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1
From Compliance To Commitment: Shift Your
Paradigm
ACSA Every Child Counts Symposium
Presented by: Howard J. FulfrostJanuary 14, 2015
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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
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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
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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
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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
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MEETING THE ROWLEY FAPE STANDARD
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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
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.(9th Cir. 2009) 53 IDELR 280
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METHODOLOGY DECISIONS AND DEBATES
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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
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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
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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
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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
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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
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LEAST RESTRICTIVE ENVIRONMENT
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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)
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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)
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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!
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Putting Legal Themes Into Practice: Keys to Designing Comprehensive Programs for Students with Autism
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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
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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
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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
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Meeting Educational Needs: Services and Placement
PreschoolSelf-contained classroomTypical preschool classroomHome-based instructionAdult support (1:1, classroom)ABA services (or other methodology)ABA supervision
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Meeting Educational Needs: Services and Placement
Preschool (cont’d)Speech/language therapyOccupational therapyExtended school yearTransition planningTransportation
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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
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Meeting Educational Needs: Services and Placement
Elementary School (cont’d)Specialized behavior support (plans,
consultation)Speech/language therapyOccupational therapyAdapted physical educationExtended school yearTransportation
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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)
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Meeting Educational Needs: Services and Placement
Middle/High School (cont’d)Speech/language therapyOccupational therapyAdapted physical educationCounselingPost-school transition planExtended school yearTransportation
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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!
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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
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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
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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)
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Meeting Educational Needs
Student v. Garvey Elementary School District (cont’d)District’s goal was inappropriate, vague,
not measurableOrdered to adopt NPA goals
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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?
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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
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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
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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
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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
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Programming Decisions: Asperger Syndrome
Far-ranging needs, but typically…Average to high-average intelligenceDifficulties with
social/emotional/communication skillsUnusual interests, behaviors
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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
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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
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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
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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
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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
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Tying It All Together
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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
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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!
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Connect the Dots
Assessment leads to Present levels leads to Goals leads to Services and placement Gaps can be costly!!
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Questions?
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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.
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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 .
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 .