.”[FN182] The court also explained that “the number of claims might not be handled expeditiously and effectively.”[FN183]

In a third case, the court denied the parents' motion for leave to amend to file a class action complaint, but confirmedthat the facts giving rise to the litigation were appropriate for class action treatment. [FN184] In L.M.P. ex rel. E.P. v.School Board of Broward County, the Southern District Court of Florida denied the school district's motion to dismissthe class action and stated, “There is little dispute that claims of generalized violations of the IDEA lend themselves wellto class action treatment.” [FN185]

Since many of the parents filing ABA litigation have attorneys, witnesses, and service providers in common [FN186]and would therefore have some potential encouragement to pursue class action lawsuits, it may be likely that an increas-ing number of class action ABA lawsuits are filed. Further, since the prevalence of autism is increasing, parents mayidentify that they have more power in numbers. Many of the cases reviewed for this study involved cases where systemic



problems were alleged to exist. For instance, some parents complained of a lack of ABA service providers available inthe district. Other parents argued that the school districts had a blanket policy to *25 not fund ABA based on its expensewithout taking the individual children's needs into consideration. Thus, some of the parents' previous claims may be ap-propriate for class action treatment and parent advocates may encourage this course of action in the future.

VI. CONCLUSION

In conclusion, this study aimed to identify the litigation trends involving students with autism that have emergedsince the enactment of the IDEA. The researcher employed a comprehensive mixed methods review of all the published,substantive ABA litigation from 1975 to 2009.

On one hand, the findings of the current study may be considered positive news for school district administrators whomay be concerned about parents filing expensive ABA lawsuits. First, there has not been a dramatic increase in the pre-valence of ABA litigation as past studies have indicated, [FN187] but instead, the number of lawsuits filed has remainedfairly constant from 1999 to 2009. The current study also found that school districts prevailed most often. Further, thistype of lawsuit has not advanced courts' definition of FAPE to a higher level and courts continue to give deference toschool districts' and lower courts' decisions.

On the other hand, school administrators and attorneys should be aware that parents are likely to continue filing ex-pensive ABA lawsuits and the pendulum may be shifting toward more parents/child(ren) prevailing. Yet, importantly,those who are concerned about educating the increasing number of children diagnosed with autism are likely to be inter-ested in determining more than which party prevailed most often. For instance, the researcher concluded that the casesinvolved more than simply a disagreement about preference of methodology. The majority of the parents filing ABAlawsuits were parents of young children who had been placed in self–contained classrooms. Thus, it may follow that ad-ministrators, attorneys, researchers, parents, and policy makers should increase their efforts to identify what should bedone to ensure young children who have been placed in self–contained classrooms are receiving a FAPE.

The current study expands on past research findings and it offers a novel study design. It offers insights into howABA litigation is evolving. Hopefully, the findings will be analyzed to reduce ABA lawsuits altogether.

[FNa1] The views expressed are those of the authors and do not necessarily reflect the views of the publisher. Cite as 274Ed.Law Rep. [1] (January 19, 2012).

[FNaa1]. Dr. Decker is an Assistant Professor at University of Cincinnati. She may be contacted at [email protected]. This article discusses one of her dissertation research questions. Dr. Decker would like to thank Suzanne E. Eckes(Chair), Martha M. McCarthy, Samantha M. Paredes Scribner, and Amy G. Applegate at Indiana University for their dir-ection on her dissertation, Reducing ABA Litigation through Autism–centric Charter Schools: Legally Viable or Vulner-able? (ProQuest LLC, 2010). Additionally, she would like to thank John Decker, Carol Rumple, and Leslie Gerstman fortheir exceptional editing of this article.

[FN1]. Mitchell L. Yell, Antonis Katsiyannis, Erik Drasgow, & Maria Herbst, Developing Legally Correct and Edu-cationally Appropriate Programs for Students with Autism Spectrum Disorders, 18 FOCUS ON AUTISM & OTHERDEVELOPMENTAL DISABILITIES 182, 186–87 (2003) [hereinafter Yell et al., Developing Legally Correct]; MitchellL. Yell & Erik Drasgow, Litigating a Free Appropriate Public Education: The Lovaas Hearings and Cases, 33 J. SPE-CIAL EDUC. 205 (2000) [hereinafter Yell & Drasgow, Litigating a Free]; Perry A. Zirkel, The Autism Case Law: Ad-



ministrative and Judicial Rulings, 17 FOCUS ON AUTISM & OTHER DEVELOPMENTAL DISABILITIES 84 (2002).

[FN2]. Mark C. Weber, Reflections on the New Individuals with Disabilities Education Improvement Act, 8 FLA L. REV.7, 45 (2006).

[FN3]. Eve Muller, State Approaches to Serving Students with Autism Spectrum Disorders, INFORUM (December,2006), available at http:// www.project forum. org/docs /State Approaches toServing Students withAutism Spectrum Dis-orders .pdf.

[FN4]. Centers for Disease Control and Prevention, Prevalence of Autism Spectrum Disorders—Autism and Develop-mental Disabilities Monitoring Network, Six Sites, United States, 2006, SURVEILLANCE SUMMARIES, (December18, 2009), available at ftp:// ftp.cdc. gov/pub /publications /mmwr/ ss/SS5810 .pdf.

[FN5]. Michael Ganz, The Costs of Autism, in UNDERSTANDING AUTISM: FROM BASIC NEUROSCIENCE TOTREATMENT (Steven O. Moldin & John L. R. Rubenstein eds., 2006).

[FN6]. O. Ivar Lovaas, Behavioral Treatment and Normal Educational and Intellectual Functioning in Young AutisticChildren, 55 J. CONSULTING & CLINICAL PSYCHOLOGY 3 (1987); Greg MacDuff, Patricia Krantz, & Lynn Mc-Clannahan, Treating Children with Autism to Use Pictographic Activity Schedules: Maintenance and Generalization ofComplex Response Chains, 26 J. APPLIED BEHAV. ANALYSIS 89 (1993).

[FN7]. See L. Juane Heflin & Richard Simpson, Interventions for Children and Youth with Autism: Prudent Choices in aWorld of Exaggerated Claims and Empty Promises. Part I: Intervention and Treatment Option Review, 13 FOCUS ONAUTISM & OTHER DEVELOPMENTAL DISABILITIES 194 (1998); Michael McMahon, School Districts Feel Pres-sure from Requests for Lovaas, 11 SPECIAL EDUCATOR (1995); Barry M. Prizant & Emily Rubin, Contemporary Is-sues in Interventions for Autism Spectrum Disorders: A Commentary, 24 J. OF THE ASSOC. FOR PERSONS WITHSEVERE HANDICAPS 199 (1999).

[FN8]. B.D. v. DeBuono, 130 F.Supp.2d 401 [151 Ed.Law Rep. [461]] (S.D.N.Y. 2000).

[FN9]. Johnny L. Matson, Debra A Benavidez, Lesley Stabinsky Compton, Theodoia Paclawskyj, & Chris Baglio, Beha-vioral Treatment of Autistic Persons: A Review of the Research from 1980 to the Present, 17 RES. IN DEVELOPMENT-AL DISABILITIES 433 (1996).

[FN10]. RONALD LEAF, MITCHELL TAUBMAN, & JOHN MCEACHIN, IT'S TIME FOR SCHOOL! (2008); Heflin& Simpson, supra note 7, at 194; Matson et al., supra note 9.

[FN11]. Matson et al., supra note 9, at 457.

[FN12]. Lovaas, supra note 6.

[FN13]. John W. Jacobson, James A. Mulick, & Gina Green, Cost–benefit Estimates for Early Intensive Behavioral In-tervention for Young Children with Autism: General Modes and Single State Case, 13 BEHAVIORAL INTERVEN-TIONS 201(1998). But see Heflin & Simpson, supra note 7; McMahon, supra note 7; Prizant & Rubin, supra note 7.

[FN14]. Terry Jean Seligmann, Rowley Comes Home to Roost: Judicial Review of Autism Special Education Disputes, 9UC DAVIS J. JUV. L. & POL'Y 217, 218 (2005).



[FN15]. Weber, supra note 2, at 46.

[FN16]. Id. at 46.

[FN17]. Id. at 46–47.

[FN18]. Id. at 47.

[FN19]. Claire Maher Choutka, Patricia Doloughty & Perry Zirkel, The 'Discrete Trials' of Applied Behavior Analysis forChildren with Autism: Outcome–Related Factors in the Case Law, 38 J. SPECIAL EDUC. 95 (2004); Susan Etscheidt,An Analysis of Legal Hearings and Cases Related to Individualized Education Programs for Children with Autism, 28RES. & PRACTICE FOR PERSONS WITH SEVERE DISABILITIES 51(2003); Yell & Drasgow, Litigating a Free,supra note 1.

[FN20]. See CATHERINE MAURICE, LET ME HEAR YOUR VOICE, at 26–27 (1993); David Satcher, Report of theSurgeon General (2005); U.S. DEPT. OF HEALTH AND HUMAN SERVICES, MENTAL HEALTH: A REPORT OFTHE SURGEON GENERAL, at Ch. 3 (1999), available at http:// www.surgeon general. gov/library /mental health/chapter3/ sec6.html #autism; Edward C. Fenske, Stanley Zalenki, Patricia J. Krantz, & Lynn E. McClannahan, Age at In-tervention and Treatment Outcome for Autistic Children in a Comprehensive Intervention Program, 5 ANALYSIS & IN-TERVENTION IN DEVELOPMENTAL DISABILITIES 49 (1985); Jacobson et al., supra note 13; Lovaas, supra note6.

[FN21]. P. ex rel. Peterson v. County, 641 F.Supp.2d 499 [250 Ed.Law Rep. [122]] (E.D. Va. 2009).

[FN22]. Etscheidt, supra note 19, at 53.

[FN23]. Choutka et al., supra note 19.

[FN24]. Perry A. Zirkel, The Case Law on Eligibility and Methodology for Students with Autism: An Update, 262Ed.Law Rep. [23 at 41] (2011).

[FN25]. Julie B. Fogt, David N. Miller, & Perry A. Zirkel, Defining Autism: Professional Best Practices and PublishedCase Law, 41 J. SCH. PSYCHOL. 201 (2003).

[FN26]. 20 U.S.C. §§ 1401 et. seq. (2004). The Individuals with Disabilities Education Act entitles eligible students withdisabilities to special education and related services. The federal statute's connection to the current study will be ex-plained in Section II.

[FN27]. Autism Society of America, http: //www. autism– society. org/about –autism / (last visited July 30, 2011).

[FN28]. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTALDISORDERS, TEXT REVISION (DSM–IV–TR) 299.00 Autistic Disorder, (2000). Oftentimes, Pervasive Development-al Disorders are also referred to as “Autistic Spectrum Disorders” or “ASD.”

[FN29]. Id. The five disorders classified under this umbrella include: Autistic Disorder, Retts Disorder, Childhood Disin-tegrative Disorder, Aspergers Disorder, and Pervasive Developmental Disorder—Not Otherwise Specified (PDD–NOS).

[FN30]. In this study, the term “autism” will be used to describe autism and autism spectrum disorders.



[FN31]. 34 C.F.R . § 300.7 (c)(1)(i) (2004).

[FN32]. See KAREN SIFF EXKORN, THE AUTISM SOURCEBOOK (2005); MAURICE, supra note 20.

[FN33]. See EXKORN, supra note 32.

[FN34]. See MAURICE, supra note 20, at 4.

[FN35]. Id. at 26–27.

[FN36]. PAUL A. OFFIT, AUTISM'S FALSE PROFITS: BAD SCIENCE, RISKY MEDICINE, AND THE SEARCHFOR A CURE (2008).

[FN37]. U.S. DEPT. OF EDUC., ELEVENTH ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OFTHE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (1992) as reprinted in Yell et al., Developing LegallyCorrect, supra note 1.

[FN38]. Id.

[FN39]. Yell et al., Developing Legally Correct, supra note 1, at 186–87.

[FN40]. Mitchell L. Yell & Antonis Katsiyannis, Critical Issues and Trends in the Education of Students with AutismSpectrum Disorders: Introduction to the Special Issue, 18 FOCUS ON AUTISM & OTHER DEVELOPMENTAL DIS-ABILITIES 138 (2003).

[FN41]. Rachel Ratcliff Womack, Autism and the Individuals with Disabilities Education Act: Are Autistic Children Re-ceiving Appropriate Treatment in our Schools?, 34 TEX. L. REV. 189 (2002).

[FN42]. See L. Darnell Weeden, An Essay: Unfunded Federal Mandates: The No Child Left Behind Act and the Individu-als with Disabilities Education Act, 31 T. MARSHALL L. REV. 239 (2006).

[FN43]. Zirkel, supra note 1; Zirkel, supra note 24.

[FN44]. Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 [5 Ed.Law Rep.[34]] (1982).

[FN45]. Id. at 201.

[FN46]. Id. at 207.

[FN47]. 20 U.S.C. § 1401(8) (2004). See also, 20 U.S.C. § 1414(d) (2004). A school must provide students with disabil-ities with an IEP. This document outlines measurable goals for a student with disabilities and describes the individualizedprogramming and related services that are needed for the student to meet these goals. It is created by a team of profes-sionals and parents, who are referred to as the “IEP team” and it is reviewed on an annual basis.

[FN48]. Yell & Drasgow, Litigating a Free, supra note 1, at 206.

[FN49]. Choutka et al., supra note 19; Etscheidt, supra note 19; Fogt et al., supra note 25; Heflin & Simpson, supra note7; Zirkel, supra note 1; Zirkel, supra note 24




[FN51]. Fogt et al., supra note 25; Heflin & Simpson, supra note 2.

[FN52]. Fogt et al., supra note 25.

[FN53]. Zirkel, supra note 1, at 92. Specifically, Zirkel urged researchers to study specific issues such as methodology.

[FN54]. Id.

[FN55]. Choutka et al., supra note 19; C. Nelson & D. S. Huefner, Young Children with Autism: Judicial Response to theLovaas and Discrete Trial Training Debates, 26 J. EARLY INTERVENTION 1 (2003); Etscheidt, supra note 19; Selig-mann, supra note 14; Weber, supra note 2, at 46; Yell & Drasgow, Litigating a Free, supra note 1.

[FN56]. However, in their article, they used the term “Lovaas” cases.

[FN57]. The authors did not specify how many of these cases were administrative due process hearings versus state orfederal court cases.

[FN58]. Yell & Drasgow, Litigating a Free, supra note 1.

[FN59]. Id.

[FN60]. Id.

[FN61]. Id. Yell and Drasgow concluded schools prevailed in cases where the school: 1) made no procedural errors, 2)hired qualified staff or expert assistance to staff, 3) implemented programming that was documented as being effective,and 4) collected documentation that proved teaching effectiveness.

[FN62]. Id.

[FN63]. Id.

[FN64]. Id. at 213.

[FN65]. Nelson & Huefner, supra note 55.

[FN66]. Id.

[FN67]. According to the University of North Carolina School of Medicine, Treatment and Education of Autistic andCommunication related handicapped Children (TEACCH) “is an evidence–based service, training, and research programfor individuals of all ages and skill levels with autism spectrum disorders.” It was “established in the early 1970s by EricSchopler and colleagues.” Introduction to TEACCH, http: //www. teacch. com/ (last visited July 30, 2011).

[FN68]. Nelson & Huefner, supra note 54, at 10.

[FN69]. 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 [5 Ed.Law Rep. [34]] (1982).

[FN70]. Nelson & Huefner, supra note 55, at 10.



[FN71]. Etscheidt, supra note 19.

[FN72]. Id.

[FN73]. Id.

[FN74]. Id. at 66.

[FN75]. Choutka et al., supra note 19, at 96. When parents and school districts disagree about what type of education isappropriate for a child with a disability, they are required to resolve their dispute through the administrative procedurecommonly referred to as “due process.” “Hearing” or “Review Officers” are the decision–makers of this appeal process.It is only after parents/school districts have exhausted the requirements of due process that they can then file their disputein federal or state court. Further, administrative decisions are rarely persuasive precedent; yet, they provide guidelineshow the law could be applied to a certain set of facts.

[FN76]. PATRICIA GRZYWACZ & LISA LOMBARDO, SERVING STUDENTS WITH AUTISM: THE DEBATEOVER EFFECTIVE THERAPIES (1999); Heflin & Simpson, supra note 2; Yell & Drasgow, Litigating a Free, supranote 1.

[FN77]. Choutka et al., supra note 19, at 96.

[FN78]. Courts sometimes refer to ABA as Discrete Trial Training (DTT). DTT is a teaching strategy used in ABA inter-vention.

[FN79]. Choutka et al., supra note 19, at 96–97. The researchers divided the 66 administrative and court decisions intotwo groups: program selection and program implementation. The EHLR is the former name of the IDELR. The IDELRpublishes special education cases and administrative rulings. According to LRP Publications, a subscription to theIDELR for one year costs $1295 http: //www. shoplrp. com/product /p–300001 .html (last visited Sept. 23, 2011). Thesepublications are not readily available at libraries.

[FN80]. Choutka et al., supra note 19, at 96–97. Cases categorized in program selection included ones in which the par-ents sought an instructional program (e.g., ABA) that differed from what the district had provided (e.g., TEACCH). Theprogram implementation cases were ones in which ABA was the agreed upon program for the child; however, the loca-tion, duration, or provider was in dispute.

[FN81]. William H. Lupini & Perry A. Zirkel, An Outcomes Analysis of Education Litigation, 17 EDUC. POL'Y 257,257–79 (2003).

[FN82]. Choutka et al., supra note 19, at 97. Parents prevailed if the outcome code was 1–2, schools prevailed if the out-come code was 6–7, and if the researchers determined the case was “inconclusive,” they did not report the case in theresults.

[FN83]. Id.

[FN84]. Choutka et al., supra note 19, at 100.

[FN85]. The current researcher calculated these percentages in order to compare them with the current study's results.Sixty–three percent (43) of the 68 cases focused on program selection and 37% (25) were implementation cases. Of these



program selection cases, parents prevailed in 20 cases, schools prevailed in 18 cases, and 5 cases were “inconclusive”and were not included in the results. Of the remaining 25 (37%) cases involving program implementation, parents pre-vailed in 13 cases and schools prevailed in 12 cases.

[FN86]. The current researcher calculated this average in order to compare it with the current study's results. Choutka etal. assigned an outcome code of 3.9 for the program selection cases and 4.0 for the implementation cases.

[FN87]. Choutka et al., supra note 19, at 100. According to Choutka et al., if parents want to prevail, they need to“establish an appropriate program and validate it with empirical evidence and effective experts.” It is also helpful if theyshow the district committed procedural errors or failed to document the school's program efficacy. In order for districts toprevail, they too need to show program effectiveness through competent witnesses.

[FN88]. Id.

[FN89]. Id.

[FN90]. Seligmann, supra note 14, at 217; Weber, supra note 2.

[FN91]. Seligmann, supra note 14, at 218.

[FN92]. Id. at 220.

[FN93]. Id. at 253.

[FN94]. Id. at 254.

[FN95]. Lt. T.B. v. Warwick Sch. Comm., 361 F.3d 80 [186 Ed.Law Rep. [15]] (1st Cir. 2004).


[FN97]. Id. at 283.

[FN98]. Id. at 220. First, it was important to have “credible expertise, documented by experience and training.” De-cisions must be made on the child's individual needs “rather than using a cookie–cutter approach to programs or ser-vices.” She stated, “a school district or parent who treats the other as an enemy to be avoided rather than a participant ina process” is problematic. Additionally, the more a school incorporates recommendations from experts and parents, themore likely a court would favor the school's judgment. The level of how much progress the student has made is also asignificant factor involved in these cases.

[FN99]. Id.


[FN101]. Id.

[FN102]. Id.

[FN103]. Seligmann, supra note 14; Weber, supra note 2, at 47.




[FN105]. 20 U.S.C. § 1412 (a)(5) (2004). Students with autism must be educated with children “who are not disabled”“to the maximum extent appropriate.”


[FN107]. Id.

[FN108]. The researcher formerly taught students with autism at the Princeton Child Development Institute, whichprovides Applied Behavior Analysis intervention to individuals diagnosed with autism.

[FN109]. Jacqueline Stefkovich, J. & Mario Torres, The Demographics of Justice: Student Searches, Student Rights, andAdministrator Practices, 39 EDUCATIONAL ADMINISTRATION Q. 259, 263 (2003).

[FN110]. RESEARCH THAT MAKES A DIFFERENCE: COMPLEMENTARY METHODS FOR EXAMINING LEG-AL ISSUES IN EDUCATION 1 (David Schimmel ed., 1996).

[FN111]. Grover Baldwin & John Ferron, Quantitative Research Strategies, in RESEARCH METHODS FOR STUDY-ING LEGAL ISSUES IN EDUCATION 57, 87 (Steve Permuth & Ralph D. Mawdsley, eds., 2006). This book is an up-date and expansion of RESEARCH THAT MAKES A DIFFERENCE: COMPLEMENTARY METHODS FOR EX-AMINING LEGAL ISSUES IN EDUCATION (David Schimmel ed., 1996).

[FN112]. Charles Russo, School Law and Research in the 21st Century, in RESEARCH METHODS FOR STUDYINGLEGAL ISSUES IN EDUCATION 5 (Steve Permuth & Ralph D. Mawdsley, eds., 2006).

[FN113]. Kromrey, Onwuegbuzie, & Hogarty, The Continua of Disciplined Inquiry in RESEARCH METHODS FORSTUDYING LEGAL ISSUES IN EDUCATION 91 (Steve Permuth & Ralph D. Mawdsley, eds., 2006).

[FN114]. Baldwin & Ferron, supra note 111, at 59.

[FN115]. NORMAN K. DENZIN & YVONNE S. LINCOLN, COLLECTING AND INTERPRETING QUALITATIVEMATERIALS (2003).

[FN116]. Additional explanation that describes how this study employed mixed methods is available. See Janet R. Deck-er, Reducing ABA Litigation through Autism–centric Charter Schools: Legally Viable or Vulnerable? (ProQuest LLC,2010) at 138–157.

[FN117]. Martha McCarthy, Legal Research: Tensions involving Student Expression Rights, in ANALYZING SCHOOLCONTEXTS 229, 253 (2010)._

[FN118]. D.A. Hollander, Interdisciplinary Legal Scholarship: What Can We Learn from Princeton's Long–standingTradition?, 99 L. LIBR. J. 771 (2007).

[FN119]. Charles Russo, supra note 112, at 6.

[FN120]. Kromrey et al., supra note 113, at 91–92.

[FN121]. But see Russo, supra note 112, at 6 (describing legal research as “neither qualitative nor quantitative”).

[FN122]. E.g., Choutka et al., supra note 19; Etscheidt supra note 19; Nelson & Huefner, supra note 55; Seligmann,



supra note 14; Weber, supra note 2; Yell & Drasgow, Litigating a Free, supra note 1; Yell et al., Developing LegallyCorrect, supra note 1; Zirkel, supra note 1.

[FN123]. E.g., Choutka et al., supra note 19; Etscheidt, supra note 19; Yell & Drasgow, Litigating a Free, supra note 1;Yell et al., Developing Legally Correct, supra note 1; Zirkel, supra note 1.

[FN124]. E.g., Etscheidt, supra note 19; Zirkel, supra note 1.

[FN125]. E.g., Choutka et al., supra note 19; Etscheidt supra note 19; Yell & Drasgow, Litigating a Free, supra note 1;Zirkel, supra note 1.

[FN126]. E.g., Choutka et. al supra note 19; Etscheidt supra note 19; Nelson & Huefner, supra note 55; Seligmann,supra note 14; Weber, supra note 2; Yell & Drasgow, Litigating a Free, supra note 1; Zirkel, supra note 1.

[FN127]. Choutka et al., supra note 19; Etscheidt supra note 19; Nelson & Huefner, supra note 55; Yell & Drasgow, Lit-igating a Free, supra note 1; Zirkel, supra note 1.

[FN128]. Erica S. Weisgerber, Unpublished Opinions: A Convenient Means to an Unconstitutional End, 97 GEO. L. J.621, 623 (2009).

[FN129]. Westlaw's Key Cites specify if a case has been overturned, reaffirmed, questioned, or cited by subsequentcourts.

[FN130]. Including case name, citation, court, year decided, notes, census region, U.S. Court of Appeal Circuit Court jur-isdiction, state of origin, procedural history, reversal versus non–reversal, facts, ABA provided then removed/reduced,self–contained classroom, diagnosis, age of student when due process was filed, relief sought, program v. implementa-tion, issue question, holding, remedy awarded, rationale, dissenting opinion(s), concurring opinion(s), outcome code, andlessons learned.

[FN131]. See Janet R. Decker, Reducing ABA Litigation through Autism–centric Charter Schools: Legally Viable or Vul-nerable? (ProQuest LLC, 2010) at 177.

[FN132]. See Decker, supra note 115, at Appendix A (comparing the current study with past research).

[FN133]. See Decker, supra note 115, at Appendix C (identifying minor modifications that the current researcher madeto the outcome code definitions).

[FN134]. Etscheidt, supra note 19; Yell & Drasgow, Litigating a Free, supra note 1, at 205.

[FN135]. Parents/child(ren) prevailed more often in 2003–2009 (7 cases) than they did in 1996–2002 (3 cases). Never-theless, school districts still prevailed more often than parents/child(ren) in 2003–2009 (24 cases).

[FN136]. Choutka et al., supra note 19, at 97. See also, Lupini & Zirkel, supra note 81.

[FN137]. However, Choutka et al. assigned a 3, 4, or 5 to Adams v. State, 195 F.3d 1141 [139 Ed.Law Rep. [820]] (9thCir. 1999) and C.M. ex rel. J.M. v. Board of Pub. Educ., 184 F.Supp.2d 466 [162 Ed.Law Rep. [126]] (W.D.N.C. 2002);whereas, the current researcher did not. Choutka et al. and the current researcher agreed that Malkentzos v. DeBuono, 102F.3d 50 [114 Ed.Law Rep. [786]] (2d Cir. 1996) was an inconclusive case.



[FN138]. Choutka et al., supra note 19, at 97. In fact, Choutka et al. determined an outcome code of a 5 results in an“inconclusive win for the school authorities.”

[FN139]. See Decker, supra note 115, at 167–206 (discussing geographical distribution, jurisdictional distribution, pro-cedural history, relief, patterns in rationale, and fact patterns).


[FN141]. J.A. v. East Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 689 [243 Ed.Law Rep. [326]] (S.D.N.Y. 2009).

[FN142]. See Decker, supra note 115, at 192–196 (discussing deference in ABA litigation).

[FN143]. See Decker, supra note 115, at 184 (discussing procedural history of ABA case law).

[FN144]. Yell & Drasgow, Litigating a Free, supra note 1, at 211.

[FN145]. Id. at 213.

[FN146]. Id.

[FN147]. T.H. v. Board of Educ., 55 F.Supp.2d 830, 836 [137 Ed.Law Rep. [555]] (N.D. Ill. 1999).

[FN148]. Id. at 842.

[FN149]. 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 [5 Ed.Law Rep. [34]] (1982).

[FN150]. Weber, supra note 2.

[FN151]. L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966 [191 Ed.Law Rep. [92]] (10th Cir. 2004).

[FN152]. W.S. ex rel. C.S. v. Rye City Sch. Dist., 454 F.Supp.2d 134, 139 [214 Ed.Law Rep. [288]] (S.D.N.Y. 2006).

[FN153]. Id. Under Burlington v. Mass. Dept. of Educ. 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 [23 Ed.Law Rep.[1189]] (1985)., parents must prove 1) the public school did not provide their child with a FAPE and 2) the privateschool's program is appropriate.

[FN154]. K.S. ex rel. P.S. v. Fremont Unified Sch. Dist., 679 F.Supp.2d 1046, 1057 (N.D. Cal. 2009).

[FN155]. Also, if the FAPE standard had been conclusively heightened by the ABA litigation, one would assume thatmore parents/child(ren) would be prevailing.

[FN156]. If the average outcome code was a 6 or a 7, then this conclusion would be more likely.

[FN157]. Zirkel, supra note 1.


[FN159]. Id.





[FN162]. E.g., J.A. v. East Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 689 [243 Ed.Law Rep. [326]] (S.D.N.Y. 2009).

[FN163]. See Decker, supra note 115, at 203 (discussing case law of school programs with ABA intervention).

[FN164]. T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247 [241 Ed.Law Rep. [22]] (2d Cir. 2009);E.G. v. City Sch. Dist. of New Rochelle, 606 F.Supp.2d 384 [244 Ed.Law Rep. [77]] (S.D.N.Y. 2009).

[FN165]. E.g., Brown v. Bartholomew Consol. Sch. Corp., 2005 WL 552194 (S.D. Ind. 2005), vacated and remanded by442 F.3d 588 [207 Ed.Law Rep. [601]] (7th Cir. 2006).

[FN166]. T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247 [241 Ed.Law Rep. [22]] (2d Cir. 2009);E.G. v. City Sch. Dist. of New Rochelle, 606 F.Supp.2d 384 [244 Ed.Law Rep. [77]] (S.D.N.Y. 2009).

[FN167]. See Decker, supra note 115, at 177–183 (discussing geographic distribution of ABA case law). ABA litigationhas occurred more often in some areas including New York, the Southern District Court of New York, the Second Cir-cuit, the Sixth Circuit, and the South. At the same time, it is not restricted to these areas.

[FN168]. See Decker, supra note 115, at 168–170 (discussing number and frequency of ABA cases).

[FN169]. Etscheidt, supra note 19; see also Yell & Drasgow, Litigating a Free, supra note 1, at 205.

[FN170]. It is quite possible, however, that if this study included administrative, procedural, and unpublished decisionsthe researcher would have concluded that ABA litigation had increased.

[FN171]. Mr. X v. New York State Educ. Dept., 975 F.Supp. 546 [121 Ed.Law Rep. [598]] (S.D.N.Y. 1997). However, itis unknown whether the parent was awarded that amount.

[FN172]. E.g., T.H. v. Board of Educ., 55 F.Supp.2d 830 [137 Ed.Law Rep. [555]] (N.D. Ill. 1999) (awarding the parentstwo year's worth of ABA intervention amounting to 38 hours per week, a training workshop, and program materials).

[FN173]. See Decker, supra note 115, at 181–183 (discussing geographical and jurisdictional distribution in relation toprevailing party of ABA case law). While it is true that school districts prevailed more in the Second Circuit and parents/child(ren) prevailed more in the Fourth Circuit, parents also prevailed in the Second Circuit and districts also prevailed inthe Fourth Circuit. Moreover, the number of cases in each circuit was inconsistent. Thus, no conclusive decisions about ajurisdiction being more favorable to one party over the other could be made.

[FN174]. Nelson & Huefner, supra note 55; Seligmann, supra note 14; Weber, supra note 2.


[FN176]. Etscheidt, supra note 19; Nelson & Huefner, supra note 55.

[FN177]. The number of children exceeded the number of cases because two cases were class action lawsuits that hadmore than one child at issue.

[FN178]. NATIONAL RESEARCH COUNCIL, EDUCATING CHILDREN WITH AUTISM (2001), cited in Seligmann,supra note 14, at 249.



[FN179]. Jacobson, Mulick, & Green, supra note 13.

[FN180]. S.W. v. Warren, 528 F.Supp.2d 282 [228 Ed.Law Rep. [709]] (S.D.N.Y. 2007); L.M.P. ex rel. E.P. v. SchoolBd. of Broward County, 2009 WL 2578987 (S.D. Fla. Aug. 18, 2009).

[FN181]. S.W. ex rel. J.W. v. Warren, 528 F.Supp.2d 282, 294 [228 Ed.Law Rep. [709]] (S.D.N.Y. 2007).

[FN182]. Id. at 295.

[FN183]. Id.

[FN184]. Dong v. Bd. of Educ., 197 F.3d 793 [140 Ed.Law Rep. [116]] (6th Cir. 1999).

[FN185]. L.M.P. ex rel. E.P. v. School Bd. of Broward Cnty., 2009 WL 2578987 (S.D. Fla. Aug. 18, 2009).

[FN186]. Decker, supra note 115, at 205 (discussing similarities in attorneys, experts, and service providers).

[FN187]. Etscheidt, supra note 19; Yell & Drasgow, Litigating a Free, supra note 1, at 205.274 Ed. Law Rep. 1

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