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Neighbors Sue Family with Autism for Creating Public Nuisance

Published September 28, 2015

By Sandi Rosenbaum, Educational Advocate

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Families with a child with autism often face severe difficulties with misunderstandings in the community.   A Sunnyvale, CA family is facing a lawsuit by their next-door neighbor families, which charges that the family’s 11 year old son with autism is a “public nuisance” and seeks unspecified monetary damages and a neighborhood safety plan.

The case has sparked strong feelings on both sides, with disability activists concerned that parents will become targets of this type of suit, with a child with special needs putting their assets at risk, and that “NIMBY” will affect families as it has affected, for instance, group homes. On the other hand, the plaintiffs say that efforts to work out a common understanding to allow all the children on the street to play outside without fear of hitting, kicking or biting have not been productive, and that filing suit was their only remaining avenue to pursue satisfaction. They say they do not blame the child but believe his parents should have supervised him more closely.

If the plaintiffs were to prevail, this could have a chilling effect on the individual rights of persons with disabilities as they could be denied access to the larger community under the seminal Olmstead case, to avoid antagonizing those in the community.

The family of the 11 year-old-boy moved from the neighborhood. They are renting out their house and are living as renters in another location. One of the plaintiff families, who was a renter, has moved from the neighborhood. The other owns their home and remains there.

On Tuesday, the families appeared at a discovery hearing in Santa Clara County Superior Court. The plaintiffs had sought access to the autistic boy’s confidential educational and therapeutic records. Judge Maureen Folan denied the discovery motion and got the families to agree to work things out in mediation, according to local news reports.

Three Tips on Getting More Support

While the facts of this case remain unclear, we do know that this family, like many others, needed more understanding and support. Children with autism and others with developmental and/or psychiatric disabilities, often require highly structured environments to stay calm and even to prevent injury to themselves and others. Developing these structures and providing these supports is expensive, and trained staff to implement them are scarce. Certainly, most parents of such children lack the resources to identify appropriate staff and fund these services on their own, and available services through school districts, Medicaid, or other supports for people with disabilities can be difficult to obtain. In addition, the low pay scale for many direct service providers to people with disabilities creates a high-turnover situation for a population with an extraordinary need for stability.

If you or a family you know is experiencing difficulty caring for a loved one with behavioral challenges, here are three ways to get help:

  1. Seek home behavioral services. Students classified in the special education system with autism, and sometimes those classified with an emotional disturbance, who exhibit severe behavioral challenges may qualify for home behavioral services as part of their IEPs, so that professional behavioral intervention extends beyond the school day and targets the home and community environment. Parents should ask their child’s school district and other agencies for help to develop a plan to curb a student’s aggressive or dysfunctional behaviors with home and school components that work together to reinforce one another.
  2. Seek services though state agencies. In New York State, additional services for people with developmental disabilities are available through OPWDD, and for persons with psychiatric disabilities through OMH. Families who are experiencing difficulty providing sufficient structure, supervision and recreational opportunities for their child with a disability outside of school program should apply for these services. Many services are funded through the Medicaid Home and Community Based Services (HCBS) waiver program, designed to support individuals with disabilities remaining with their families at home. Children with disabilities may qualify for Medicaid for HCBS waiver services based on their own assets and income, regardless of parent finances. Some services, such as the NY START program for severe behavioral crisis response and prevention, may be available even before establishing eligibility through the above mentioned systems.
  3. A residential placement may be appropriate. Unfortunately, even with home services through an IEP and supports through the Medicaid HBCS system, some children require additional supports. Like the California family, police may be called, or someone may require medical care, following an incident of aggression. In cases such as this, police and medical providers, as well as certain other professionals, are required to report cases of suspected child abuse or neglect. In many such cases, the parents are not found to be neglectful, but rather, the degree of supervision required to keep their child with special needs, and others, safe may be beyond their reasonable capacity. At a time like this, it may be appropriate to consider a residential solution.

In our experience, a school aged child with behavioral challenges too severe to be managed effectively in the home environment, even with a home component on the IEP and the help of OPWDD or OMH services, in many cases, requires a residential school placement. High quality state-funded placements exist. However, school districts may be reluctant to volunteer this option. In particular, districts with low resources and high needs may be reluctant to identify all students needing high-resource solutions both for state reporting reasons and for expense reasons (they can ill afford funding many expensive placements). However, according to the law, this is not the parent’s or the student’s problem. The student is entitled to a free and appropriate public education in the least restrictive environment. If the student’s social and management needs indicate that they cannot progress outside a highly integrated structured residential school environment., the law requires a residential placement.   Such districts often seek to portray a child’s severe behavioral issues as isolated to the home environment by stating that such behaviors are not exhibited at school. Parents may need to advocate zealously, potentially with professional help, to establish that the structures provided at school are critical to behavior management and therefore it is the student’s educational need to replicate those services throughout the student’s entire 24 hour day.

Caring for a child with significant behavioral needs can be complicated and exhausting.  Consult with an experienced special education attorney to review your case on how to get appropriate support. Our firm is here to help.

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