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Hawaii News

Autism suit might bring more claims

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A federal appeals court reinstated earlier this week a lawsuit by Mark and Rie H. seeking money for what they say was the Department of Education's failure to provide them with appropriate special-education services for their daughters, who are autistic.
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The parents of autistic teens Natalie, left, and Michelle H. contend their daughters would have been more functional if they had gotten more autism-specific services. Their lawsuit against the state was reinstated earlier this week.

Sisters Natalie and Michelle, 18 and 19, have autism and need help with the simplest tasks. They can’t communicate. They probably will never live independently.

Their parents say it didn’t have to be this way.

They argue their daughters would have been markedly more functional — perhaps even high-functioning — if the teens had gotten more educational services earlier on.

The couple is seeking unspecified damages against the Department of Education, alleging administrators failed to provide appropriate autism-specific services to the children in the 1990s and that the two were victims of "deliberate indifference" by the department.

And this week they got a big victory: A federal appeals court reinstated their lawsuit after it had been thrown out.

Their lawyers say the ruling could open the doors for other parents of disabled children seeking damages with claims against the DOE over special-education services.

"Hopefully, what this does is right the ship," said Susan Dorsey, director and lead attorney of the Levin Education Access Project. "The system is so clearly broken."

The state attorney general’s office said yesterday it was reviewing the case and had no comment. The Department of Education also had no comment because the case is ongoing.

In a news conference yesterday, the father of the autistic teens said he can’t put a price on what he has lost. But the family will likely seek hefty damages to, in part, cover the lifetime care of the teens.

"Our girls are happy, but they’re not able to express themselves. Their progress is very, very slow," said Mark H., who asked that his last name not be used.

What will happen to his girls after he and his wife die is "definitely something that keeps me up at night."

On Thursday a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously overturned a decision by visiting U.S. District Judge Manuel Real, who had granted the state’s request to throw out the lawsuit.

The suit filed by the parents alleges the DOE failed to provide autism-specific services to the sisters from 1994 to 1999.

That failure, they contend, was the "result of the Hawaii DOE’s deliberate indifference to the girls’ needs and their federally protected right," the suit alleges.

And not having the services made a huge difference in how the sisters function, the parents argue.

"DOE’s failure to provide appropriate autism-specific services to the girls … amounted to a ‘tragic loss’ of developmental opportunity for the girls," their lawsuit alleges.


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