Education of Children with High Functioning Autistic Spectrum Disorder: WHEN FINE ISN’T GOOD ENOUGH

1
Education of Children with High Functioning
Autistic Spectrum DisorderWHEN FINE ISNT GOOD
ENOUGH

• Lisa K. Krizman, Esq.
• Law Office of Lisa K. Krizman, LLC
• New Jersey
• COPAA Annual Conference
• March 12, 2005
• Atlanta, Georgia

2
Why this Presentation?

• ______________________________
• This information is being provided as general
  educational and informational purposes only and
  NOT for the purpose of providing legal advice.
  It is not to be used as a substitute for personal
  legal counsel.

3
Presentation Overview

• Difficulties in Advocating
• What to Advocate For
• The Law
• Sample IEP Goals
• Working with Experts
• Sample Advocacy Script

4
High functioning

• Significantly Verbal to Very Verbal
• Average IQ and above
• Behavior can be appropriate at times
• Diagnosis includes High functioning

5
High Functioning

• Newsweek (2/28/05) defines
• Aspergers- Relatively strong verbal skills but
  trouble reading social situations and sharing
  enjoyment, obsessive interests. Children can be
  verbal fanatics, social pariahs, suffer
  debilitating fits of anxiety and depression.
• PDD-NOS- Known as atypical autism, kids have
  less severe social impairments.

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Difficulties in Advocating

• Educators tend to DISMISS HF ASD children as
  doing fine.
• Kids with Aspergers, on the high functioning
  end of ASD, may be OVERLOOKED until well into
  elementary school. (Newsweek, 2/28/05).

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Just What Does Fine Mean?

• Is the child doing fine based on being given
  the same goals, over and over again?
• Is the child doing fine because the educator is
  looking only at the high level skills, not the
  low ones?
• Is fine based on the educators low
  expectations for that type of child?

8
Difficulties in Advocating

• The latest rage in the media.
• In fiction and nonfiction, in the past portrayed
  as dangerously brilliant psychopaths, geeks,
  personality variants, "mysteriously gifted.
• Recent media indicate a greater recognition of
  disorder, but tends to also dismiss difficulties.
  
• Your educators read this media.

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December 2001

• The Geek Syndrome
• Autism - and its milder cousin Asperger's
  syndrome - is surging among the children of
  Silicon Valley. Are math-and-tech genes to
  blame?
• By Steve Silberman

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July 2003 A World of Their Own
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September 2003
12
February 2005
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February 2005 NBC Autism Series
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Response to NBC Series

• AN OPEN LETTER TO NBC CHAIRMAN BOB WRIGHT . .
  .March 7, 2005Dear Chairman WrightWe are
  representatives of seven Autism organizations who
  have watched NBCs recent intensive coverage of
  Autism with interest...
• We would like to see more attention given to
  issues affecting children and adults at all
  levels of the Autism Spectrum........ On the
  higher-functioning end (including Asperger
  Syndrome) problems may be quite different, but
  just as frustrating.  The remarkable potential of
  some individuals with Aspergers was highlighted,
  but that potential represents possibility and not
  the overall reality of the many difficulties
  these adults face.

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Difficulties in Advocating

• Nightmare at Recess.
• A disorder that may not be readily observed by
  adults, but is very observable by peers.
• What happens at recess, the lunch room, the
  locker room?

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Difficulties in Advocating

• The child is bad.
• Willfully misbehaves
• Plain Lazy
• Just seeking attention
• Manipulative
• A perfectionist
• Just immature

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Difficulties in Advocating

• You are Bad.
• Too emotional
• Overprotective
• You fail to discipline adequately, consistently,
  
• properly, etc., etc.
• Your low expectations cause the childs
  behavior
• You are asking for too much
• You dont know that much

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Difficulties in Advocating

• HF ASD children's needs are not that bad
  compared to other Spectrum children.

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Difficulties in Advocating

• Theyre All Alike.
• All Autistic labeled children lumped together
  in one program.

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How to Determine What to Advocate For

• You are the Best Expert on your child
• Research
• Learn the law
• Recommendations by the Child Study Team
• Opinions by Independent Experts

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The Law

• Free appropriate public education (FAPE) in the
  least restrictive environment (LRE).
• Special education must meet the childs unique
  needs and prepare them for employment and
  independent living.

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Determining an Appropriate Education.

• The FAPE
• Permits the child to benefit from the
  instruction.
• Provided at public expense
• Meets the States educational standards
• Approximates the grade levels used in the States
  regular education
• Comports with the childs IEP
• Provides some educational benefit

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How much Benefit is enough?

• Any benefit is not enough
• IPE is likely to produce progress
• Benefit is not trivial
• IEP is reasonably calculated to confer a
  meaningful educational benefit,
• IEP offers significant learning
• Benefit must be gauged in relation to the childs
  potential. (Third Circuit)
• Appropriate
• Childs Potential

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What About Grades?

• IEP must be reasonably calculated to enable the
  child to achieve passing marks and advance from
  grade to grade.
• With HF ASD children, the mere ability to achieve
  passing marks does NOT automatically mean child
  is receiving FAPE.

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Least Restrictive Environment

• LRE means children with disabilities should be
  educated to the maximum extent appropriate with
  children who are not disabled.
• Disabled children should only be removed from a
  regular educational setting when education in
  regular classes with the use of supplementary
  aids and services cannot be achieved
  satisfactorily.

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Least Restrictive Environment

• Strong presumption for mainstreaming because
  of social benefits.
• The Sixth Circuit (Ohio, Michigan, Kentucky, and
  Tennessee) Where a separate placement is
  considered superior, the court will evaluate
  whether the services that make that placement
  superior could feasibly be provided in a
  mainstream setting. If so, then a segregated
  placement would be inappropriate, if the benefits
  of mainstreaming are far outweighed by the
  benefits of the non-segregated setting.

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Least Restrictive Environment

• Fifth Circuit (Texas, Mississippi, Louisiana),
  Language and behavior models available from
  nonhandicapped children may be essential or
  helpful to the handicapped childs development.
  
• Ninth Circuit (California, Alaska, Arizona,
  Hawaii, Idaho, Montana, Nevada, Oregon, and
  Washington). Social benefits like language
  modeling and improved self-esteem may be more
  important than educational benefits.

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Least Restrictive Environment

• Third Circuit (Delaware, New Jersey, and
  Pennsylvania) and Eleventh Circuit (Alabama,
  Florida, Georgia)
• Even if a child could make greater academic
  progress in a regular classroom, this alone may
  not warrant excluding the child from that
  placement.
• Interaction with nondisabled peers may develop
  social and communication skills
• Mainstreaming may work to eliminate the stigma of
  disability
• Fundamental right to associate with nondisabled
  peers

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Least Restrictive Environment

• Academic benefits may be more important than
  social benefits.
• Second Circuit (Connecticut, New York,
  Vermont)-The presumption of mainstreaming must be
  weighed against the importance of providing an
  appropriate education.
• Fourth Circuit (Maryland, North Carolina, South
  Carolina, Virginia, West Virginia) Academic
  progress may be more important than the social
  benefits gained from mainstreaming.

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To Mainstream or Separate

• The assumptions behind mainstreaming may not be
  valid for YOUR child with HF ASD.
• Law was based on premise behind racial
  integration.
• ASD disorder may be viewed as significantly
  different from other disabilities.
• Stacey G. v. Pasadena Indep. Sch. Dist., 547 F.
  Supp. 61 (S.D. Tex. 1982) (Autistic children are
  resistant to change and experience profound
  social isolation which is not experienced by
  retarded children with the same I.Q. This social
  isolation can interfere with and alter efforts to
  mainstream the child.).

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Those That Favor Mainstreaming Believe

• A regular education setting will improve the
  behavior of the disabled child by providing
  positive role models.
• Separation creates stigma and low self-esteem.
• Inclusion will result in increased self-esteem,
  which leads to greater academic performance.

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Those That Favor Separation Believe

• Actual educational achievement should be the
  overriding factor.
• Inclusion can lead to failure to model
  appropriate behavior and language skills,
  increased social isolation, lower self esteem,
  and lower academic achievement.

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Factors to Consider

• Will your child learn appropriate behavior and
  language from observation and modeling of
  typical children in a large setting, or does
  he/she need a highly structured, small learning
  environment, offering intensive social skill and
  behavioral training?
• Will your child be a victim of ridicule and
  ostracism among mainstream peers?
• Will your child have improved or lowered
  self-esteem among non-disabled peers?
• Will your child have improved or lowered academic
  achievement among non-disabled peers?
• HF ASD children may be socially aware enough to
  feel failure and isolation when comparing
  themselves to typical peers in class. If
  separated, they may develop pride in
  individuality.

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High Functioning ASD Cases

• Losing the autistic classification
• Cases finding FAPE was denied.
• Cases finding FAPE was provided.
• Other

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The Autistic Classification

• S.N. on Behalf of K.N. v. Old Bridge (NJ)
  Township, The Administrative Law Judge upheld the
  school districts denial of classifying an
  Aspergers child as autistic. The ALJ found
  that the child was high functioning, attempted to
  engage others, and had well-developed expressive
  language. The ALJ instead upheld the
  classification as either Other Health Impaired
  or Specific Learning Disability, based on
  symptoms of ADHD.
• Eric H. v. Judson Indep. Sch. Dist.,(W.D.Tex.)
  The court supported removal of the autism
  classification of a child formerly diagnosed
  with Aspergers, in part based on findings of
  excellent grades and minor discipline issues.
  Instead, the child was classified under Other
  based on findings of ADHD. The court reasoned
  that the main characteristics of Aspergers are
  the (1) qualitative impairment in social
  interaction, (2) restricted, repetitive and
  stereotyped patterns of behavior, interests and
  activities, and (3) clinically significant
  impairment in social, occupation, or other
  important areas of functioning. However, it also
  noted, that presently there is no standard
  measure to evaluate whether an individual has
  Aspergers Syndrome.

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Found FAPE Not Provided

• (i) Schoenbach v. Dist. Of Columbia, 309 F.
  Supp. 2d 71 (Dist. D.C. 2004).
• The IEP for a child with Aspergers provided for
  one hour of specialized instruction, thirty
  minutes of counseling every week, and a full-time
  aide for the child in a mainstream setting. The
  parents sought small group instruction in all
  subject areas, staff knowledgeable about children
  with severe social disabilities, small structured
  and supervised activity groups, and a coordinated
  social, communications and behavior management
  approach.
• The due process hearing officer found the IEP
  appropriate because the child did have higher
  than average marks, had advanced in grade levels,
  and was being teased less by her peers.
• However, the District Court found the IEP
  inappropriate. The court relied in part on
  testimony that stated that (1) the child required
  a small classroom setting (2) that social
  progress could not occur because the childs
  behavior would prevent other children from
  including her, and (3) that the aide was not
  sufficiently trained.

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Found FAPE Not Provided

• One expert testified, These children can be
  misrepresented as appearing to be achieving in a
  very concrete way, because they have a certain
  aptitude and ability to be loquacious...But
  thats misrepresentative of what theyre actually
  able to do, specifically related to academics.
  Executive function disorder is a major impairment
  that besets Asperger children. So they cant
  utilize information that they do know. And the
  information is usually in splinter skills which
  really dont allow them to function well in
  reality.

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Found FAPE Not Provided

• Neosho R-V School Dist. v. Clark, 315 F.3d 1022
  (8th Cir. 2003)
• An Asperger child was denied FAPE because of the
  lack of a proper behavior management plan,
  preventing the child from further mainstreaming
  and further academic progress. The child had been
  placed in a self-contained class, with a full
  time paraprofessional, with mainstreaming in a
  music class. The special education teacher and
  paraprofessional attempted to manage his behavior
  based on a checklist, but lacked a formal plan
  that included a functional behavior assessment
  and an appropriate system of consequences and
  reinforcements.
• The School District argued that the childs
  report cards proved educational success, but the
  court found that the reports did not indicate at
  which grade level the child was working at any
  given time or over which period of time, and that
  his ability to progress to the next grade level
  work was only possible with a great deal of help
  from the paraprofessional. Every time the teacher
  advanced the childs work to a fifth grade level,
  the behavior problems forced the teacher to
  readjust the work back to a third grade level in
  order for the child to perform independently.

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Found FAPE Not Provided

• The court concluded that the lack of an adequate
  behavior plan prevented the child from receiving
  a benefit from his education and from interacting
  with peers in an acceptable manner.

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Found FAPE Not Provided

• D.C. v. Lawrence Township Board of Educ., OAL
  Docket No. EDS 50-04 (N.J. December 29, 2004).
• The ALJ found that placing a 15 yr old child with
  Aspergers, among other disorders, in a
  mainstream setting with an aide and a special
  education teacher appeared destined to failure,
  and awarded the parents tuition reimbursement
  for a unilateral placement in a private school.
• The ALJ found that the child made significant
  progress in the private placement and rejected
  the School Boards assertion that the progress
  was a result of new medication because there was
  no medical testimony to support that claim.

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Found FAPE Was Provided

• Kings Local Sch. Dist. v. Zelazny, 325 F. 3d 724
  (6th Cir. 2003).
• A ninth-grader diagnosed with Aspergers, OCD and
  Tourettes was receiving good grades throughout
  his IEP. He participated in small group settings
  in both resource room and mainstream. The parents
  brought a due process hearing because their child
  was being repeatedly victimized and teased at
  school. They reported that his behavior at home
  deteriorated and physical manifestation of
  disorders had increased. Although the parent
  complained that life was a living hell once the
  child got home from school, the court found that
  this was not related to educational issues.
• The court also reasoned that the child continued
  to have passing grades, and had slightly less
  discipline problems than the year before. The
  court concluded that the IEP constituted a FAPE
  and reimbursement for private school was
  unwarranted.

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Found FAPE Was Provided

• Adam J. V. Keller Independent Sch. Dist., 328 F.
  3d 804 (5th Cir. 2003).
• A high school student with Aspergers was
  considered academically gifted, but had serious
  behavioral problems. The District proposed that
  the child remain in special education classes,
  with a full time aide, with the option of
  enrolling in mainstream classes, and training
  would be given to parents and teachers. The
  parents contended the child was being denied a
  FAPE because he was seriously under challenged
  academically and had only made incremental
  progress in his behavior. The court
  sympathized with the parents frustration that
  the childs courses had not been sufficiently
  challenging, given the childs ability and
  aptitude. Nevertheless, the court found the IEP
  constituted FAPE.

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Found FAPE Was Provided

• Lewisville Indep.Dist. v. Charles W., 2003 U.S.
  App. Lexis 24429 (5th Cir. 2003).
• The IEP of a seventh grade child with HF PDD-NOS,
  intellectually in the superior to very superior
  range, offered mainstream classes with advanced
  placements in math and science, participation in
  a social skills communication class (although the
  child was the only student in the class), and
  training to the teachers. The child was allowed
  to leave class one minute early to avoid crowds
  and bells in hallways, and was allowed to go to
  the library during lunch to avoid crowds and
  noise. The parents placed their child in a
  private placement, where they noted that the
  child was now making friends his own age and had
  fewer behavioral incidents.

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Found FAPE Was Provided

• The parents contended that the child did not
  receive academic benefit in his IEP because (1)
  the child was only receiving passing grades,
  despite his being considered gifted and (2) the
  mainstream placement was inappropriate for his
  behavioral difficulties.
• Nevertheless, the court found the education was
  appropriate because the child received passing
  grades (77- 92) and there was some behavioral
  improvement.

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Found FAPE Was Provided

• H.W. and J. W. O/B/O A.W. v. Highland Park Bd.
  of Educ., 2004 U.S. App. Lexis 18625 (3d Cir.
  2004).
• The IEP of a middle school child diagnosed with
  Aspergers was offered (a) a self-contained
  placement of eight students, (b) one-on-one
  instruction in certain subjects, OT, Speech and
  PT therapies, (c) a behavior modification plan,
  (d) mainstreamed classes, as well as lunch and
  recess, and (e) a teacher with at least two
  paraprofessionals, familiar with Aspergers.
• In a due process hearing, the parents expert
  contended that the proposed placement lacked
  experience in the Aspergers disorder and the
  child would not have any potential friends in the
  proposed class. The court nevertheless found that
  the proposed IEP constituted FAPE.

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Not Just Academics

• M.C. v. Central Regl Sch. Dist., 81 F.3d 389
  (3rd Cir. 1996) (education involves emotional,
  social and physical growth)
• S.C. v. Bloomfield Bd.of Educ., 2004 WL 2266864
  (OAL June 29, 2004) (education encompasses social
  judgment, relationship to peers and authority,
  and behavior management)
• Venus Indep. Sch. Dist v. Daniel S., 2002 US Dist
  LEXIS 6247 (N.D.Tex 2002) (despite gifted
  intellectual status, child still entitled to
  special education services of social skills
  training, short term individual psychotherapy and
  behavior management)

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Related Services

• Behavioral interventions and support
• Psychological services (but not psychiatric)
• Social Skill training
• Extracurricular activities
• Speech and Language
• Occupational Therapy
• Physical Therapy
• Transportation
• Assistive Technologies (Alpha Smart, Voice
  Recognition Software)
• School health services
• Parent counseling and training

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The Child Study Team

• Consider CST recommendations
• Can develop informal short-term agreements
• (sample contained in hand-out)
• You need not wait for a child to first fail in a
  particular placement before removing them.

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IEP Goals for Elem. School Child

• Goal To demonstrate self management skills.
  Objectives
• Reduce incidents of head banging, hitting self,
  95 of the time.
• Reduce incidents of crying and hair pulling, 95
  of the time.
• Demonstrate ability to accept teachers no,
  stop, or wait, without expressing aggression,
  80 of the time.

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Sample IEP Goals- Social Skills

• Goal Be able to appropriately interact socially
  with non-handicapped peers. Objectives
• Participate daily with peers in 20 minute
  structured play situation with adult mediation,
  without a meltdown or other protests
• Demonstrate ability to play a board game with
  peers according to real rules for 15 minutes
• At lunch/recess, demonstrate ability to initiate
  and respond to play with peer sustain play in an
  interactive manner without adult supervision for
  15 minutes
• Demonstrate ability to play with peers with
  something other than Pokemon for five minutes

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IEP- Emotional Development

• Goal Child can self-regulate emotional state to
  enable learning. Objectives
• Demonstrate ability to independently calm self in
  response to teacher requests 80 of the time
• Reduce requests for teacher assistance when
  distressed to twice a week.
• Demonstrate ability to accurately identify
  feelings when asked, 80 of the time
• Demonstrate ability to deal with teasing by
  asserting self or seeking teacher assistance ,
  80 of the time
• Be able to compare self to others, without
  demonstrating aggression, 80 of the time.

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IEP Goals- Study Skills

• Goal Achieve motor planning skills required for
  learning. Objectives
• Independently remember to bring home homework 4
  /5 days a week
• Keep work materials in desk in an organized
  manner for 3/5 days a week
• Independently pack book bag at school and at
  home.

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Sample IEP Goals- Language

• Goal Achieve skills necessary to engage in
  conversation with a peer. Objectives
• Demonstrate ability to engage in at least
  three-sentence social conversation appropriate
  for meeting new children
• Be able to engage in" ask and tell conversation
  with one child of similar verbal abilities, for
  five minutes.
• Be able to describe a movie the child has seen,
  evidencing proper topic maintenance, sequencing
  and inclusion of details, for one minute.
• Be able to talk about a subject other than
  Pokemon for five minutes.

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Sample IEP Goals- Occupational Therapy

• Goal To demonstrate increased tolerance of
  ordinary sensory stimuli. Objectives
• Reduce evidence of distress when faced with
  typical auditory stimuli, ex. school fire drill,
  80 of the time.
• Participate in various age appropriate play
  activities involving strong tactile input, 80 of
  the time.
• Learn to touch type so that 80 of school work is
  typed on AlphaSmart, and 80 is accurate.

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Experts

• Courts rely on the opinions of experts.
• Ideally, the expert should
• Observe child over time
• Visit the school to observe child in school and
  with peers
• Review entire school file and childs records
• Interview childs teachers and other service
  providers
• Therapists who work with child throughout year,
  on a regular basis, given greatest credibility.

56
Types of Experts

• Learning and Educational Specialists
• Behavioral Specialists
• Psychiatrists/Neurologists
• Social Skills (Psychologists/Social Workers)
• Occupational and Physical Therapists

57
Questions to Ask an Expert

• Degrees? Institutions? Publications? Work
  Experience?
• Private practice vs. professional expert?
• How much specific experience with this type of
  child?
• Any bias for mainstreaming or separation?
• Worked with both school districts and parents?
• Known by your District?
• Known by your attorney?
• Availability for evaluation/ observation?
• Willing to testify?

58
Expert Reports

• Give expert list of specific issues to address.
• The report should be well reasoned.

59
Retaining Experts

• What (observe, write, testify)
• When
• Obtaining permission
• Notice of cancellation
• Termination
• Fees and costs
• Sample retainer letter in hand-out

60
Conclusion

• Emerging media may help educators see HF ASD
  children as a specialized subgroup.
• Cases indicate that it remains difficult to
  prove HF ASD children are not so HF, but more
  cases are coming out.
• In the meantime.

61
They say, You Say

• He/she was fine talking with me.
• Experts agree that these children tend to be
  comfortable with adults. Have you seen him/her
  with peers?
• He/she can do the work, but just doesnt want
  to.
• Inability to consistently perform is typical of
  the disorder. Experts do not describe this as
  willful. Children with this disorder have gaps
  in abilities, and get easily overwhelmed by
  demands.

62
They say,You say

• Children in the class do like your child, but
  your child falsely believes that the children are
  picking on him/her.
• Misunderstanding social cues is typical of the
  disorder, and doesnt mean that the child is not
  in real distress. Moreover, teasing may actually
  be occurring when the educator is not watching.

63
They say, You say

• Your child needs to go to lunch and recess with
  the mainstream without an aid. How will he/she
  ever learn how to cope? You are preventing your
  childs growth.
• The social and sensory demands of a typical
  public school lunchroom can be overwhelming to
  the child. Once overwhelmed, the child learns
  failure, not success. You are seeking to prevent
  trauma to the child, not his or her success. If
  the child could grow under these circumstances,
  he/she would not have the disorder.
• Document the lack of growth/progress in the area
  at issue. Have an expert come in to observe and
  document your childs behavior and your behavior
  as a parent, if necessary.

64
They say, You say

• Your child is doing fine in this class.
• But isnt my child still doing the same work as
  he/she did last year? What happens if you add
  harder work?
• Your child is happy in school.
• When he/she gets home, they are out of control.
  Experts say that a child of this type can
  frequently hold it together during the day to
  avoid punishment or embarrassment, but that does
  not mean that he/she is not deeply distressed.

65
Thank you.Any Questions?

• Comments and questions welcome at
  lisakrizman_at_att.net.

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