School system loses autism case Judge faults Henrico for not taking child; ruling may cost hundreds of thousands BY BILL MCKELWAY TIMES-DISPATCH STAFF WRITER May 27, 2006 A federal judge yesterday found the Henrico County school system knowingly and repeatedly failed to provide a system of instruction suitable to a severely autistic child. In a 79-page opinion laced with criticism of the school system's compliance with education disabilities law, U.S. District Judge Robert E. Payne sets hearings to determine what Henrico schools should pay for failing to meet federal standards of care. Those costs could exceed hundreds of thousands of dollars in school tuition and legal fees, lawyers in the case said yesterday. The school system declined direct comment on the case and referred all questions to its lawyer, Thomas Tokarz II. "I haven't read all [of the opinion] so I'm not in a position to comment," he said yesterday. Tokarz did say the school system provides a broad range of opportunities to more than 7,000 special-education students and provides tuition for students who need instruction not available in the county. Henrico spends $42 million a year on exceptional education, according to the school system. A figure for out-of-system tuition costs could not be determined yesterday. Four years in the making and in federal court for two years, the case decided yesterday represents a rare instance in which a family of a disabled child has been able to counter school system opposition to costly programs tailored to particular disabilities. "The doggedness with which Henrico County has fought this family is illustrated by the long life of this case," said Siran Faulders, who represented the family with William Hurd, both of Troutman Saunders LLP in Richmond. Hurd said in a written statement that the decision in the case will serve as a message of hope for other families facing similar difficulties with their local school systems. The case was brought by Courtney and Rick Tutwiler on behalf of their autistic son, Reid, now 8. The family was not identified in court documents but agreed yesterday to have their names made public. "The opinion validates our belief that not only was it right that we pulled Reid out of the county school system but that what the county could offer Reid at the time was not appropriate," Courtney Tutwiler said yesterday. Payne found that Henrico improperly offered Reid an educational program in which he would not make any more than minimal educational progress. Payne ruled that evidence in the case showed Reid required a rigorous, intensive education program of between 20 and 30 hours of instruction per week. "The fifteen hours provided by the [county's plan] was insufficient," she said. The Tutwiler's son began attending The Faison School in Richmond in December 2002 and immediately began showing huge strides in his ability to focus attention and speak. His vocabulary, almost nonexistent during his stay in Henrico schools, grew to 100 words. Payne wrote that the system used by Henrico was not designed to, did not, and could not provide Reid with the intensive instruction he needed and eventually received at Faison. "And, in the fall of 2002, the School Board understood that fact," Payne wrote. The Tutwilers mortgaged their home, sought grants and poured salary increases into meeting Faison's $50,000 tuition costs when the school system declined to pay for Faison, even after a hearing officer ruled that Faison offered appropriate, needed instruction. Those costs are mandated by federal law, Hurd and Faulders argued; Payne agreed. The Faison School is one of a handful of private schools that specialize in education for autistic students. Autism is a brain disorder with a range of symptoms that generally deal with attention deficits, social failings and cognitive weaknesses. "Reid would stare for hours at the sunlight shining through drops on the leaves," said his mother. In Henrico he was described by teachers, evaluators and in testimony as having no communication skills and as mentally retarded. Payne wrote that the school board rejected Faison as appropriate with merely conclusory remarks, ignoring any substantive appraisal of the program. He sided with a hearing officer's conclusions that school officials seemed to have little awareness of Reid's condition, could not remember key facts, and in one witness' case gave testimony that contradicted her own reports. At one point in a due-process hearing, Courtney Tutwiler recalled a teacher telling her that a particular school program in Henrico has become a dumping ground for the children of parents who complain. The teacher denied making the statement but Payne wrote that he could not find anything in the record to discredit Tutwiler's recollection. Reid began attending Henrico schools again two months ago. The Tutwilers said the school now provides a one-on-one aide who has been trained in the methods used at Faison. "They've come a long way, but there's still a long way to go," Courtney Tutwiler said. The differences between her son today and six years ago are immense but simply stated. "He can communicate. It was a very big step for him to realize that other people even exist."