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Lawsuit: Horry Schools is violating federal disability act with autism student

Sun News - 3/5/2020

Mar. 5--After years of pleading with Horry County Schools to allow a trained behavior therapist into the school to help his son with autism, David Werner is taking his battle to court.

Warner filed the lawsuit Tuesday in U.S. District Court on behalf of his 9-year-old son, alleging the school district and Superintendent Rick Maxey are violating the federal Americans with Disabilities Act and Rehabilitation Act.

The suit details his son's autism diagnosis and a pediatrician prescribing him 40 hours per week of Applied Behavior Analysis therapy supervised by a Board-Certified Behavior Analyst in multiple settings, including at school.

Warner alleges that the district has continually refused to allow his son's ABA therapist, at no cost to the district, into the school and, as result, he's developed severe problem behaviors including physical aggression and exposing body parts.

Those behavioral issues have led to his suspension from Carolina Forest Elementary School and a subsequent regression in his communication and language skills, the suit states.

The complaint specifies that these claims of federal violations don't center on a denial of Free and Appropriate Education under the Individiuals with Disabilities Education Act, but rather about appropriate access to public school facilities.

"Allowing (his son's) ABA trained therapist to administer his medically necessary treatment during school as prescribed by his physicians is no different than permitting a service dog accompanying someone with a seizure disorder or a vision impairment," the suit states.

The complaint also cites other issues including the district using a teacher without the minimally required credentials to fill in while his son's special education teacher was on maternity leave, and the district concluding that his son, at the age of nine, is not capable of graduating with a diploma.

Warner has been a regular public comments speaker during the district's board meetings for more than a year, trying to urge board members to allow ABA therapy into the schools. He also created a coalition of autism parents that have regularly joined him in speaking at those meetings.

The district showed board members a video during their most recent meeting in February highlighting the work they do for students with autism, but a parent spoke during public comment shortly after and told the board that the positive information shared in the video wasn't indicative of the negative experience he's had with his special needs child.

Warner requests in his complaint for the court to set an emergency hearing as soon as possible to consider a preliminary injunction that would order the district to allow his son's ABA therapist into the school while the litigation continues.

Lisa Bourcier, a school district spokeswoman, responded that the district does not comment on pending litigation.

The district is facing numerous other lawsuits involving special needs children, including one that alleges a special needs teacher forcibly cut a student's hair for fidgeting and a wrongful death suit claiming the district failed to protect an Aynor Middle School student with autism from bullying, which led to his suicide.

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