Autistic child's damage claim against school district allowed to proceed

By John Breslin | May 28, 2018

The U.S. District Court for the Eastern District of California said a 9-year-old girl with autism can continue with her claim of discrimination against a California school district after denying an attempt to dismiss the complaint.

The U.S. District Court for the Eastern District of California said a 9-year-old girl with autism can continue with her claim of discrimination against a California school district after denying an attempt to dismiss the complaint.

The girl, through her mother, is suing the Tehachapi Unified School District for damages over claims she was not allowed to have her physician-prescribed therapist accompany her at the school.

The court, in its May 7 ruling, dismissed two complaints that largely centered on two individuals at the school, but ruled the girl's claims under the American Disability Act, the Rehabilation Act, and the California Unruh Civil Rights Act can proceed.

The case centers on the girl being prescribed 40 hours a week of applied behavior analysis (ABA), which requires that she be accompanied by a therapist.

Before attending the school the girl received ABA therapy through her insurance or through Kern County.

Through her mother, she claims the school refused to allow the therapist to accompany her to the school. It led to her being removed from the school for a year, according to the complaint.

At some point, she was covered by her own insurance, though the company then denied that coverage, arguing it was up to the school district to cover the cost. It was reinstated.

The school district, in arguing for dismissal of the complaint, stated that the plaintiffs failed to exhaust all administrative remedies.

The girl is described in court documents as intelligent but has deficits in her ability to recognize danger or unsafe circumstances, she has only recently begun

The girl, identified as K.M., began attending the district's schools in preschool, and the district has always acknowledged she is eligible for special education.

Since entering school, K.M. asked for the ABA treatment while at school, but claimed the district "has consistently denied this request."

At one point, the insurance company said it was up to the district to fund the therapy and denied coverage. The district did so for a time but this was stopped in February 2015.

According to court papers, the district insisted the girl be removed from school and "placed in a completely segregated autism program in Bakersfield without ABA therapy."

In 2016, funding for the ABA treatment was approved by the insurance company. However, the girl remained out of school for the 2016-17 year.

Under the administrative process, the district was told to hold a meeting "for the purpose of openly and honestly discussing and considering the ABA prescription and K.M.'s mother's request that the district allow the ABA insurance-funded aide to accompany Student on campus." The court found the girl was not subject to the administrative process.

The court ruling said, "Plaintiffs' discrimination claims are ripe, and the court is not deprived of jurisdiction on this basis." 

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