HOT TOPICS IN AUTISM AND EDUCATION:
The top five legal issues
by
Caryl Andrea Oberman, Esq.*
As we enter the spring of 2013, there are five issues that most significantly
influence the education of students with autism at various points in the education
life cycle.
1.
The new definition of autism in the DSM 5 (release scheduled for
May 2013).
The Diagnostic and Statistical Manual (DSM) is a publication of the
American Psychiatric Association that is the standard reference for identifying and
diagnosing mental and emotional disorders. It provides a common set of criteria for
use by professionals working with affected individuals. Rather than the breakout
definitions in the current DSM IV (Aspergers Syndrome, PDD-NOS, etc.), there will
be a single diagnostic category of Autism Spectrum Disorder (ASD), broken down by
severity of symptoms.
The new DSM 5 definitions will not, at least for now, affect the definition of
autism in the IDEA [34 C.F.R. Section 300.8(c)(1)(i)]:
Autism means a developmental disability significantly affecting verbal
and nonverbal communication and social interaction, generally evident
before age three, that adversely affects a child’s educational
performance. Other characteristics often associated with autism are
engagement in repetitive activities and stereotyped movements,
resistance to environmental change or change in daily routines, and
unusual response to sensory experiences.
There is no category for PDD-NOS or for Aspergers Syndrome in the current
IDEA statute or regulations.
Some states have passed or introduced laws to make sure that the education
definitions will not change. Pennsylvania is not one of them.
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Any student currently receiving services under the category of autism must
continue to receive them unless and until the IEP and NOREP are changed
consistent with due process procedures.
2.
Early intervention and preschool inclusion
In Pennsylvania, the cases are split on whether there are circumstances
under which an early intervention agency must not only provide services to a child
with autism in a typical preschool environment, but also pay for the typical
preschool.
In the case of BD, Montgomery County Intermediate Unit, the Hearing Officer
held that the IU, having failed to offer a typical preschool to a student, had to
reimburse his parents for the typical preschool of their choice. Special Education
Decision 11162-0910AS, 5/8/2010. The Hearing Officer in the case of J.H., Bucks
County Intermediate Unit, Special Education Decision 01271/09-10KE, 12/13/2010,
reached the opposite conclusion, holding as a matter of law that payment for a
typical preschool was not required.
On February 29, 2012, the United State Department of Education Office of
Special Education and Rehabilitative Services (OSEP) issued a “Dear Colleague”
letter to provide guidance on this issue. Although OSEP concludes that preschool
kids covered under the IDEA have a right to placement in the least restrictive
environment, and that “if a public agency determines that placement in a private
preschool program is necessary for a child to receive FAPE [a free, appropriate
public education], the public agency must make that program available at no cost to
the parent,” IU attorneys are still interpreting this to preclude requiring IUs to pay
for typical preschool. The federal courts have not yet decided the issue, and it is one
to watch.
3.
Meaningful Education Benefit
How much is enough? If a child is capable, with appropriate services, of
learning fifty new words in a school year, is it enough to give him fewer services and
to set and meet a goal of thirty words? If a student makes a year’s worth of
progress in a year, is that enough, even if with more and better services she could
reasonably be expected not only to make a year’s worth of progress but to close a
part of the gap separating her from grade-level performance?
In 1982, the United States Supreme court decide the case of Board of
Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176 (1982).
Amy Rowley was a student with a hearing impairment, placed primarily in typical
classes. Without a sign language interpreter, she was not only moving from grade
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The Law Offices of Caryl Andrea Oberman, LLC • 705 Easton Road • Willow Grove, PA 19090 •
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to grade, but also doing better academically than most of the hearing kids in her
class. Her parents argued that her grades would improve with interpreter services,
and that she had a right to reach her full potential. The Court ruled that her
education was “adequate”, and that she was not entitled to more. She was entitled
only to a “basic floor of opportunity.”
Since 1982, some local educational agencies have used Rowley to argue that
even small amounts of benefit are enough to meet the standard of appropriateness.
In Central Susquehanna Intermediate Unit v. Polk, 853 F. 2d 171 (3d Cir. 1988), a
case involving a far more disabled student than Amy Rowley, the Third Circuit
Court of Appeals, whose decisions are binding on Pennsylvania, New Jersey and
Delaware, held that “trivial” benefit was not enough, and that the IDEA required
the provision of an education that would confer “meaningful benefit.”
More recent cases have focused on what meaningful benefit means. In D.S. v.
Bayonne Board of Education, 602 F. 3d 533 (3d Cir. 2010), the Court held that a
student with learning disabilities who was getting good grades in special education
settings was still entitled to the more intensive private program sought by his
parents because there was a “disconnect” between the District’s assessment of the
student’s ability in the special education setting and his performance on
standardized achievement tests.
In Breanne C. v. Southern York County School District, 732 F. Supp. 474
(M.D. Pa. 2010), the federal District Court held that in order for there to be
meaningful educational benefit, a student’s IEP must be designed to address and to
offer the student a chance to make reasonable progress in all relevant domains
under the IDEA: not only academics, but also behavioral, social and emotional
domains. Significantly, the Court also held that a student’s IEP must be tailored to
his or her unique, individual needs consistent with the student’s potential.
In Leighty v. Laurel School District, 457 F, Supp. 2d 546 (W.D> Pa. 2006), the
District Court held that making a year of progress in a year was “meaningful”, and
that a school district was not required to provide education that would close the gap
between the student’s progress and grade level.
Every time Congress has reauthorized the IDEA, it has strengthened its
statement that the purpose of special education is to provide students with
disabilities, not just with access to classrooms, but with the skills to gain access to a
full life in the neurotypical world. Congress has increasingly stressed access to
typical classes, typical curricula, typical environments and typical jobs. Congress
has also stressed the requirement to use research-based interventions, many of
which have been shown to enable students to close the gap. Nevertheless, most
courts have ignored what appears to me, and to many others, a Congressional
mandate to provide services which, while not necessarily “maximizing” a student’s
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potential, still sets goals and delivers services in accordance with that potential.
Litigation in this area will continue.
4.
Behavioral support services in schools
It is well-established that education means more than academics, and that it
encompasses a student’s emotional and behavioral issues as well. Because services
to address those issues may be medically necessary as well as educationally
necessary, it is not uncommon for students to receive behavioral services both
through their IEPs and through Medical Assistance or private insurance. This dual
system raises questions about coordination of services, funding, access, and
accountability.
Both the behavioral health system and the education system have
responsibility for providing appropriate behavioral support services. Neither can
abdicate its responsibility to the other. However, it is often in the interest of a child
to have those services provided by a single team, and it is always in the interest of a
child to have those services well-coordinated so that messages are not mixed and
approaches, expectations, and data collection are consistent.
If a student needs 1:1 behavioral support services in school in order to
achieve meaningful educational benefit, it is the school district’s responsibility to
guarantee that those services are provided. The school district may choose to make
them available through its own staff, or through a behavioral health provider
agency. In any case, the services must be free to the parents and child (no co-pays,
no service caps) and calculated to support the IEP and its goals. School district can
ask, but cannot require, that parents allow them to use a child’s Medical Assistance
benefits to help pay for those services. If a parent does not give permission to use
Medical Assistance, the district cannot refuse to provide services on that basis.
Moreover, regardless of what agency is scheduled to provide the services, the
district is responsible for any failure to provide them as a part of a free, appropriate
public education. The need for behavioral services, for a functional behavioral
assessment, and well-designed Positive Behavior Support Plan should be clearly
reflected on the IEP itself. If there are several agencies involved, the IEP should
also reflect how and when services will be coordinated. Counseling services, direct
instruction and parent training can also be part of the IEP.
If the district does not agree that the behavioral health services a parent
seeks are educationally necessary, the parent may still seek to have the district
allow behavioral health professionals to work with the student in school. A district
may not be obligated to allow this on an ongoing basis, although there is a small but
growing body of case law that does require districts to allow behavioral health
agencies reasonable access in order to facilitate appropriate evaluations.
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The Law Offices of Caryl Andrea Oberman, LLC • 705 Easton Road • Willow Grove, PA 19090 •
(215) 830-5025 • Fax: (215) 830-5027 • edlaw@caryloberman.com • www.caryloberman.com
It is not unusual for behavioral health agencies to recommend more
restrictive settings (e.g., partial hospitalization programs) as medically necessary.
School districts nevertheless remain responsible for offering services in the least
restrictive appropriate setting.
5.
Transition to adult life
Starting in the IEP year in which the student turns fourteen, the IEP must
include a plan for transition to adult life. The plan must include services geared
toward addressing the skills a student will need to succeed in post-secondary
education or training, employment, and community living. This IDEA requirement
has been strengthened and expanded each time Congress has reauthorized the
IDEA. It has broadened out the definition of education to include what happens at
home and in the community as well as what happens at school, and is a powerful
tool for addressing the needs of the whole student.
Very early on, there was a bad decision in the 9th Circuit Court of Appeals
that held that the transition requirement added very little to the other
requirements of the IDEA. In my view, that was and continues to be bad law.
However, few courts have examined its analysis in a meaningful way.
Attorneys representing kids with special needs continue to press on this
issue. The age of twenty-one should be the start of a well-prepared and positive
entrance into adulthood, not a step out of the door of high school and over a very
steep cliff.
*Caryl Andrea Oberman is the principal of the law firm that bears her name. For more than three
decades, her practice has concentrated on the legal needs of persons with disabilities and their
families, and of gifted students. She has lectured and published extensively in the areas of civil rights,
education rights, and estate planning, especially for families of children with disabilities. Formerly
law clerk to the Hon. Merna B. Marshall (Philadelphia Court of Common Pleas), director of the Legal
Department of Philadelphia Association of Retarded Citizens, senior staff attorney at the Education
Law Center and litigation consultant at the Disabilities Law Project, she has served on the boards of
numerous agencies advocating for children and adults with disabilities and serves as a hearing
officer for the Office of Vocational Rehabilitation. She is the chair of the Special Education
Committee of the Education Section of Pennsylvania Bar Association. Ms. Oberman has been an
adjunct professor of School Law in the graduate education programs of Arcadia University, Holy
Family University, Cabrini College and Antioch University. She received her B.A. with Honors in
Political Philosophy from Syracuse University in 1971 and her J.D. from Villanova University School
of Law in 1974. Her firm serves families in the eastern half of Pennsylvania, with offices in Willow
Grove (Montgomery County).
© Copyright 2013, Law Offices of Caryl Andrea Oberman, LLC
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The Law Offices of Caryl Andrea Oberman, LLC • 705 Easton Road • Willow Grove, PA 19090 •
(215) 830-5025 • Fax: (215) 830-5027 • edlaw@caryloberman.com • www.caryloberman.com