Suit against state
over autism case is
reinstated

POSTED: 01:30 a.m. HST, Aug 27, 2010

A federal appeals court reinstated a lawsuit yesterday
by the parents of two autistic daughters seeking
money for what they say was the Department of
Education's failure to provide them with appropriate
special-education services.

The family's lawyers said the decision is important
because it recognizes that the parents can seek
recovery under the federal Rehabilitation Act when
their kids are the victims of "deliberate indifference" by
the department in failing to provide the services.

"This is a very far-ranging decision that clearly
articulates the standards and opens the door to
recover damages," said Susan Dorsey, managing
attorney of the Levin Education Access Project.

State attorneys could not immediately be reached for
comment.

The unanimous decision by a three-judge panel of the
9th U.S. Circuit Court of Appeals overturned a decision
by visiting U.S. District Judge Manuel Real, who had
granted the state's request to throw out the lawsuit.
Hawaii's federal appeals Judge Richard Clifton was on
the panel.

The lawsuit filed by the parents alleges that the
department failed to provide the two children with
services as a result of "deliberate indifference" during
the girls' formative years in the 1990s. The girls, now
teenagers, were diagnosed as autistic when they were
2 and 3, can hardly speak and have limited ability to
interact with people, according to the opinion.

The state later provided services, but the family
contends the girls would have made much more
progress if they had been provided the services
sooner.

Attorney Michael Livingston, who represented the
family along with lead attorney Stanley Levin, said the
girls were permanently damaged as a result of the "lost

opportunity."

Dorsey said the case involves "substantial damages"
for the girls, who he said were "stripped of any
opportunity" to be independent and will have to be
cared for for the rest of their lives.