Building & Maintaining a Legally Compliant Autism Program

Jan Tomsky, Esq., & Wes Parsons, Esq.,

Fagen Friedman Fulfrost, LLP

Mary Schillinger, Asst. Supt. & Brandie Rosen, Prog. Sp.

Las Virgenes Unified School District

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Welcome & Agenda

Legal Issues & Standards

Evolution of an Autism Program

Key Elements

Building Capacity

Training

LRE & ABA

Legal Standards

Effective Interventions

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Las Virgenes Unified School District

ADA 12,000

Four Cities / Westlake Village, Agoura Hills, Calabasas, Hidden Hills, in Southern California

15 schools including two comprehensive high schools

SPED population 1,350

Affluent Community – High Achieving Students

State Accountability Scores in 800s and 900s

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LVUSD Autism Percentage(CA State Ave. is 8.8%)

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Hide!

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Ignore!

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Prepare….

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What we found….

When we’re prepared, ultimately our costs were reduced!

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District Costs vs Parent Payouts (Not Actuals)

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We Defend Our Programs

Break a

“Pay Em to Go Away”

cycle!

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Develop a Strategic Plan

Analyze your Due Process Filings

Compare your programs to best practices

Do a Gap Analysis

Build Capacity for Training

Implement and Support

WeedPractices

Personnel

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Self Study Guide

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LRP Publications

www.LRP.com

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National Standards Project

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The National Professional Development Center on Autism Spectrum Disorders

Evidence-Based Behavioral Strategies

Prompting

Reinforcement

Task analysis

Time delay

Computer-aided instruction

Discrete trial training

Naturalistic interventions

Parent-implemented interventions

Positive Behavioral Supports

Functional behavior assessment

Functional communication training

Stimulus control/environmental modification

Response interruption/redirection

Extinction

Differential reinforcement

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The National Professional Development Center on Autism Spectrum Disorders

Confirmed Evidence-Based Peer-Mediated Instruction/Intervention

PECS

Pivotal response training

Self-management

Social narratives

Social skills training groups

Structured Work Systems

Video modeling

Visual supports

VOCA/speech-generating devices

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National Research Council

National Academy Press (2001)

www.nap.edu

Promo code!

LRPM10

ISBN: 0-309-07269-7

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Autism Internet Modules (AIM)

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What could we do???

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The Legal Standard & Cases

Current Legal Standard for Comprehensive Programs for Students with Autism

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Overview

Challenges to the Rowley standard

The Methodology Debate

Least restrictive environment

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Remember Rowley!

The U.S. Supreme Court’s standard re: FAPE:

Is the IEP reasonably calculated to provide educational benefit?

Did the district comply with the IDEA’s procedural safeguards?

Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley

553 IDELR 656 (1982)

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J.L. v. Mercer Island School District

Rowley alive and well, despite IDEA 1997 definition of transition services as an “outcome-oriented process”

To offer a FAPE, district must offer a “basic floor of opportunity” that is “reasonably calculated” to provide the student with “educational benefit”

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Ninth Circuit rejected argument that IDEA now requires that districts guarantee some level of “outcome”

“Had Congress sought to change the…’education benefit’ standard…it would have expressed a clear intent to do so.

J.L. and M.L. ex rel K.L. v. Mercer Island Sch. Dist.

53 IDELR 280 (9th Cir. 2009)

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Lachman v. Illinois State Bd. Of Educ.

“Parents, no matter how well motivated, do not have a right…to compel a school

district to provide a specific program or employ a specific methodology”

Lachman v. Illinois State Bd. Of Educ., 441 IDELR 156 (7th Cir 1988)

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DISTRICT CHOICE OF METHODOLOGY/BEHAVIOR

SUPPORTS

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Joshua A. v. Rocklin Unified Sch. Dist.

Student’s IEP called for in-home ABA program

District recommended an “eclectic” school-based autism program

Parent claimed district’s program denied FAPE because it was not supported by peer-reviewed research

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Joshua A. v. Rocklin Unified Sch. Dist.

Eclectic approach was based on peer-reviewed research “to the extent practicable”

More significantly, IEP was tailored to student’s unique needs and offered basic floor opportunity

Joshua A. v. Rocklin Unified Sch. Dist., 52 IDELR 64 (9th Cir. 2009)

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LEAST RESTRICTIVE ENVIRONMENT

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Solano Beach Sch. Dist.

Preschooler with normal cognition

Weaknesses in socialization, expressive language

Experienced anxiety in large group

District proposed Special education preschool in am

General education preschool in pm, supported by a 1:1 aide

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Solano Beach Sch. Dist.

Administrative law judge: Neither aspect of the offer was appropriate

Special Education classroom:

Would address her instructional needs

But did not provide access to typical peers

Was not the least restrictive environment

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Solano Beach Sch. Dist.

General education classroom:

Would provide access to typical peers

But, was inappropriate

Class structure

Number of students

Multiple transitions would be overwhelming

Solano Beach Sch. Dist., 49 IDELR 237 (SEA CA 2008)

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Keys to Comprehensive Programs

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Assessment

Assess in ALL Areas

Social Behavior

Language and Nonverbal Communication

Adaptive Behavior

Motor Skills

Atypical Behaviors

Cognitive Status

Including Learning to Learn Skills

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Training in Assessment

Critical to train assessment teams in diagnosis of Autism!

Areas to assess (NRC check list)

Multiple observations by all assessors

Train to recognize “high functioning”Autism

Beware the “Quirky Kid” syndrome!!

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IEP Development

Parent Input!

Goals / Objectives in all areas as per NRC recommendations!

Don’t forget Social Skills Training & Learning to Learn Skills!

Thoughtful recommendation for methodology!

LRE with Typical Peers!

“Sufficient” Adult Attention – Intensity!

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Mind the Gaps!!!

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Connect the Dots

Complete Assessment ……….. leads to

Present levels ………… leads to

Goals ……………. leads to

Services ………………….

Gaps can cost you!!

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Systematically Implemented, Educational Services

The IEP outlines the “identified objectives”.

Ensure that ALL staff know the contents of the IEP !!!

Ensure that the child’s schedule reflects appropriate activities designed to meet the objectives.

Autism Program

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The Evolution of the Autism Program Historically- children with Autism were educated in an

SDC or self-contained special education classrooms with other students with varied moderate to severe needs.

Over time, SDC classes evolved into Autism-specific SDC classes.

With the more systematic education of children with Autism in the SDC classrooms, the push for more inclusive opportunities became available.

SAI

A continuum of placement options including all of the options.

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Evolution of the Autism Programs

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Preschool Programs

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Recommendations of the National Research Council Children should begin receiving

specialized, intensive early intervention as soon as child is diagnosed w/ ASD or is suspected to be at risk for an ASD

Never delay intervention while awaiting an evaluation

Never “wait and see”

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Key Elements in Effective Programs

1. Sufficient hours/intensity of services

2. Comprehensible environments with access to typical peers

3. Specialized, appropriate curriculum (ABA)

4. Family involvement

5. Problem-solving approach to challenging behaviors

6. Appropriate evaluation tools to monitor progress

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Programs

It is critical that a continuum of program options exist for pre-school age children, from intensive settings to more

inclusive settings and the IEP team determines placement based on strong assessment and student individual need.

Home programming vs. school settings

S/L ½ day program

Early Childhood Classes

Special Day Classes

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Buttercup

We are a full inclusion program that meets the individual needs of typically developing children and children with special needs-side by side.

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Buttercup Collaboration between all staff-

special educators and general education teachers

psychologist, behaviorists, speech and language specialists, occupational therapists, adaptive physical education teachers and trained instructional assistants.

Provide specialized staff training inApplied Behavior Analysis

Positive Reinforcement

Corrective Feedback

Systematic Feedback

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Things to Consider Early Education for young children focuses on functional,

spontaneous communication based on the assumption that most children can learn to speak

Efforts are made to form positive relationship with parents

parent information nights,

IEPs

back to school nights

communication logs

Transition IEP’s in and out of pre-school

Ensure interaction with typically developing peers.

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Student v. Newport-Mesa USD (OAH 2006)

District offered three-year-old student placement in preschool autism class:

5 ½ hour day

Six to eight students

Teacher and instructional aides trained in ABA

Included one-to-one, two-to-one, and group instruction

Student’s 15 hours of in-home instruction would gradually taper off

ALJ found District’s offer was appropriate because class was structured and small enough to meet the student’s needs

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Hemet USD v. Student (OAH 2008)

Home-based program was appropriate for five-year-old to develop precursor skills of attention, language, self-regulation, and compliance

District’s placement was too unstructured and methodologies were not appropriate to address serious speech needs

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Transitioning from preschool to elementary Remember that elementary schools look different than

preschool:

Parents

Environment- SDC classes to general education classes

IA support

Students may present differently in less structured settings

General education vs. special education

Different skills are needed in elementary

The gap between skill performance of typical and autistic

students expands

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Elementary Education: Things to Consider Children with Autism are educated at their home

schools with access to typical peers as often as possible

Children with Autism have opportunities for on-going systematic teaching in all deficit areas. (ABA)

Inclusion is planned for and students aren’t just “dropped into” general education

Instruction assistants are trained and used to help students achieve independence.

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Home

DIS

Special Education

General Education

Programming

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LVUSD Special Education Programs (Elementary) SAI

SDC

Behavior class

Social communication class

Intensives

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Intensive Behavior Class

All grade levels as needed

Students with more intensive behavioral needs (acting out)

Students with severe deficits in learning to learn skills Attending

Compliance

Frustration tolerance

Students who need very individualized ABA based instruction for the majority of the day

These are students who may otherwise not be able to remain in the district

Intensive data collected

Because we believe we can do more than just maintain students

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Video of Behavior Class

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Social Communication Class Third, fourth and fifth graders (right now)

Students with social communication issues

Those that need more intensive social skills and learning to learn instruction on a daily basis

Could be below grade level, at grade level or above grade level academically

These are kids who traditionally have been served at their home school and done “ok”.

Once they get to middle school (the social communication program) they have more severe deficits and middle school is a much more challenging environment to deal with these issues.

These are kids who traditionally have been served at their home school and done “ok”.

Once they get to middle school (the social communication program) they have more severe deficits and middle school is a much more challenging environment to deal with these issues.

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Video of social communication class

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Intensives

Intensive behavioral/social interventions

Designed for students who are not being successful with the highest level of intervention typically found in our schools

Systematic

Begins more restrictive and continues through generalization

Individualized

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Video of Intensive

Video

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Example of a student with Autism’s daily schedule8:00-8:30: general education independently for morning business8:30-9:00: general education with IA support for writing9:00-10:00: special education language arts10:00-10:20: general education recess with IA support for facilitation of

play (not 1:1)10:20-11:30: special education math11:30-12:15: general Education lunch and recess with IA support for

social facilitation (not 1:1)12:15-1:00: general education science without support1:00-1:30: 1:1 proactive teaching in the special education classroom1:30-2:30: general education classroom social studies without support

except last 10 minutes to assist with writing down homework

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Student v. Long Beach USD (OAH 2005)

Non-verbal student fully included with 1-1 aide for first and second grades.

District offered placement in Autism SDC for third grade with some mainstreaming

Although ABA was referenced in a later IEP, the ALJ determined “it was not established that the District should have or was required to make specific references to ABA or any principles of teaching listed in the IEP”

Relying on evidence that Student and his aide “became an island” in his first and second grade general education classes, the ALJ found that the Autism SDC offered Student a FAPE in the LRE and that the parent failed to establish that continued full inclusion in a general education class was appropriate or adequate to meet his needs.

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Anaheim City SD v. Student (OAH 2010)

District recommended placement for student in SDC with 2 hours per day of 1-1 ABA instruction and mainstreaming for lunch and recess

Parents sought 3 hours per day of 1-1 ABA instruction

OAH agreed with District’s position that:

1-1 ABA aide was available to utilize ABA strategies for remainder of school day

3 hours of 1-1 would be half the school day and student had educational needs which required access to others in a classroom or group setting

student’s one-to-one ABA instruction was producing rote responses with an inability to generalize what had been learned in prior DTT drills.

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Transitioning from Elementary to Secondary Secondary looks very different than

elementary More sophisticated peer group- “less room for error”

Higher teacher expectations

Greater expectation for student independence

Higher academic work load

Peer pressure to “fit in”

Larger campuses and student populations

Increased transitions

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Secondary Education-things to consider Children with Autism continue to need systematic

teaching.

Need to consider the role of ABA in educational programming.

Functional skills curriculum vs. academic standards based curriculum.

Need to consider how social support can be provided without stigmatizing.

Supporting children in developing age appropriate interests.

Providing adult support in more subtle less interfering ways.

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LVUSD Special Education Programs(Secondary)

SAI

SDC classes

Social Communication Program

Functional programs

Post secondary

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Social Communication For students who require more intensive daily

instruction in social skills and learning to lean skills

1 hour daily of systematic social skills instruction (elective)

Individual as well as group behavior and social targets are identified and curriculum developed to work on specific skills

Adult support throughout the school day as determined by the IEP team

More than a “safety net”

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Functional programs

For students who require a functional skills curriculum, including life skills and functional academics, to benefit from their education

Lower teacher student ratio

Intensive instruction in social skills, life skills, behavior modification and development of leisure skills

Be aware of assuring meaningful access to typical peers

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Post-Secondary

For Students who are 18-22 years old who have earned a certificate of completion and will not earn a high school diploma

Focus on functional life skills, functional academic skills and work skills

Part of the day academics and part out in the community

Increased focus on social and leisure skills

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Corona-Norco USD v. Student (OAH 2009)

Middle school student wanted home-based ABA instruction

District offered a general education placement, one-to-one aide, social skills program

District showed Student’s social skills improved, his behaviors decreased, and he made progress on goals

ALJ found District’s program provided a FAPE in the LRE

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Student v. Acalanes Union HSD (OAH 2008)

Intellectually gifted 14-year-old student who had social and communication deficits, depression, and attention issues

District offered a general education placement, with one period/week of social skills and one period/day of pull-out instruction

ALJ found District’s offer inadequate

Parents’ unilateral placement of Student in an NPS composed of students with Asperger’s was a “proper alternative placement”

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Tips when planning programs for students with autism

Remember- the need for systematic teaching never ends for kids with Autism

Kids with autism need to be educated differently than kids with other disabilities

Programming for kids with Autism needs to include opportunities for generalization of skills across settings before considered mastered

Training for staff is critical

Partnerships with parents is critical to successful programming

Data collection needs to be embedded in every program for students with Autism

Social skills and learning to learn skills need to be a component of all programs

Administrative support is crucial for successful programs

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ABA Classroom Support Form

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Autism Programs in Action

Your programs are only as strong as the people who implement them!

So this means training is KEY!!

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Things to consider when training staff All training conducted by qualified staff

Supported by the “Expert”

All special education staff are trained

General education and administrative staff should have a working knowledge of ABA.

Training is on-going

Training fits the needs of the staff

Builds a “culture” of ABA

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Foundational Training – ABA(2 days)

Day 1

What is ABA?

ABA & Autism

Problematic Behavior

ABC’s of Behavior

Functions of Behavior

Practical Efforts

Reactive Programming

Proactive Programming

Day 2

DTT (Discreet Trial Teaching)

Social Skills

Pulling it all together

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Hands On Autism Training –4 Days Topic Presentation- builds on skills each day

Reinforcement

Instructions

Feedback

Prompting

“Hands On”

Observation, guidance, prompting, & modeling by training staff

Debriefing / Role Play

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Staff Training

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ABA Training Tiers

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Student v. Orange USD (OAH 2011) Student originally found eligible under speech and language. ALJ

noted deprivation of educational benefit since he did not receive any services resulting from being eligible under the category of autistic-like behaviors until a later date.

District recommended SDC preschool program for mild to moderate students for 100 minutes weekly until integrated for full school day (3 hour and 20 minutes per day).

SDC was not designed for autistic children, did not include behavior therapy in its curriculum and shared facilities with a Kindergarten SDC for portion of the day.

District subsequently offered 3 hours per week of ABA therapy. Parent objected that ABA was to be provided by an "aide" rather than a "behavioral therapist". ALJ appeared to find District's ABA aide training consisting of four lectures for a total of eight hours and a one-to-two week practicum which involved hands on training inadequate.

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Student v. Orange USD (OAH 2011)

District later recommended Kindergarten mild/moderate SDC and anABA assessment; later adding 5-hours per week of school-based ABA

Parent later requested a school-based, one-to-one shadow aide provided by CARD in lieu of offered 5-hours per week afterschool ABA support.

Parent ultimately placed Student in a private school with a full-time CARD.

ALJ noted "comprehensive programs generally require 25 or more hours of active student engagement per week for two or more years and attempt to change the clinical course of an autistic spectrum disorder, including prevention or reduction in problem behaviors." ("Educating Children with Autism," Committee on Educational Interventions for Children with Autism, National Research Council, 2001, p. 119 of Exhibit S79.)

ALJ ordered reimbursement to Parents for private school tuition,reimbursement for CARD ABA aide services and an ABA-trained, one-to-one behavioral aide from CARD to accompany Student for the next school year and extended school year "wherever he attends."

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Questions?

Thank you!

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to

determine how this information may apply to your specific facts and circumstances.

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to

determine how this information may apply to your specific facts and circumstances.