1

From Compliance To Commitment: Shift Your

Paradigm

ACSA Every Child Counts Symposium

Presented by: Howard J. FulfrostJanuary 14, 2015

2

What We’ll Discuss Today . . .

The Legal Issues Meeting the Rowley FAPE Standard Methodology Decisions and Debates Least Restrictive Environment

Putting Legal Themes Into Practice: Keys to Designing Comprehensive Programs for Students with Autism

Tying It All Together

3

Autism: A Little History . . .

Term “autism” first used in early 1900s Associated with schizophrenia Early causation theory: “Cold mothers” 1970s: “Treated” with medication

(LSD) 1990s: Behavior therapy

4

Autism Overview

2012: Estimated that 1/88 children in U.S. has an autism spectrum disorder (ASD), according to a CDC study

Subsequent studies have adjusted number slightly

Parallel increase in disputes, litigation Methodology Levels of supports, services Least restrictive environment (LRE) Behavior/discipline

5

The Legal Issues

Key legal themes in designing programs to serving students with autism: Meeting the Rowley FAPE standard (by

developing “individualized” programs to meet educational needs)

Methodology decisions and debates Least restrictive environment

6

MEETING THE ROWLEY FAPE STANDARD

7

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)

8

J.L. v. Mercer Island School District Rowley alive and well, despite IDEA

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”

9

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.(9th Cir. 2009) 53 IDELR 280

10

METHODOLOGY DECISIONS AND DEBATES

11

Methodology Decisions and Debates

“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. (7th Cir. 1988) 441 IDELR 156

12

Case Example: 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

13

Case Example: 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. (9th Cir. 2009) 52 IDELR 64

14

Methodologies

Are certain methodologies approved by the courts? ABA (Applied Behavior Analysis)

Discrete Trial Training PECS/AAC

TEACCH (Treatment and Education of Autism and Related Communication-Handicapped Children)

Eclectic approach

15

Methodologies

What about peer-reviewed research?Since IDEA 2004, methodology is based on

peer-reviewed research to “the extent practicable”

To align with NCLB But, not defined! “Qualified, independent reviewers”…”if

possible” Not necessarily connected to FAPE

16

LEAST RESTRICTIVE ENVIRONMENT

17

Legal Elements of LRE

To the maximum extent appropriate, children with disabilities are educated with children who are not disabled.

Removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. §1412(a)(5)

18

The Rachel H. Balancing Test

Four factors:1. Academic benefit2. Non-academic

benefit3. Effect on

teacher/students4. Cost

Sacramento City USD v. Rachel H. (9th Cir.1994)

1919

IEP must include statement explaining why full participation in the general education setting is not possible.

Document, on the IEP, supplementary aids and services previously provided and their success or lack thereof

Use the word “satisfactorily” Consider the Rachel H. factors

LRE Points to Remember!

2020

RememberLRE changes just like

students;what is LRE one year, may

not be LRE the next!

21

Putting Legal Themes Into Practice: Keys to Designing Comprehensive Programs for Students with Autism

22

Designing Comprehensive Programs

Key is “individualized” program Students with autism exhibit a wide

range of needs One size does not fit all Select components of program based

on independent, research-based standards

Students’ needs change over time

23

Case Example: Changing Educational Needs

G.D. v. Torrance Unified School District (C.D. Cal. 2012)Six-year-old diagnosed with autism

(delayed in expressive language, pragmatic, gross-motor, play, and social skills)

Student showed vast improvements in following year

24

Case Example: Changing Educational Needs G.D. v. Torrance Unified School District

(cont’d)School changed IEP goals to reflect

improvement, while still offering services for speech-language skills

Parent argued that goals did not mirror goals recommended by student’s private behavioral support provider

District court held that school’s new goals did not result in denial of FAPE

25

Meeting Educational Needs: Services and Placement

PreschoolSelf-contained classroomTypical preschool classroomHome-based instructionAdult support (1:1, classroom)ABA services (or other methodology)ABA supervision

26

Meeting Educational Needs: Services and Placement

Preschool (cont’d)Speech/language therapyOccupational therapyExtended school yearTransition planningTransportation

27

Meeting Educational Needs: Services and Placement Elementary School

General education classroomSpecialized academic supportSelf-contained classroomMainstreamingAide support (1:1, classroom)ABA services (or other methodology)ABA supervision

28

Meeting Educational Needs: Services and Placement

Elementary School (cont’d)Specialized behavior support (plans,

consultation)Speech/language therapyOccupational therapyAdapted physical educationExtended school yearTransportation

29

Meeting Educational Needs: Services and Placement Middle/High School

General education classroomSpecialized academic instructionSelf-contained classroomMainstreamingAide support (1:1, classroom)Social skills trainingSpecialized behavior support (plans,

supervision)

30

Meeting Educational Needs: Services and Placement

Middle/High School (cont’d)Speech/language therapyOccupational therapyAdapted physical educationCounselingPost-school transition planExtended school yearTransportation

31

Meeting Educational Needs

A few words about goalsDeveloped to address identified needsThoughtfully consider parent and private

service provider input (but see G.D. v. Torrance USD)

But…too many goals are likely problematic!

32

Meeting Educational Needs

Joshua A. v. Rocklin USD (9th Cir. 2009)Parents’ private service providers

recommended 324 goals!District proposed 14 goals with 28

objectives Needs in parents’ goals were embedded Parents’ goals covered grade-level standards Parents’ goals addressed subject matters

outside the IEP process

33

Meeting Educational Needs

Joshua A. v. Rocklin USD (cont’d)Court(s) agreed with the District Implementation of 324 goals would dilute

focus on functional communication

34

Meeting Educational Needs

But see Student v. Garvey Elementary School District (OAH 2008)Student receiving home-based and school-

based ABA servicesNonpublic agency drafted five goals

(compliance, attention, social skills)District drafted one (social skills)

35

Meeting Educational Needs

Student v. Garvey Elementary School District (cont’d)District’s goal was inappropriate, vague,

not measurableOrdered to adopt NPA goals

36

Programming Decisions

Home-based v. school-based programStudent’s age, foundational skills“Regular educational environment”

Frequency and duration of program40-hour per week program required?

37

Programming Decisions

Case example: Student v. Downey Unified School District (OAH 2009) Seven-year-old girl with autism Significant communication deficits, social

impairments, academic and fine motor delays District offered 1:1 ABA instruction for a total of

11 hours and 40 minutes per week Later IEP increased 1:1 ABA instruction to 17

hours plus 13 hours of SDC 30 hours total

38

Programming Decisions

Case Example: Student v. Downey Unified School District (cont’d) Student argued that District’s program was

insufficient Given inconsistencies in expert opinions, ALJ

concluded that frequency and duration of ABA instruction offered by District was sufficient

39

Programming Decisions

Case Example: Student v. Hemet Unified School District (OAH 2008)Five-year-old with serious deficiencies in

speech, behavior, and socializationDistrict offered support of instructional

aide and 16 hours per week of individualized ABA instruction

40

Programming Decisions

Case Example: Student v. Hemet Unified School District (cont’d) Student argued for placement in Center for

Autism and Related Disorders (CARD) program (40 hours per week of in-home ABA instruction)

ALJ ordered District to fund student’s placement in CARD program, finding that District’s program was inappropriate

Lack of classroom structure Very little facilitation of language and social

interaction

41

Programming Decisions: Asperger Syndrome

Far-ranging needs, but typically…Average to high-average intelligenceDifficulties with

social/emotional/communication skillsUnusual interests, behaviors

42

Programming Decisions: Asperger Syndrome

Case Example: Student v. Dublin USD (OAH 2008) 14-year-old boy Excelled academically, good class participation,

accepted by peers, participated in sports But deficits re: processing speed, attention,

organization, social skills deficits District offered general education for all

academics Also offered 55 minutes/day of specialized

instruction; behavior management; social skills instruction; accommodations

43

Programming Decisions: Asperger Syndrome

Case Example: Student v. Dublin USD (cont’d) Parents wanted nonpublic school placement

“devoted to children with…Asperger’s” Judge concluded such a placement would violate

LRE requirement

44

Programming Decisions: One-to-One Aides

Is the support of a 1:1 aide more or less restrictive than placement in a specialized classroom?

It depends! Balance of educational benefit,

nonacademic benefits, disruption…and cost

45

Programming Decisions: One-to-One Aides Case Example: B.S. v. Placentia-Yorba

Linda USD (9th Cir. 2009) Fourth grade student with autism Deficits with language, reading comprehension District offered placement in a blended language

arts program Included pull-out specialized instruction for 90

minutes per day with 1:1 aide on lower-level curriculum

46

Programming Decisions: One-to-One Aides Case Example: B.S. v. Placentia-Yorba

Linda USD (cont’d) Court held that District’s offer was appropriate Instruction exclusively with 1:1 aide was too

restrictive Greater social benefits in specialized classroom

47

Tying It All Together

48

Key Elements in Effective Programs

1. Sufficient hours/intensity of services2. Specialized, appropriate curriculum 3. Placement in the LRE4. Parental involvement in IEP process5. Problem-solving approach to challenging

behaviors6. Appropriate evaluation tools to monitor

progress

49

IEP Development

Parent input! Proper team composition – including service

providers Avoid predetermination Goals in all areas (beware the 1 reading, 1

writing, 1 math, 1 social skills trap) Thoughtful recommendation for methodology Ensure that ALL relevant staff know the

contents of the IEP – and their duties to implement it!

50

Connect the Dots

Assessment leads to Present levels leads to Goals leads to Services and placement Gaps can be costly!!

51

Questions?

52

Thank you for attending!And thank you for all you do for

students!!

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.

53

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 .

54

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 .