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AUTISM: SUMMARY OF SELECTED DECISIONS THROUGH 1998 TABLE OF CONTENTS
Students With Autism and Educational Placement Least Restrictive Environment (LRE) The Individuals with Disabilities Education Act (“IDEA”) provides that each state must establish procedures to assure that, to the maximum extent appropriate, children with disabilities... are educated with children who are not disabled, and that separate classes, separate schooling, or other removal of children disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily. (20 U.S.C. 1412 (5) (B).) In addition, the IDEA regulations require schools to educate children with disabilities together with children who do not have disabilities (34 C.F.R. § 300.500). According to the regulations, when selecting the least restrictive environment, school authorities should give consideration to any potential harmful effect on the child or on the quality of services that he or she needs; consideration should also be given to any harmful effect on the education of the other students (34 C.F.R. § 300.522). In all cases the determination of what constitutes the LRE must be made on an individual, case-by-case, basis. A number of LRE tests have been developed by the courts to determine whether a school district has met its burden under IDEA. The three most widely applied, however, are the Roncker test, the Daniel RR test, and the Holland test. The Roncker test was devised by the sixth Circuit in Roncker v. Walter, 100 F.2d 1058 (6th Cir. 1983). When determining the LRE for a particular student the Roncker test examines three elements:
The Roncker test was also adopted by the Eighth Circuit in A.W. v. Northwest R-1 School District, 813 F.2d 158 (8th Cir. 1987) and the Fourth Circuit in DeVries v. Fairfax County School Board, 882 F.2d 876 (4th Cir. 1989). The second LRE test was devised by the fifth Circuit in Daniel RR v. State Board of Education, 874 F.2d 1036 (5th Cir. 1989), and was also adopted by the Third and Eleventh Circuits. Daniel RR starts its LRE inquiry by examining whether the school district has “taken steps to accommodate the handicapped child in regular education.” Because the IDEA requires school districts to provide supplementary aids and services, and to modify the mainstream program when they mainstream children with disabilities, whether education in a regular classroom with the use of supplemental aids and services is appropriate for a given child, under Daniel RR, involves the following three-part inquiry:
Finally, the Ninth Circuit developed a hybrid of the Roncker and Daniel RR tests in the Holland case. Sacramento v. Rachel Holland., 14 F.3d 1398, 1404 (9th Cir. 1994). The Holland test, essentially a balancing test, examines four elements:
By endorsing such tests, the Circuit Courts have emphasized that the LRE requirement of IDEA creates a presumption in favor of educating children with disabilities alongside their mainstream peers. In response, the notion of full inclusion for students with disabilities, including those with autism, has become a fundamental feature of many special education reform initiatives, even though the term “full inclusion” does not appear anywhere in IDEA. Although many believe that full inclusion is the next “logical step” in securing appropriate and legally required services for children and youth with disabilities, others disagree. Kauffman and Hallahan (1994) described full inclusion as “special education’s largest bandwagon ever, one having gathered such great mass and momentum that it seems to many unstoppable” Simpson, Richard L. Children and Youth with Autism in an age of Reform: A Perspective on Current Issues, Behavioral Disorders, 21(1), 7-20. While recent case law has generally supported inclusive placements for students with disabilities, (e.g. Board of Education, Sacramento City unified School District v, Holland, 1992; Greer v. Rome City School District, 1991; Oberti v. Board of Education, 1992), a contradictory trend appears to be unfolding concerning students with autism. Courts across the country have upheld more restrictive placements for students with autism. Boomer, Lyman W et. al. Legal Issues Concerning Children with Autism and Pervasive Developmental Disabilities. Behavioral Disorders, 21 (1), 53-61. See also, Oberti v. Board of Education: A Rational View, by Whitted and Davis, Clearinghouse Review, July-August, 1997, at p. 132. Case Law More Restrictive Placement Upheld Residential Placement Upheld as LRE for Student with Autism In re Drew P. V. Clarke County School District, 877 F.2d 927 (11th Cir. 1989). Facts: Drew P., a sixteen year old student in Georgia, was diagnosed at an early age as both autistic and severely mentally retarded. As Drew matured, his behaviors became increasingly aggressive at home and school. In 1985, Drew’s parents placed him at Parkwood, a residential center for students with mental retardation. While at Parkwood, an evaluation was conducted, which determined that Drew required placement in a residential center with facilities for students with autism. Drew’s local school district, however, also conducted an evaluation and determined that a residential placement was unnecessary. After the local school district refused to pay for the proposed residential placement, Drew’s parent’s requested an administrative review. The hearing officer determined that Drew did not require residential placement in a facility for autistic children. On appeal, the state hearing officer sustained the regional officer’s holding. Following this decision, Drew’s parents filed suit in federal court While the federal suit was pending, Drew’s placement was changed to a residential center for autistic children in Tokyo, Japan, and later changed again to another residential school in Boston. In 1987, the federal district court determined that Drew’s educational needs could not be met by the programs available in the Georgia school district, furthermore, it held that the school district must provide a residential placement for Drew, at a center specializing in autism, until his 21st birthday. It also awarded Drew’s parents partial reimbursement for the autistic school placement, but denied reimbursement for Drew’s original placement at Parkwood. The school district appealed this decision. Held: Affirmed, for the parents. The 10th circuit, using the preponderance of the evidence standard, determined that the evidence presented at the district court level properly concluded that a residential treatment center for autistic children was necessary in order for Drew to receive an educational benefit. Reasoning: The appeals court rejected the school district’s argument that a placement at his home school was sufficient to provide Drew an appropriate education. The court found that the parent’s expert overwhelmingly proved that residential placement was necessary for Drew to receive any educational benefit, because Drew must be educated by teachers specially trained in working with autistic children. The court also held that the evidence at trial demonstrated that autistic children require “constant, round the clock, expert educational supervision in order to progress.” Ash v. Lake Oswego School District, No. 7J, 980 F.2d 585 (9th Cir. 1992). Facts: In Ash, the parents of Christopher Ash, a 10-year old child with autism, unilaterally placed him in a private residential setting.[1]Christopher’s parents subsequently demanded reimbursement from the school, even before they asked the district to evaluate him and develop an IEP. Relying on the psychiatrist’s recommendation, the Ash’s chose to place Christopher at the residential facility because his behavior had begun to severely deteriorate, with severe tantrums occurring on a daily basis. Christopher attended this placement for 4 years before his parents requested an evaluation from the district. When the school district denied residential reimbursement as too restrictive, the parents filed for due process. The hearing officer found the district’s IEP to be appropriate, and noted that even though Christopher could maintain better harmony with his family through the residential placement, he did not require the placement to provide him with educational benefit. The hearing officer also reasoned that an autistic child does not require a residential placement unless they present a physical threat to themselves or others, and Christopher did not in this case. Based on this finding Christopher’s parents sought relief in federal court. The federal district court reversed the hearing officer’s decision and supported the parents as to reimbursement at the time of the IEP, but not before. The court found that the focus on determining whether residential placement is necessary must be on whether the placement is required for educational purposes apart form the medical, social, or emotional problems that are severable from learning. Both parties appealed this decision. The school district appealed the award of residential placement and the parents appealed the denial of residential reimbursement for the time before an IEP was developed. Held: Affirmed, Christopher was not capable of deriving educational benefit without a residential placement. Reasoning: The 9th Circuit rejected the school district’s assertion that the district judge lost sight of the “educational benefit” when assessing the sufficiency of their IEP for Christopher and instead measured the IEP in terms of whether Christopher would be successful outside of a classroom setting. The 10th Circuit determined that the district court did examine whether Christopher would derive an educational benefit, and came to the conclusion that the school district could not demonstrate their IEP would provide the type and amount of consistency necessary for Christopher to obtain some educational benefit from its implementation. One of the reasons the court supported the residential placement is because it believed that the school district’s IEP did not adequately address daily living skills, such as toilet training, eating and dressing, and determined that even if these skills were taught, they would be better learned in a residential setting.[2] Segregated Program Determined LRE for Student With Autism Student v. Somerset County Board, 24 IDELR 743 (D. Md. 1996). Facts: The District proposed to place a 10-year old with severe autism and mental retardation at Sarah Peyton School, a school 50 miles from the student’s home. The student is among the 10-15% most severely autistic children. He has a mental age of under 2 years for most functions, and is at a language age of 10 months. In addition, he requires constant supervision for behavior and is not toilet trained. Sarah Peyton School has a staff/student ratio of 3:11, with 5 students per class. It is also attached to a regular school and would provide the student with some interaction opportunities. The student’s parents opposed this placement, arguing for a regular class placement at the student’s neighborhood school, with supplemental aids and services. After losing at due process, the parents appealed to the district court. Held: For the district. The Court upheld the IEP team’s recommendation of continued placement at Peyton. Reasoning: Although the parents argued that the IEP team had “automatically” recommended placement at Peyton based upon the level of services the student needed, the Court found otherwise. Following the analysis of Roncker v. Walker (infra.), the Court determined: 1) Without considering the supplementary aids and services that can be implemented at the neighborhood school, Peyton provided an education superior to full inclusion at the neighborhood school; 2) The services which make Peyton superior cannot feasibly be provided at the neighborhood school. The regular class would be a 4th grade class and there was no indication that the student would benefit in any way from being treated as a regular student in a regular classroom. There would be no attempt to teach the student the regular fourth grade curriculum, and because of his distractibility he could not be educated in a large group. He would require a full time aide and would have to be placed in a section of the classroom where he would receive full time instruction from the aide. Peyton offers substantial benefits to the student because of its structure and smaller class size; 3) The placement at Peyton, with daily interaction with non-disabled students for activities such as lunch. P.E. and assemblies is the appropriate placement. DeVries v. Fairfax County School Board 882 F.2d 876 (4th Cir. 1989). Facts: The mother of Michael DeVries, a seventeen year old boy with autism contested the District’s proposed placement in a vocational center 13 miles from his home, because she wanted him educated in the local public high school. Michael had depressed cognitive functioning, exhibited immature behavior, and needed a predictable environment. The due process hearing officer and district court judge both found that Michael was properly placed at the vocational center. The mother appealed this decision to the 4th Appellate Circuit, arguing that Michael’s IEP does not provide the appropriate public education he is entitled to receive and the district court failed to consider IDEA’s mainstreaming component. Held: For the District. Although DeVries has a desire to be placed at the local high school, the facts do not demonstrate that he would receive an “appropriate public education” at that institution. Reasoning: The Court of appeals noted that they were fully persuaded that the district court correctly concluded that Michael could not be satisfactorily educated in regular classes, even with the use of supplementary aids and services. The disparity was so great between the cognitive levels of the seventeen year old student and his non- disabled peers that the court was concerned that the student would be simply “monitoring” the regular class. Less Restrictive Placement Upheld Residential Placement Rejected in Favor of Private Day Placement; Child Properly Identified as Neurologically Impaired, Not Autistic Schreiber v. Ridgewood Board of Education, 25 IDELR 421 (D. N.J. 1997). Facts: R.S. was an emotionally disabled child who began exhibiting emotional problems in the first grade. Although R.S.’ parents initially rejected an special education evaluation from the school district, they agreed to the evaluation three years after it was originally proposed. The school district child study team examined R.S., and determined she was classified as neurologically impaired (NI). After this evaluation, R.S. was educated in a mainstream classroom for two years. At the beginning of the 1994-1995 school year, R.S.’s parents requested that she be identified as autistic and placed in a residential program. However, the school district proposed a private day program instead. R.S.’s parents requested a due process hearing to determine her appropriate placement. The hearing officer found that the weight of the evidence indicated that R.S. had been properly identified as NI, not autistic, and did not require residential treatment. The school district’s experts proved that while R.S. did exhibit some autistic like behaviors, she had an ability to think and express herself coherently that was not a common characteristic of children with autism. The parent’s own expert admitted that while R.S. required an intensive program, such treatment was available in settings other than a residential program. The parents appealed this decision to a federal district court. Held: For the district. The parents have failed to prove by a preponderance of the evidence that R.S. is autistic or that a residential placement was appropriate. Reasoning: The court, while expressing sympathy for the parents’ dilemma in finding the ideal surrounding for R.S., could not accept the argument that R.S. was autistic and required residential care. The court stated “ the Court appreciates the concerns of R.S.’s parents and their desire to provide her with the best opportunities available. Their search for the most beneficial program for R.S. will most likely be never-ending. The hard work of parents of a disabled child is never done. After careful evaluation of the evidence, however, the court concludes that plaintiffs have failed to show by a preponderance of the evidence that R.S. is autistic or that residential placement is required.” The court also noted that they have given great deference to the findings of the administrative judge, as is required by the statutory standard, and found from the testimony that the parents only presented two doctors who found R.S. as autistic, while the district had 4 doctors who diagnosed her as NI. Parents Request For Residential Placement Denied, Hearing Officer Supports Less Restrictive Placement At a District High School In Re: Scott M., 24 IDELR 1229 (SEA N.H. 1996). Facts: Scott M. was a 17 year old student with multiple disabilities, including severe mental retardation, minimal speech, a seizure disorder, and cerebral palsy. His parents challenged the districts IEP which called for four hours a day of regular education with modifications and a one-to-one aide, 10 hours a week of special education classes and prevocational work settings, speech therapy, occupational therapy, and physical therapy. Scott’s parents requested a residential placement that focused on language development and challenged the district’s classification, arguing that autism should be added to the current classification. Held: For the district. Although Scott did display some “autistic like-behaviors,” his classification was properly designated as mental retardation. Furthermore, the hearing officer found that the district’s IEP was appropriate for Scott’s educational needs. Reasoning: The hearing officer seemed to concentrate his examination of the facts on the various experts each of the parties presented at the hearing. The parent’s expert, an advocate for children with disabilities, argued that Scott should be labeled as autistic and therefore required a residential program that focused on his language needs. On the other hand, the district’s experts, both trained professionals in the field of autism, argued that while Scott’s profile was consistent with a diagnosis of PDD/Autism, these features were also consistent with severe mental retardation. Moreover, whatever “label” attaches to Scott should not dictate educational programming. The hearing officer found the district’s experts to be much more credible than the parents’ and determined that the district demonstrated Scott’s primary disability should be mental retardation. Finally, the hearing officer examined Scott’s progress in his public school and found that the district “has amply demonstrated its unfailing commitment to providing an appropriate education to this youngster which is functional in nature, which is appropriate to his level of development, and that clearly focuses on the transition from the world of school to post high-school, including community living. Self Contained Classroom Too restrictive, Regular Classroom Placement Upheld Hartman v. Loudoun County Board of Education, 24 IDELR 1171 (E.D. Va. 1996). Facts: The parents of Mark, an eleven year old non-verbal student with autism, contested the school district’s decision to change his educational placement from the regular classroom to a self-contained classroom for autistic students. The parents argued that the regular classroom would expose him to a full range of academic subjects and allow him to be educated with non-disabled peers. The district’s self-contained placement was upheld in due process. The hearing officer applied the LRE test from Daniel RR and determined that the self-contained classroom was the appropriate placement because it was located in a regular education school and would provide mainstreaming opportunities, while offering Mark academic instruction and related services from which he could receive benefit. Held: For the parents. The District Court reversed the decision of the hearing officer, finding that while the LRE test from Daniel RR was the proper analysis, the outcome of the case at due process was improper since the evidence supported the conclusion that Mark could derive educational benefit in a regular education classroom with supplementary aids and services. Reasoning: The court looked at the supplementary aids and services that could be delivered in the regular classroom, specifically, a one-to-one aide and a “properly adapted curriculum, as well as the districts inadequate attempts to accommodate Mark in the mainstream. Such failed attempts included insufficient staff training, lack of individuals experienced with autism on the students IEP team, and its failure to follow the advice of those individuals who were properly trained. Personnel changes and the discontinuation of supplementary consulting services by inclusion experts were cited by the court as indications that the district’s inclusion efforts decreased during the time Mark was included in the regular classroom. Additional evidence was presented that Mark was not mentally retarded, and rather his disability primarily affected his ability to communicate. Sufficient weight was given to testimony by Mark’s private tutor that Mark was capable of educational progress. Analysis and Discussion of Trends: While there appears to be a trend towards more inclusive placements for most students with disabilities, the opposite seems to hold true for students with autism. Whether it’s a child’s parents or the school district advocating for a less restrictive placement, the courts tend to find in favor of more restrictive settings. An exception is found in cases such as In re: Scott M. and Schreiber v. Ridgewood Board of Education, where autism eligibility was rejected and the school district was found to provide a comprehensive IEP, or Hartman v. Loudoun County Board of Education, where the court focused on the school district’s inadequate and insufficient attempts at inclusion. As Richard Simpson points out in his article Children and Youth with Autism in an age of Reform, one can only guess at the reasoning for such a paradox regarding autism and the LRE requirement. Simpson theorizes that autism is viewed as an enigma. Children with autism exhibit unique characteristics that often set them apart from their peers with special needs. Autism is perceived by many parents and professionals as so unique that students with autism should receive completely separate specialized interventions and placements. Simpson, Richard L. Children and Youth with Autism in an age of Reform: A Perspective on Current Issues, Behavioral Disorders, 21(1), 7-20. Analyzing the case law dealing with placements for children with autism, it becomes apparent that the courts may also see autism as an “enigma.” This would explain the difference in LRE decisions for children with autism. Specific Educational Methodologies Introduction The selection of specific educational methodologies has traditionally been an area in which the courts will give much deference to the judgment of state and local public education officials. The leading case in this area is Lachman v. Illinois State Board of Education, 852 F.2d 290 (7th Cir. 1988). The Lachman court articulated a position regarding the provision of methodology based on the FAPE analysis set out in Board of Education v. Rowley, 458 U.S. 176 (1982). Based on Rowley, the Lachman court held that as long as a school district is providing a procedurally and substantively correct IEP, parents do not have a right to compel school districts to provide a specific methodology. The Lachman court emphasized the high degree of deference that is properly due to the “educational policy judgments” of state and local public education officials. However, even in light of the Lachman decision, the 1990's have witnessed an influx of cases where the main issue concerns the selection of educational methodology. “Parents who have discovered a “cure” for their child’s disability are demanding specific, often expensive, programs which are not normally available or utilized in public school districts.” Weatherly, Charles L. And Melinda H. Maloney, Burgeoning Issues in Special Education, School Law in Review 1997, 10 (6). As the following cases illustrate, parents of children with autism have been quite successful in persuading the courts to accept their choice of educational methodology over the school district’s. These decisions are not inconsistent with Lachman, but rather, find that the school district has failed in its responsibility to provide appropriate services. This failure, in effect, then opens the door for the parents to propose their own choice of appropriate methodology, and for them to be reimbursed retroactively. Provision of Specific Educational Methodology Upheld By Court Highbridge Board of Education, 24 IDELR 589 (SEA 1995). (Lovaas) Facts: The parents of J.S., a five year old child with autism, sought reimbursement for expenses associated with an in-home Lovaas training program, the Bancroft School Young Autism Project, and the continuation of this training with a view towards eventual mainstreaming. The school district had previously provided J.S. with a placement for 10 hours daily at a private school for autism, which implemented the Lovaas technique. However, J.S.’s parents supplemented the district’s placement with 30 hours of home based Lovaas training. When the private placement was no longer available, the district proposed a kindergarten placement in a regular classroom, with a full-time special education teacher trained in special education as his personal aide and a few hours of Lovaas home instruction. J.S.’s parents felt that J.S., who engaged in severe self-injurious and aggressive behavior, required intensive home based Lovaas training in order to benefit from special education. Holding: For the parents. The administrative law judge determined that the least restrictive environment where J.S. could obtain a free and appropriate education which offers some educational benefit is at home with Bancroft-program instruction. Reasoning: The judge determined that the district had not shown that J.S. has been able to generalize the information learned at school to his home environment. Therefore, J.S. was far from prepared for the “disorienting” experience of a regular classroom, even with the assistance of a full-time special education teacher. Furthermore, mainstreaming, while a notable goal, should be explored “gingerly,” without harming J.S.’s progress in the home program. The home instruction itself should be seven days a week, ten hours a day, through the intensive structured, Lovaas-method provided by the Bancroft program. Delaware County Intermediate Unit #25 v. Martin and Melinda K., 831 F.Supp. 1206 (E.D. Penn. 1993). (Lovaas) Facts: Paul, a 2 year old boy diagnosed with PDD, was enrolled at a private special needs center by the county mental health and mental retardation agency. When Paul turned three years old, the educational costs became the responsibility of the local educational agency (LEA). The agency proposed continuing Paul’s placement at the special needs center with partial funding provided by the school district. At this time, however, Paul’s parents became interested in obtaining Lovaas based training, and withdrew him from the special-needs program in order to educate Paul through the Lovaas program. When the educational agencies failed to develop an IEP more than halfway through the school year, Paul’s parents requested a due process hearing, seeking approval of the placement they had selected. Soon thereafter, the agencies proposed a placement at another special-needs center which was based on the principles of the TEACCH program. Paul’s parent’s rejected this placement and obtained a due process hearing. The hearing officer ruled in favor of the district, finding the proposed placement in the TEACCH program was appropriate, but did award the parents compensatory education for the delay in preparing the IEP. The parents appealed this decision. Holding: For the parents. The educational agencies failed to offer Paul an appropriate placement, therefore Paul was entitled to Lovaas training at public expense. Reasoning: The court found many inadequacies with the proposed placement for Paul, including not enough time in the TEACCH program, failure to develop an timely, adequate IEP, and failure to identify a satisfactory mainstreaming component. The court also determined that Paul would “suffer significant regression if removed from the Lovaas program at this point.” Therefore, the proposed educational program was not reasonably calculated to provide an appropriate education for Paul. Capistrano Unified School District, 23 IDELR 1209 (SEA CA. 1995) (Lovaas) Facts: A 4-year old student with Autism and developmental delays in language, motor, cognitive, and social skills was placed, by the school district, in a special day class for children with severe disabilities. Although the student’s parents initially agreed to the placement, they contested the school district’s refusal to include behavior therapy in the student’s IEP. The student had begun to receive private, outside, 1:1, Lovaas behavior modification therapy, at the parent’s expense, and was making progress. Eventually, the parents also began to find fault with the education the student was receiving as well, claiming that the program was too challenging and did not provide the student with educational benefit. Finally, the parents requested a due process hearing, arguing that the student required the 1:1, Lovaas behavior therapy in order for him to benefit from his education. The parents further asserted they were entitled to reimbursement for the costs they incurred for the private Lovaas behavior therapy. Held: For the parents. The school district was ordered to reimburse the parents for the cost of the therapy and to provide 25 hours of 1:1, in-home therapy per week to the student throughout the school year. Reasoning: First, the hearing officer rejected the school district’s argument that the student did not exhibit autistic-like behaviors, and therefore did not require behavior therapy. The officer determined from the evidence presented that the student did exhibit autistic-like behaviors, and that these behaviors must be taken into account in determining his unique and individual needs. Next, after examining his individual needs, the officer found that the student required 1:1 instruction in a structured environment, extensive language therapy, and instruction in social skills. Therefore, given these needs, the officer concluded that the district’s placement was entirely inappropriate. All of the children in the class received the same level of instruction, regardless of their needs, and this level exceeded the students abilities. Furthermore, the program lacked 1:1 instruction and appropriate instruction in language skills. In contrast, however, the officer determined that the student was receiving educational benefit from his appropriate, in-home Lovaas therapy and this program was designed to meet his unique and individual needs. Finally, the hearing officer found that since the district was not able to provide an appropriate program from which the student could derive educational benefit, the parents were entitled to the Lovaas therapy they requested. Related Issues Dealing With Students With Autism Specific Staff Requirements Staff Training Not a Related Service Under IDEA Sioux Falls School District v. Koupal, 526 N.W. 2d. 248 (S.D. 1994) Facts: The mother of Brett Koupal, a six-year old boy with severe autism, appealed the circuit court’s judgement rejecting her IDEA challenge of the school district’s refusal to include specific teacher training in her child’s IEP. Brett received special education from the Sioux Falls School District, which included instruction through the TEACCH method, a program specifically designed for children with autism. In both of Brett’s past IEPs his mother attached typed pages, identified as “Other Related Services”, establishing a requirement that any teacher working with Brett receive comprehensive training in the TEACCH method. In the summer following his second year in school, Brett’s mother became aware that his summer school teacher had not received TEACCH instruction. Although the school district did subsequently arrange for this teacher to receive TEACCH training, they also announced their intent to exclude from Brett’s IEP language specifically requiring the TEACCH course for his teachers. At the hearing initiated by Brett’s mother, the hearing officer determined that teacher training could be included in an IEP as a related service and it was inappropriate for the school district to remove the requirement from Brett’s current IEP. The school district appealed, and, on independent review, the circuit court reversed. Brett’s mother appealed to the South Dakota Supreme Court asserting that the district court erred in holding that specific teacher training could not be mandated in Brett’s IEP as a related service and in finding immaterial the teacher training language in the two previous IEPs. The mother also appealed the denial of attorney’s fees. Holding: The South Dakota Supreme Court affirmed the decision of the circuit court based upon an examination of IDEA’s definition of related services. The court acknowledged that under IDEA an IEP must meet the child’s identified special education and related services needs. However, upon close examination of what constitutes a related service, it determined that the definition does not include teacher training. Reasoning: The court reasoned that while the list of services identified as related services may not be all inclusive, the scope of the listed services clearly fails to encompass specific teacher training. Therefore, because teacher training is not a related service under federal law, it cannot be required in an IEP. Addressing the mothers argument that inadequately trained teachers may deprive her disabled son of a chance for maximum progress, the court noted that although providing capable teachers may be implicit in IDEA, Congress left teacher competency in the control of school administrators. Next, the court determined that the district court did not err in finding the contents of the prior IEPs irrelevant to determining what should be included in his present IEP. The court stated that it could find no requirement in IDEA which binds school authorities or parents indefinitely to the terms of an IEP. Teacher Assistant Not Required To Have Specific Training In Particular Type Of Behavior Management Conejo Valley Unified School District, 23 IDELR 1081 (SEA 1995) (Lovaas Training Rejection) Facts: A seven year old student diagnosed with autism was mainstreamed into a regular first-grade class with the assistance of a full time instructional assistant. A daily communication journal shared between school and home detailed numerous incidents of the student’s misbehaving at school, including incidents of pinching and hitting other students, spitting, and throwing objects. The student’s parents noted that the student ceased exhibiting such behaviors at home when the family began intensive Lovaas training with him. They subsequently requested a due process hearing to determine whether the student’s current instructional assistant required training in Lovaas behavior management in order to meet the student’s needs. Held: For the district. Reasoning: While the student’s assistant must have knowledge of autism, appropriate and inappropriate behavior, and appropriate behavioral modification techniques, she was not required to obtain training in a particular type of behavioral management. The district provided evidence that the student’s current instructional assistant had been sufficiently trained to work with him. Furthermore, the district also provided evidence from the student’s teachers that his behavior had improved and he had made progress since entering the first grade class. Therefore, the hearing officer concluded that the instructional assistant had sufficient training to meet the students needs. Facilitated Communication School District Ordered To Investigate Facilitated Communication Techniques For Student With Autism LeMars Community School District, 19 IDELR 284 (SEA 1992) Facts: Andy, a 16 year old boy diagnosed with autism, was first identified as in need of special education at the age of three, and began receiving services in a self-contained classroom. In 1992, Andy’s parents began to find dissatisfaction with the services Andy was receiving from the LeMars School District. In addition to concerns that Andy’s IEP did not afford him appropriate integration opportunities, his parents also argued that the school should implement facilitated communication strategies in order for Andy to fully benefit from the integration experiences he was receiving. When the district refused the parents requested due process. Held: For the parents, in part. The hearing officer found that Andy’s current placement was appropriate, but ordered the district to incorporate facilitated communication strategies into Andy’s program. Reasoning: The hearing officer closely examined the benefits of providing facilitated communication to Andy. He noted that Andy had been evaluated regarding the potential for benefiting from facilitated communication in 1992, and it was determined that this strategy had potential for adding to Andy’s ability to communicate. Furthermore, the officer found that the equipment needed for facilitated communication would probably qualify under the category of assistive technology, and thus must be evaluated on a case-by-case basis. School District Not Obligated To Accept Independent Education Evaluation (IEE) Conducted Using Facilitated Communication Jackson Public Schools, 23 IDELR 756 (SEA 1995) Facts: John, a thirteen year old boy with autism began receiving special education services at the age of three. At the start of his fifth grade year, John was placed in a regular elementary school, with his time divided between a regular fifth grade classroom and a self-contained special education classroom. John had the support of a teaching assistant in the regular grade placements, and has used facilitated communication. During this year, the school district conduced two diagnostic evaluations which placed John’s functioning in the moderately retarded range. The evaluations also determined that John’s academic performance, self-help skills, language skills, and social skills were at the pre-school level. Dissatisfied with these results, John’s parents obtained an independent evaluation (IEE). While the school district’s evaluation was based partially on facilitated communication, the IEE was based entirely on facilitated communication. The IEE concluded that John was functioning in the range of normal intelligence and academic skill in reading and arithmetic for his age. Disagreeing with the district’s evaluation in light of their IEE, the parents requested due process. Held: For the District. The school district’s evaluations accurately identified John as mentally retarded and functioning at a pre-school level, even with facilitation. Reasoning: The hearing officer found that the only indication of cognitive functioning above the mentally retarded level was the IEE obtained by the parents. All other psychological testing, from the past and present, placed John in the mentally retarded range. The hearing officer did acknowledge the amount of controversy regarding facilitated communication, and noted that its validity was supported based on the source. The officer then concluded that federal and state law mandated the use of a variety of sources, and that in this situation, the school district’s determination was based on overwhelming evidence from multiple sources. This was in sharp contrast to the parent’s IEE, which was based on only a single test. Furthermore, the IEE evaluator both administered the test and facilitated the responses, possibly creating evaluator bias. Specific Behavior Interventions Use of Timeout Room Appropriate For Student With Autism Boerne Independent School District, 25 IDELR 102 (SEA 1996) Facts: Lauren was a thirteen year old girl who received special education, in a self-contained placement, as a mentally retarded, speech-impaired, and autistic child. Lauren’s seventh grade IEP included a behavior management plan which called for the use of time-out procedures, including the use of a time-out room. The time- out room used for Lauren is immediately adjacent to her classroom. A teacher or teacher’s aide is stationed at the door leading in and out of the time-out room, and any student placed in the room is always visible from a window in each of the doors. Only five days into her seventh grade school year, Lauren’s parents withdrew her from school after Lauren injured herself while trying to climb out a window in the time-out room. At a due process hearing regarding this issue, Lauren’s parents argued that the use of the time-out room was inappropriate and unsafe, and therefore Lauren’s behavior management plan was inappropriate. Held: For the district. The hearing officer determined that the behavior management plan incorporated into Lauren’s IEP, which included the use of these time out procedures, was appropriate. Reasoning: The hearing officer noted that the evidence did not support the parent’s contentions that the use of the time-out room was entirely inappropriate for Lauren. The evidence presented at the hearing demonstrated that the behavior management plan was working in the few short days that Lauren attended school. Therefore, Lauren’s parents failed to meet the burden proof to demonstrate that the implementation of Lauren’s IEP by the district was inappropriate or that procedural violations occurred. Use Of Blanket Wrapping Technique Upheld Heidemann v. Rother, 84 F.3d 1021 (8th Cir. 1996) Facts: Cherry Heidemann was a nine year old non-verbal, mentally, and physically disabled girl at the time of this action. Cherry’s disabilities included severe mental retardation, visual and hearing impediments, epilepsy, and learning disabilities. At times, Cherry’s teachers would utilize a behavior management technique known as “blanket wrapping” on Cherry. Blanket wrapping involved binding her body with a blanket in order to immobilize Cherry’s arms, legs, and hands. This technique had been recommended by the school physical therapist in order to provide Cherry with “security and comfort,” and because the use of this treatment would also provide her “warmth and stability and would have a calming effect on her.” In 1993, Cherry’s parents withdrew her from school due to the use of blanket wrapping, and subsequently filed a 1983 claim against the school district, its employees, board members, and the physical therapist who recommended the technique. Cherry’s parents argued that the blanket wrapping technique was used as a means of physical restraint. They allege that Cherry was “wrapped against her will for periods of one and a half hours or more,” and that on the day prior to her withdrawal from school, Mrs. Heidemann allegedly found Cherry “blanket wrapped on the floor, with flies crawling in and around her mouth and nose.” Although the Heidemann’s had initially approved the use of the blanket wrapping, the argued that they were unaware that it was being used in this manner. Holding: The circuit court held for the school district. Reasoning: First, the court found that the blanket wrapping technique was not an unreasonable bodily restraint that violated Cherry’s constitutional rights. Next, the court found that even if the technique was a “substantial departure” form professional norms, which the court determined it was not, the district employees would not have known so, and therefore have qualified immunity. Similarly, the parents could not maintain a Rehabilitation Act claim because the defendants “did not depart grossly from acceptable standards among qualified professionals.” Finally, the parent’s could not maintain an IDEA claim, because they were seeking monetary damages, and under IDEA the prevailing party is precluded from receiving monetary damages. Thus, the Circuit Court found that the defendants were entitled to qualified immunity on all of the parents’ claims. Use Of Aversive Stimulation Possible Use Of Aversive Stimulation Endorsed by Hearing Officer Phelan v. Bell, 8 F.3d 369 (6th Cir. 1993) Facts: The mother of Terry Phelan, a severely disabled eighteen year old boy, brought an action under IDEA to contest the school district’s refusal to use a controversial form of electric shock therapy to control Terry’s behavior. Terry Phelan engages in severe Self-Injurious Behavior (SIB), by striking his head up to 120 times per minute. In 1989, Terry’s mother, frustrated that the school district was not sufficiently addressing Terry’s SIB, began to investigate alternative methods to control the SIB. Eventually, she discovered the Self-Injurious Behavior Inhibiting System (SIBIS), an electronic device that straps to the head and generates a mild, brief electrical shock in response to each instance of SIB. At Terry’s IEP meeting, after the school district proposed an IEP that would have continued the use of prior ineffective programs, Terry’s mother proposed the use of SIBIS. After the school district refused to consider SIBIS, Terry’s mother brought this IDEA action. Although the administrative hearing officer did not order the school district to use the SIBIS program on Terry, the officer did find that its use would not violate state or federal law, and added that the device should only be used after “all reasonable alternatives had failed.” Later that year, Terry’s mother filed a motion for attorney’s fees under IDEA. The district court granted her motion, but awarded her only 25% of the fees, finding that she only prevailed on one of the four issues presented at the hearing. Both parties now appeal the award of attorney’s fees. Held: For the parent. The court held that as the prevailing party at hearing, she is entitled to 100% of attorney’s fees. Reasoning: Upon examination of the outcome at the hearing, the court determined that the parent’s action resulted in a marked change in the legal relationship between the parties in a number of ways. First, the parent succeeded in obtaining a determination that SIBIS was a viable option for Terry, both legally and in actuality. Although the SIBIS is not presently “required” for Terry, it is one of the options that should be considered. Second, the parent’s persistence brought about a definite change in Terry’s legal relationship with the defendant school district. Before the due process hearings, defendant’s proposed merely to continue an IEP that was unable to address, let alone reduce, Terry’s SIB. Now, the defendants are required to implement a new IEP with new approaches to Terry’s SIB. “Based on [the parent’s] success on the possible use of SIBIS and her role as a catalyst for the new IEP for Terry, we hold that [the parent] is a prevailing party.” Therefore, Terry’s mother was entitled to 100% of her attorney’s fees. School District Not Required To Consider The Use Of Aversive Stimulation Salinas Union High School District, 22 IDELR 301 (SEA 1995) Facts: The parents of a seventeen year-old deaf and autistic student proposed the use of an aversive stimulation device, the Self Injurious Behavior Inhibiting System (SIBIS), to reduce his self injurious behaviors. Specifically, the student engaged in “flapping” at his ears with his hands and biting his hands. Both of these behaviors were known to bruise, redden, and/or break the skin, at times to the point of drawing blood. After receiving education in the home for awhile, the student was gradually transitioning into a program for the hearing impaired at a district high school. When the district rejected the use of SIBIS for this student, his parents sought a determination that the use of SIBIS was a necessary related service in order to ensure that the student received FAPE. Held: For the district. The district is not required to use the SIBIS as part of the student’s school program in order to provide him with FAPE. Reasoning: The hearing officer noted that the evidence presented at hearing indicated that the student was making significant academic and social progress in the district’s behavior plan. The school was successfully utilizing a technique called Professional Assault Response Training (PART), that involved temporarily restraining the student’s hands and legs. Furthermore, the evidence was clear that the student’s behavior was not infilicting significant injury on himself, and he was sucessfully achieveing educational benefit. Therfore, the SIBIS device was not a necessary related service for the student to receive FAPE. Facilitated Communication and the Criminal Justice System Fraud Charges Not Maintained Against Supporters Of Facilitated Communication Following Dismissed Child Abuse Charges Storch v. Syracuse, 629 N.Y.S.2d 958 (1995) Facts: Jenny Storch is autistic and non-verbal. In 1991, an aide at Jenny’s school reported that Jenny had claimed to be sexually assaulted by her father. Jenny was alleged to have communicated this information through the facilitated communication used at the school. Upon learning of this information, the school reported the accusation to the authorities, and a petition was later raised against Jenny’s father for child abuse. At the Family Court hearing, the judge determined that facilitated communication was not generally accepted as reliable in the scientific community, and refused to accept the testimony elicited by the facilitated communication. Following this determination, the petition was withdrawn and the proceeding discontinued. Thereafter, Jenny’s parents filed a claim in federal district court, for fraud and other claims but essentially arguing that FC was a hoax, against a number if parties, including the teacher’s aide who reported the abuse, a professor who was a leading advocate of facilitated communication, and the university where he taught. After this claim was dismissed for lack of subject matter jurisdiction, the parents refiled in state court raising essentially the same claims. The university and the professor moved for summary judgment. Held: For the professor and the university. Use of Testimony Elicited By Facilitated Communication Upheld by Court in Child Abuse Case State v. Warden, 22 IDELR 436 (KS. Sup.Ct. 1995) Facts: Through the use of facilitated communication, a twelve year old student with autism and severe or profound mental retardation alleged that he had been sexually abused by an employee at the residential school he attended. Although the employee confessed the crime to the police and admitted it to a co-worker, he denied both statements at trial. At the trial, the student again used facilitated communication to testify against the employee. After the jury found the employee guilty of indecent liberties with a child, the employee appealed, raising objections to the use of facilitated communication during the trial. Held: For the state. Reasoning: Although the court initially rejected that the statements elicited through the use of FC were scientific evidence, it reasoned that the FC testimony was valid regardless. Because FC is just a method of communication, it requires no scientific interpretation and lay jurors may be relied upon to interpret its results. Therefore, the test of whether FC is scientific evidence and accepted in the scientific community is inapplicable. Furthermore, the jury was able to observe the student’s use of FC and could decide what weight, if any, to accord the FC testimony. AUTISM Requests For LOVAAS- Based Programs Awarded:
Private Placements For Students With Autism Awarded:
[1]Under the newly amended IDEA, parents lose their right to seek retroactive reimbursement if they fail to notify the district at least 10 days in advance of their intention to privately place and seek funding. [2]Now, IDEA’s purpose has been slightly elevated - at 20 U.S.C. 1400(c)(5)(E)(ii), part of its goal should be to prepare students to lead “independent adult lives to the maximum extent possible (emphasis added),” and at §1400(d)(i)(A), to prepare students for employment and independent living. |
