Autism and the LawSpecial Education

Lisa Krizman, Esq.

December 2011 Special Education and Autism

in the News• HARRODSBURG, Ky. (KTLA) -- The mother of a 9-year-old autistic boy in

central Kentucky says her son was stuffed inside a duffel bag at school for misbehaving.

Sandra Baker says that last week, she was called to Mercer County Intermediate School, where her son Christopher is enrolled in a special needs program, because he was acting up.

Baker claims she found her son inside the bag, with the drawstring pulled tight.

• Baker says she was told at a meeting with district officials that the bag was a "therapy bag," but she was not clear about what that meant.

School officials also said it was not the first time they had put Christopher in the bag, according to Baker.

The history of the “Treatment” of Individuals with Disabilities, Including

Autism 1750- 1900 “Bedlam”The “near- drowning chair” Beatings, restraints of all kindsInstitutionalization

1900-1950 “the Darkest Era”Eugenics resulting in sterilization, executionsexperimentation; Lobotomies, electric shock treatmentsInstitutionalization

from Mad In America, Bad Science, Bad Medicine, and the Enduring Mistreatment of the Mentally Ill, Robert Whitaker, Basic Books, 2002.

By 1970

• In 1970, U.S. schools educated only 1 in 5 children with disabilities, and many states had laws excluding certain students from its schools.

• In 1975, Congress passed the Individuals With Disabilities Act (“IDEA”),20 U.S.C. 1401 et. seq., as amended, because children with disabilities in the United States "were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to 'drop out.'" H. R. Rep. No. 94-33.

II. Basic Principles of The Individuals with Disabilities Act (“IDEA”):

Free Appropriate Public Education (“FAPE”)

• The state board of education must provide children with disabilities with a Free Appropriate Public Education (“FAPE”):

• At public expense;• Under public direction;• According to the standards of the

state educational agency;• Provided in conformity with an

individualized education program (the IEP).

20 U.S.C. 1401 (9).

Individualized Education Program (“IEP”)• The IEP is a detailed written

document that is prepared at a meeting between school representatives and the parents of the child, called the “IEP Team” or “Child Study Team” in New Jersey.

• It is the primary mechanism for delivering the FAPE to the child.

• Present levels, goals and objectives. N.J.A.C. 6A; 14-3.7; 20 USC 1414(d)(1) (B); Susan N. v. Wilson Sch. Dist. 70 F. 3d 751, 756 (3d Cir. 1995).

What is “Special Education?”

A public education, offered free of charge to parents of children with disabilities, ages 3 to 21, composed of specially designed instruction and related services to meet the unique needs of a student with a disability that adversely affects the student’s educational performance. N.J.A.C. 6A: 14-3.5c; The Individuals with Disabilities Education Act 1975, as amended, 2004 (“IDEA”),20 U.S.C. 1400 et. seq.

Special Education is not just “education”

• Education encompasses more than just academic learning; it includes social, emotional, and oral and written communication needs, and self care activities of daily living like toileting and feeding. Kruelle v. New Castle County School Dist., 642 F.2d 687 (3rd Cir. 1981).

• It also includes “functional” achievements necessary to

enable the child to progress to post school activities, post secondary education, vocational education, employment, independent living, and community participation. 20 USC 1414.

Why So Much Controversy? The Cost

Costs of Disability

Harvard School of Public Health 2006:

• Average cost of raising a neurotypical child – approx. $300,000

• Average cost of lifetime care for individual with autism – approx $3.2 Million

Costs of Private Schools for Children with Autism

• Residential schools: approx. $200,000-$300,000/yr.

• Day school, with transportation costs: approx. $50,000 -$100,000/yr.

• Annual cost x 18 Years of School=$$$ • 1 out of every 150 children nationally but

in New Jersey, it’s 1 out of every 94 children. (Center for Disease Control and Prevention, 2007)

• Number of students ages 6-21 with autism increased 885% from 1994-2006. (U.S. Dep’t of Education)

Why So Much Controvery?Diagnosis• January 2012 New York Times reports that the American Psychiatric Association

(“APA”) has proposed eliminating the Asperger’s nd PDD-NOS diagnoses from the Diagnostic and Statistical Manual of Mental Disorders (the “DSM”). The proposal is to consolidate the 3 diagnoses of autism, Asperger’s, and PDD-NOS into one category “Autism Spectrum Disorder” (“ASD”).

• • Under the current current criteria, a person canqualify for the diagnosis by

exhibiting six or more of 12 behaviors; theproposed definition will require exhibiting three deficits in socialinteraction and communication and at least two repetitive behaviors. The major impact of this change is expected to eliminate more cognitively able individuals. Experts predict that when the new criteria is applied , about 75% of those now diagnosed with Asperger’s would now not qualify, and 85% of those with PDD-NOS would not..

• • If accepted, the new criteria will significantly reduce the number of individuals

who qualify for educational and other benefits. •

Why So Much Controversy: How to educate?• • Matthew Goodman was born on March

4, 1987. As a toddler he was diagnosed with autism. At age nine Matthew was placed at a NJ residential program, where his family believed he would receive a good education and appropriate therapy and for which Matthew's local school district paid over $300,000 a year. In September of 2000 Matthew was placed in arm restraints to control his behavior. A helmet similar to a hockey mask was later added. Against the protests of his parents, Matthew was made to wear these restraints during the day and often during the night. In addition to the mechanical restraints Matthew was drugged with medication. On February 6 of 2002, Matthew died of pneumonia and blood poisoning after 16 months of restraint.

D. Proving Eligibility for Special Education under IDEA

A student shall be eligible for special education and related services if the student has one or more disabilities defined below, the disability adversely affects the student’s educational performance and the student is in need of special education and related services.

N.J.A.C 6A: 14-3.5 (c)

AUTISM:

A pervasive developmental disability which significantly impacts verbal and nonverbal communication and social interaction that adversely affects a student's educational performance. Onset is generally evident before age three. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routine, unusual responses to sensory experiences and lack of responsiveness to others. The term does not apply if the student's adverse educational performance is due to emotional disturbance as defined in (c)(5) below. A child who manifests the characteristics of autism after age three may be classified as autistic if the criteria in this paragraph are met. An assessment by a certified speech-language specialist and an assessment by a physician trained in neurodevelopmental assessment are required. [N.J.A.C. 6A:14-3.5(c)( 2)

Eligibility Issues

• When does autism “adversely” affect education? Does child exhibit social and behavioral progress like typical peers? Does child exhibit behavior symptoms of autism? See I.G. o/b/o P.S. v Ridgefield Bd. of Education, 2012 NJ AGEN LEXIS 110.

The standard for FAPE: (1)

The State has satisfied its obligation to provide a Free Appropriate Public Education (“FAPE”) when the Individualized Education Program (“IEP”) is “reasonably calculated to enable the child to receive educational benefits” Board of Educ. V. Rowley, 458 U.S. 176 (1982).

The Standardfor FAPE (2)

The relevant inquiry is whether the IEP confers a meaningful educational benefit and significant learning, which is gauged in relation to the child’s unique potential.

Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3rd Cir. 1999); Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 185 (3rd Cir. 1988).

The Cadillac vs. Chevrolet

How much is enough?

The IDEA requires the Board of Education to provide the educational equivalent of a "serviceable Chevrolet" to special education students; it does not require provision of a "Cadillac.“

DOE v. Board of Educ. Of Tullahoma City Sch., 9 F.3d 455, 459-460 (6th Cir. 1993).

The Rowley Case, 458 U.S. 176 (1982)

A first grade deaf child was being taught in a regular education class, with a hearing aid, a tutor for the deaf for 1 hr daily, and speech therapist 3 hrs/ week. Parents claimed that without a sign language interpreter in class, child was not receiving FAPE. However, child exhibited above average performance in school and had been advancing from grade to grade. Was this IEP appropriate? 

E. The Continuum of Placements N.J.A.C. 6A: 14-4.3(a)

• Regular class with supplementary aids and services• Resource classrooms• Special education program in local school district• Special education program in another school district• Approved private school for the disabled in the

continental United States• Accredited “Naples Act” school (N.J.A.C. 6A: 14-6.5) • Other programs including community rehab program,

individual instruction at home, or other appropriate settings.

F. Determining the Placement

Oberti v. Bd.of Educ of Clementon Sch. Dist.,789 F. Supp. 1322, 1331 (D.N.J. 1992), aff’d 995 F. 2d 1204 (3d Cir. 1993).

1. Can child be mainstreamed in regular classroom with

use of supplementary aids?2. If placement is necessary to benefit the child

educationally, has the school mainstreamed the child to the maximum extent appropriate?

3. For both the child and other children in the classroom, do the benefits of mainstreaming outweigh the possible negative effects of inclusion?

G. Determining the “Benefit”

To demonstrate FAPE, the child must show receipt of “meaningful educational benefit,” e.g. progress.

To prove the educational benefit, the IEP must contain:

(a) Measurable goals and objectives; and (b) Use objective means to measure the progress.

Lascari v. Bd. of Ed. Of Rampao Indian Hills, 116 N.J. 301, 560 A.2d 1180 (1989).

I. Who is responsible to pay for Educational Expenses?

• School districts are responsible for school tuition and transportation; “related” services such as counseling, speech, occupational and physical therapy. N.J.A.C: 14-3.9.

• School is responsible to pay for residential placement ONLY IF child needs the residential program in order to learn, and the medical, social or emotional problems can not be segregated from the learning process. Mary Courtney T. v. Sch. Dist.of Philadelphia, 575 F.3d 235 (E.D. Pa. 2009); Kruelle v. New Castle County Sch. Dist., 642 F.2d 687 (3rd Cir. 1981).

• School not responsible for hospital and medical expenses.

Discipline Issues

IEP must provide for positive behavioral interventions and supports to address challenging behavior. 20 U.S.C. 1414(d)(3)(B)(i); 20 U.S.C. 1412 (a) (1) (A).

Unregulated “Discipline”:

Restraints, isolation rooms, and aversive behavioral techniques are often invisible part of the “behavioral plan.”

“Keeping All Students Safe Act,” reintroduced

June 2011. H.R. 1381.

Typical Special Education Practices• See NJDOE Panel Review of Research, Findings, and Best

Practices for Educating Children with Autism with Emphasis on the Conclusions and Recommendations Offered by The National Research Council's Committee on Educational Interventions for Children with Autism, cited in J.T./o/b/o I.T. v. Dumont Bd. of Educ., 2009 NJ AGEN LEXIS 1056.

Common Themes:• Early, Intensive; Pervasive. See the “Window of

Opportunity” issue, W.C. v. ex. Rel. R.C. v. Summit Bd. of Educ., 2007 U.S. Dist. LEXIS 95021 (D.N.J. 2007).

Typical Educational Placements

• Mainstream, with or without aide• Self-contained classroom• Specialized, private schools• Residential

Typical Related Services• Speech Therapy (Pragmatic and Expressive Speech)• Occupational Therapy (fine motor)• Physical Therapy (gross motor)• Social Skills programs; Play programs• Behavioral Intervention Plan• Academic support or modification• Counseling, Cognitive Behavioral Therapy, Psychotherapy• Psychiatric or Neurologist• Buddies, Peer Mentors, Aides• Accommodations for Attention Deficit Issues

Sample Goals and Objectives • IEP goals should be specific and measurable• Samples• Goal: • To demonstrate self management skills. Objectives:• Reduce incidents of head banging, hitting self, 95% of the time.• Reduce incidents of crying and hair pulling, 95% of the time.• Demonstrate ability to accept teacher’s “no,” “stop,” or “wait,” without expressing aggression, 80% of the time.• Goal: • Be able to appropriately interact socially with non-handicapped peers. Objectives:• Participate daily with peers in 20 minute structured play situation with adult mediation, without a meltdown or other protests;• Demonstrate ability to play a board game with peers according to real rules for 15 minutes;• At lunch/recess, demonstrate ability to initiate and respond to play with peer; sustain play in an interactive manner without adult supervision for 15 minutes; • Demonstrate ability to play with peers with something other than Pokemon for five minutes;• Goal: Child can self-regulate emotional state to enable learning. Objectives:• Demonstrate ability to independently calm self in response to teacher requests; 80% of the time;• Reduce requests for teacher assistance when distressed to twice a week.• Demonstrate ability to accurately identify feelings when asked, 80% of the time;• Demonstrate ability to deal with teasing by asserting self or seeking teacher assistance , 80% of the time;• Be able to compare self to others, without demonstrating aggression, 80% of the time. • Goal: • Achieve motor planning skills required for learning. Objectives:• Independently remember to bring home homework 4 /5 days a week;• Keep work materials in desk in an organized manner for 3/5 days a week;• Independently pack book bag at school and at home. • Goal:• Achieve skills necessary to engage in conversation with a peer. Objectives:

– Demonstrate ability to engage in at least three-sentence social conversation appropriate for meeting new children;– Be able to engage in" ask and tell” conversation with one child of similar verbal abilities, for five minutes.– Be able to describe a movie the child has seen, evidencing proper topic maintenance, sequencing and inclusion of details, for

one minute.• Goal: • To demonstrate increased tolerance of ordinary sensory stimuli. Objectives:

– Reduce evidence of distress when faced with typical auditory stimuli, ex. school fire drill, 80% of the time.– Participate in various age appropriate play activities involving strong tactile input, 80% of the time.– Learn to touch type so that 80% of school work is typed on AlphaSmart, and 80% is accurate.