Lawsuit takes aim at Portland school district's treatment of autistic students

Federal complaint says Portland Public Schools deprives youths of critical therapy, despite state dollars to pay for it.

Family of a Portland student says Portland Public Schools deprives autistic children of needed therapy services. A federal lawsuit recently filed against PPS seeks to restore and bolster resources for children with autism spectrum disorder.

The lawsuit, filed in November in U.S. District Court in Portland, alleges violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973.

The complaint asserts the district failed to accommodate a student by not allowing therapists to provide applied behavior analysis, or ABA — a type of therapy often used to help autistic children in school, play or community settings. By not receiving therapy, the complaint states, the student eventually was excluded from school and exhibited declining mental health.

The school district declined to comment on the lawsuit, citing pending litigation.

Advocates say, with a minor tweak in Medicaid coverage, schools could provide the therapy they want to see and get reimbursed with federal dollars, but districts haven't pursued that option.

According to parents of the child — referred to only by his initials, A.F. — the school district wouldn't allow the 12-year-old student to receive "medically necessary health care" from his private provider while at school. That led to A.F. having increased outbursts and disruptive behavior.

"The District's decision to prohibit the provision of medically necessary mental health care has (exacerbated) and perpetuated A.F.'s crisis, and has risked his health, safety, and wellbeing, as well as the safety of District staff," the federal complaint states. "It has disrupted the provision of educational services to others. It has prevented A.F. from accessing educational services, it has injured A.F., and if it continues, it will cause A.F. permanent harm."

Brenna Legaard is the lead attorney on the case. She also is A.F.'s mother.

Legaard said, not long ago, PPS did allow students to receive treatment from private therapists in the classroom. But last year, that went away.

A select few families were able to lawyer-up and have retained their therapists, as reported earlier this year by Willamette Week but according to the district, it currently has at least 982 autistic students.

"Portland Public has taken the position that anything that happens in a school is an educational issue or problem and the teachers would be able to handle any problems," Legaard said, "but teachers are not mental health professionals."

She noted PPS has "a genuine resource problem" when it comes to delivering therapy to children in need, and cannot meet the needs of all its students with the mental health staffing it currently has.

"It's such a huge problem and it's dramatically unmet," Legaard added.

The lawsuit claims that before the district yanked A.F.'s ability to receive therapy in the classroom, he had no history of physical or aggressive behavior. That changed.

"A.F. began screaming frequently, tipping over chairs, removing others' eyeglasses from their faces, and throwing objects," the complaint states, noting the 12-year-old's maladaptive behaviors and need for emotional regulation led to him being excluded from mainstream classes and school altogether.

In his case, applied behavior analysis, or ABA, therapy was not only helpful, according to the lawsuit, it was deemed medically necessary by a neurodevelopmental pediatrician.

"Unfortunately, since (A.F.) transitioned to middle school he is now in crisis and it is even more important that he receive ABA services across settings. In particular, this needs to be delivered at school as this is where (he) is struggling the most," Robin McCoy, a developmental pediatrician, wrote in a Nov. 3 memo.

Other advocates

Legaard isn't alone in fighting for hers and other children with autism. Paul Terdal also has played a significant role in working beyond the school district to effect policy change to the benefit of students with autism spectrum disorder. He's been at it for nearly a decade.

"When we started this, there was no insurance coverage for autism," Terdal said.

"In 2013, I worked with (State Sen. Alan) Bates and we passed a bill that spelled out terms for autism coverage," Terdal said of Senate Bill 365. The bill resulted in insurance companies covering applied behavior analysis therapy, including in schools.

Terdal, who has two kids in the district, both with autism spectrum disorder, has worked with several other key groups at the state level, but despite his advocacy, he still sees a "health care versus education" divide within academic settings.

Terdal and Legaard say, because schools have been providing special education services for some time, they also view autism treatment as their job, but both parents say the district doesn't provide specialized services at the level needed to really help kids in need.

"Several years ago, my oldest son was having issues in school," Terdal said. "The school provided a full-time para-educator who was a nice person, but had no specific training in autism."

PPS confirmed that during the 2017-18 school year, it restricted the ability of private therapists in classrooms "to better align with the special education services that the district provides," even though those therapists are paid by insurance dollars and pose no cost to the district. Instead, the district relies on Individual Education Programs and allows therapists trained in applied behavior analysis to give input on those programs.

While PPS declined to comment on the lawsuit directly, citing pending litigation, it instead provided a statement about the services it does provide.

"Although PPS does not provide medical treatment or therapy to its students, it works closely with the families of students with disabilities in the district to develop an Individual Education Program (IEP) that identifies learning goals and special education services to help each student achieve these goals," a statement from the district reads. "PPS uses evidence-based instructional strategies and methodologies, behavioral supports, and curriculum in designing special education services that meet students' learning needs. Applied Behavioral Analysis (ABA) is one of the evidence-based educational services that PPS provides."

Seeking federal money

Children exhibiting outbursts and disrupting classrooms has been an ongoing issue in schools across Oregon, but the subject has gained greater attention over the past five years.

Parents and teachers say students who experience "disregulation," or those who may be part of a special education program, often become disruptive, or worse, physically aggressive with adults or other students. That often can lead to those students in crisis being disciplined, or separated from general classroom settings. Parents like Legaard say that's not a solution and, in fact, can be harmful to those students. Instead, advocates say schools should utilize health care funds to hire licensed professionals who could provide therapy to students via school based health centers.

A 2016 letter from the Oregon Health Authority to coordinated care organizations and statewide school superintendents confirms that the organizations are responsible for paying for ABA therapy. Coordinated care organizations were created in Oregon to streamline health care services, including physical, mental, dental, behavioral health and more.

"This is going to require a real sea change in how they address these things," Legaard said, pondering solutions. "We've got the (coordinated care organization) model, so it should be easy. We really think that PPS needs to start working with private sector clinicians. For any kids on Medicaid, it should already be paid for."

Legaard's lawsuit doesn't seek a specified dollar amount. She said she's not looking for money from the school district; rather, a change in policy and practice.

Since filing the lawsuit, she said she's had "productive conversations" with the district and said she hopes for a solution.