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Autism Speaks Files Amicus Brief with U.S. Supreme Court to Protect Statutory "Pendency"

WASHINGTON, DC (December 10, 2007) -- Autism Speaks, through its Federal Legal Appeals Project (FLAP), this morning filed an amicus brief with the United States Supreme Court to support the certiorari (appeal) bid of Florida triplets with autism who had been receiving services under Florida's Early Intervention program, but were denied "pendency" by their local school district when a dispute arose concerning the adequacy of the Individualized Education Plans (IEPs) that the school district offered to the children. Click here to read the amicus brief (PDF).

Pendency, sometimes referred to as "stay put," is a statutory protection under the IDEIA statute that operates to maintain the educational status quo and prevent lapses in services. The Third Circuit Court of Appeals, sitting in Philadelphia, held in 2005 in the Pardini case that a disabled child has pendency protections that attach when that child is transitioning from the state's early intervention program to the school district's program. In the case of the triplets, the Eleventh Circuit Court of Appeals, sitting in Atlanta, held earlier this year that there is no such entitlement. A "split" among the circuits is a recognized ground for the High Court to accept a case on appeal by granting certiorari.

Autism Speaks and its FLAP are supporting the triplets' bid for certiorari because statutory pendency is a protection that is important for all children diagnosed with autism spectrum disorders. It is especially critical for children with autism who are just turning three, and who would be expected to be in the greatest jeopardy if they were to face a lapse or significant reduction in services.

"Congress enacted the IDEIA statute to provide a solid ‘floor of opportunity' to children with eligible disabilities,” said Gary Mayerson, an Autism Speaks board member and director of its Federal Legal Appeals Project. “Pendency is a related entitlement to keep that ‘floor' in place in the event of a dispute. Unfortunately, the Eleventh Circuit ruled in such a way as to unwittingly fashion a ‘trap door' for vulnerable children to fall through."

The Autism Speaks Federal Legal Appeals Project is a national pro bono initiative assembled and directed by Mayerson for Autism Speaks. To date, approximately ten national profile law firms, including Akin Gump Strauss Hauer & Feld, have joined the FLAP committee with commitments to provide significant pro bono legal services at the federal level. Akin Gump attorneys Robert H. Pees, Michael D. Lockard, and Evandro C. Gigante wrote the amicus brief.

Autism is a complex brain disorder that inhibits a person's ability to communicate and develop social relationships, and is often accompanied by extreme behavioral challenges. Autism Spectrum Disorders are diagnosed in one in 150 children in the United States, affecting four times as many boys as girls. The diagnosis of autism has increased tenfold in the last decade. The Centers for Disease Control and Prevention have called autism a national public health crisis whose cause and cure remain unknown.

Autism Speaks is dedicated to increasing awareness of autism spectrum disorders, to funding research into the causes, prevention, treatments and cure for autism, and to advocating for the needs of affected families. It was founded in February 2005 by Suzanne and Bob Wright, the grandparents of a child with autism. Bob Wright is Vice Chairman, General Electric, and served as chief executive officer of NBC for more than twenty years. Autism Speaks has merged with both the National Alliance for Autism Research (NAAR) and Cure Autism Now (CAN), bringing together the nation's three leading autism advocacy organizations. To learn more about Autism Speaks, please visit