“FAPE” for the Autistic Child

A FREE, APPROPRIATE AND INDIVIDUALIZED PUBLIC EDUCATION

I. INTRODUCTION

II. SPECIFIC PROVISIONS OF THE IDEA 

III. OVERVIEW OF THE IDEA IN COMPARISON TO SECTION 504 OF THE

REHABILITATION ACT AND THE AMERICANS WITH DISABILITIES ACT

(ADA)

IV. QUALIFYING AS A CHILD WITH A DISABILITY 

V. EARLY INTERVENTION SERVICES FOR CHILDREN YOUNGER THAN

THREE YEARS OLD

VI. SPECIAL EDUCATION 

VII.  INDIVIDUALIZED EDUCATION PROCESS

VIII. APPROPRIATE EDUCATION 

IX. RELATED SERVICES

X. MAINSTREAMING, INTEGRATION, FULL INCLUSION AND LEAST

RESTRICTIVE ENVIRONMENT 

XI. MEDIATIONS AND DUE PROCESS HEARINGS 

XII. OTHER IMPORTANT TOPICS FOR DISCUSSION 

XIII. CONCLUSION 

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I.          INTRODUCTION

A.   What is Special Education Law at Roberts, Adams & Jewell?

1.    Special Education Law is a very focused legal practice area. As special education attorneys, our aim is to empower parents of children with disabilities to help their children achieve full potential in an educational setting.  Our firm strives to equip parents with self-advocacy skills.  We hold seminars at parent support group and regional center meetings, and provide updated information on statutes and case law that regulate special education on both the state and federal level.

2.  A special education attorney represents children with disabilities at Individualized Education Program meetings (also called "IEP" meetings), Due Process Hearings and if the need arises in court proceedings. A special education attorney represents the child's interests to ensure that he receives all special education and related services (i.e., physical therapy, speech therapy, etc.) available to him under the federal and state laws.

B.    The State of California and Special Education

1.     In the year 2000, Los Angeles Times reported that California is one of the worst states in terms of compliance with special education laws.  One in every ten children in Southern California has a disability that entitles them to receive related services or Designated Instruction Services (DIS).  Related Services and DIS are two names that describe services given to children with disabilities that will help them to benefit from their free appropriate public education.  A school district's failure to

fund all necessary related services to such a child is a violation of both state and federal law. According to the Los Angeles Times there are currently 628,848 students receiving these services in California, approximately 8,291 of these children attend public school in Orange County.

C.  What Laws Govern the Special Education Field?

1.  There are both federal and state laws that govern the field of

special education. These laws are:

Þ      The Individuals with Disabilities Education Act ("IDEA")

Þ      Section 504 of the Rehabilitation Act

Þ      The Americans with Disabilities Act ("ADA")

Þ      The California Education Code

Þ      Federal and state implementing regulations

D.   What Is The IDEA?

1.   The Individuals with Disabilities Education Act ("IDEA") was enacted in 1991 (an amended version of its predecessor the Education for All Handicapped Children Act or EAHCA) to provide a free, appropriate and individualized public education to eligible children with disabilities, given in the least restrictive environment.  In other words, IDEA is federal law and mandates that special education and related services are to be provided to children with disabilities at no cost to parents.

2.  The IDEA was amended in 1997.  The new IDEA focuses its attention on necessary related services (accommodations) for disabled children to have access to the general education curriculum.  Previously, the law did not specifically address general curriculum involvement of disabled students.  The IDEA now focuses on improving teaching and learning with a specific focus on the Individualized Education Program ("IEP") as the primary means of developing a child's involvement in the

general curriculum.

3.   The IDEA 1997 statutory language states "Over 20 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by..having high expectations for such children and ensuring their access in the general curriculum to the maximum extent possible." 20 U.S.C. §1487 (5)(A).

II.   SPECIFIC PROVISIONS OF THE IDEA

A.  Civil Rights.  IDEA is a "grant statute" that creates civil rights.

B.  Substantive Protections.  The IDEA requires:

1.  All children with disabilities be given an education.

2.  Education and Related Services must be provided up to the age of 21 (California extends this to age 22).

3.  Education must be free of charge to parents.

4.  Education is not simply academic but includes self-help skills

and vocational skills.

5.  Education must be provided in the "Least Restrictive

Environment" (LRE).

6.  Education must be individualized and appropriate to the

child's needs.

C.   Procedure Protections.  Procedural Protections of the IDEA are:

1.   A child's right to notice of a proposed decision about his

educational program.

2.  Notice to parents of procedural protections and substantive

protections given to them by the IDEA.

3.  Right to an IEP.

4.   Right to an administrative hearing, court hearing and the

right to a record of the hearing.

5. Right for child to remain in his educational setting until

dispute is resolved (Stay-Put Provision).

6.  Right to attorneys' fees if family is prevailing party at an

administrative hearing.

III.        OVERVIEW OF THE IDEA IN COMPARISON TO SECTION 504 OF

THE REHABILITATION ACT AND THE AMERICANS WITH DISABILITIES

ACT (ADA)

A.  Summary Of IDEA, Section 504, the ADA & CA Education

Code.

1.       The IDEA is unique in comparison to Section 504 and the ADA in that the IDEA provides federal funding to states specifically for special education programs and related services.

2.       Section 504 is a non-discrimination statute that makes it illegal for any programs receiving federal funds to discriminate against an individual based upon their disability.  Section 504 requires public entities to provide reasonable accommodations to persons with disabilities as long as the accommodation doesn't fundamentally alter the program.

3.       The ADA is similar to Section 504 except that there is no federal funding requirement.  In other words, even private entities (private schools) not receiving federal funds are subject to the ADA's anti-discrimination provisions and are mandated to provide reasonable accommodations to disabled persons.

4.       The California Education Code given educational rights similar to what the IDEA and Section 504 provide to children with disabilities.  In some cases, the California Education Code grants more rights and privileges to children than federal law.

IV.        QUALIFYING AS A CHILD WITH A DISABILITY

               A.      General Requirements.  A child must be assessed to determine whether he has a disability that is covered under the IDEA, Section 504 and the ADA or a combination of the three before related services and special education will be provided.

1. IDEA Requirements.  The IDEA covers people with the following disabilities: "mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as 'emotional disturbance'), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; who, by reason thereof, need special education or related services.  The

term 'child with a disability' for a child aged 3 through 9 may, at the discretion of the State and the local educational agency, include a child experiencing developmental delays."

2. Section 504 Requirements.  Section 504 covers people with the following disabilities: "any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment."

3. ADA Requirements.  The ADA covers people with the same disabilities as Section 504, but the ADA applies to public and private entities.

B.Labeling And The IDEA.  Some problems with the IDEA definitional requirements include:

Labels do not always correctly represent the characteristics of the child.

Labeling can stigmatize a child in school.

Labeling can create a self-fulfilling prophecy.

Labels do not help teachers in finding an effective way to educate children.

Some District's make offers of placement and services to your child based on his/her label rather than his/her unique needs.

V.         EARLY INTERVENTION SERVICES FOR CHILDREN YOUNGER

THAN THREE YEARS OLD

A.  General.  The Individuals with Disabilities Education Act ("IDEA") establishes important rights for and provides support services for children with disabilities including children from ages zero to two years as well.

B. Purpose.  The purpose of a law that provides early intervention services is to enhance the development of infants and toddlers with disabilities and to minimize the potential for delay.  It is also designed to reduce educational costs by minimizing the need for special education and related services after infants and toddlers reach school age.

C. Infant/Toddler.  An infant or toddler with a disability means an individual younger than three years old who needs early intervention services because they are experiencing developmental delays in one or more of the following areas: cognitive development, physical or motor development, social or emotional development, or adaptive development.  If a child is experiencing such a delay a referral may be made orally or in writing by a parent to the regional center or school district.

D.  Process.  Once a referral has been made, the regional center or the school district must complete an evaluation and assessment, hold a meeting to determine eligibility, and develop an Individual Family Service Plan ("IFSP") within forty five days of receipt of the referral.  The IFSP identifies the services appropriate to meet the unique needs of the infant or toddler.  The IFSP must be in writing and will include a number of

items, such as: a statement of the infant's present levels of development, a statement of the family's concerns, priorities and resources, a statement of specific services including how often, how much, method of delivery, and dates for initiation of services.

E.  Responsible Agencies.  In California, early intervention services are provided under public supervision and at no cost to families.  The services must be designed to meet the infant or toddler's individual developmental needs.  They may include such things as: special education, speech and language therapy, occupational therapy, physical therapy, psychological services, parent and family training and counseling, among others.  Note that these services may be provided in the home, depending on the infant and family's needs.  If there is a disagreement between the parents and the district as to placement or early intervention services, the parents may file for a due process hearing.  If the IFSP is not being implemented or administered properly, the parents can file a compliance complaint to address the issue.

VI.        SPECIAL EDUCATION

A. Definition.  Special education is specifically designed instruction, at no cost to the parent, designed to meet the unique needs of a child with disabilities.  Instruction can include classroom instruction, home instruction as well as instruction provided in hospitals and institutions.

B.  Individualized and Appropriate.  One of the major principles of the IDEA is that the education of your child must be individualized and appropriate to your child's needs.  In order for a school to receive federal funding and support under IDEA, the state must have a policy that ensures all children with disabilities receive a Free And Appropriate Education  ("FAPE").  The IDEA requires that the development of an appropriate special education program and related services occur through the development of an individualized education program "IEP"). 

VII.       INDIVIDUALIZED EDUCATION PROCESS

A.  IEP.  The IEP contains a written statement describing the child's present educational performance, short-term objectives and annual goals for development, specific services to be used, dates to begin and duration of those services, criteria, schedules, and procedures for evaluating whether those objectives are being met.

B. How Does It Start?  To begin the IEP process and request special education services for a child, a parent may simply write a letter to a child's teacher, principal, or the special education administrative office.  That letter tells the school that you are concerned about your child's educational process. The letter may also request that the school begin assessments for special education.  The school district must provide the parents with an assessment plan within fifteen days of receipt of the letter.

 Parents then have ten days in which to give consent to any assessments contained in the plan.

C. What If I Want A New IEP?  If a child is already receiving special education services, a parent can request a new IEP be scheduled whenever they feel it is needed.  The parent simply requests in writing that a new IEP be scheduled and the timelines stay in place.  The parent may also request new, additional, or different assessments are done prior to the IEP. An IEP is required to be held at least annually.

D. What Should I Expect At The Meeting?  The IEP is developed at a meeting.  The school district must take steps to ensure that one or both of the parents of the student attend the meeting and have the opportunity to participate.  The school must give advanced notice of the meeting written in the parents native language and the meeting must be at a mutually agreed upon place and time, or by conference call at the parents request.  The statute is clear and holds that the parent of a child with a disability is an equal member of the IEP team.

E. Who Can I Bring To The Meeting?  A parent may bring whomever they wish to the IEP meeting including, but not limited to an attorney, an advocate, a caseworker, or a friend.  The school district must ensure that the following people attend the meeting: at least one parent, at least one regular education teacher if the child is or may be participating in a regular education environment, at least one special education teacher, a district agency representative who has authority to approve all funding for related services, the persons who conducted

assessments of the child or a person qualified to interpret those

assessments, and the child if appropriate.

VIII.      APPROPRIATE EDUCATION

A. What Is An Appropriate Education?  Unfortunately the term "appropriate" as written in the statute is subjective and difficult to define.  This is because the IEP is to be developed to meet the specific needs of the individual child, supported by such services as are necessary for that child to benefit from the instruction. Noticeably absent in the language of IDEA are substantive definitions related to what levels of instruction are necessary.

B.   Different Standards Of "Appropriate".  Some states require that a child meet their maximum potential.  Other states only open the door and make access meaningful.  California does not require a child to meet maximum potential.  Instead, California follows the federal standard.  That standard has been set forth in Board of Education v. Rowley.   The Rowley standard holds that the state must provide the child with specifically designed instruction and supportive services necessary for that child to obtain some educational benefit from that instruction.  Two

good measures to determine whether a child is receiving an appropriate education under this standard are:

Þ      If the child is mainstreamed in a typically developing classroom, the child should be progressing through grades with a grade average of at least a "C;" or

Þ      The second, and more common method, is if the child is meeting the short-term objectives and annual goals as set forth in their IEP.

Þ      However, in many cases children may meet the two above-referenced criteria and still not be receiving FAPE for a number of reasons such as inappropriate goals and objectives, differential grading, the program does not address the child's specific areas of need among many other reasons.

IX.        RELATED SERVICES

 "Related Services" (called "Designated Instruction and Services" or "DIS" in California), are defined as any service that is necessary to help a child benefit from her special education program.  In other words, "to benefit from special education" generally means that the service must assist the child in making progress toward accomplishing the goals set out in the IEP.  Examples of Related Services include:

A.      Transportation (to & from school or alternative placement from the child's home).

B.      Speech-Language Pathology.

C.      Discrete Trial ABA/IBI or behavioral therapy.

D.      Psychological services.

E.      Physical and Occupational Therapy.

F.      Recreation (including therapeutic).

G.     Counseling services.

X.         MAINSTREAMING, INTEGRATION, FULL INCLUSION AND LEAST RESTRICTIVE ENVIRONMENT

A.  Legal Development.  Another fundamental principle of the IDEA is the requirement that children with disabilities receive their education with non-disabled peers to the maximum extent possible.  While the term "mainstreaming" is not found in the language of either the statute or its regulations, the concept of the least restrictive environment is provided for in the regulations.

B.  IDEA.  Federal law provides in part that each local educational agency must ensure that:".to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special day classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in

regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."

C.  Definitions.

1.       "Mainstreaming" refers to the placement of a student with disabilities into the activities of regular classrooms with typically

developing peers.  There is a strong congressional and judicial

preference for mainstreaming.  Children should be nainstreamed even if to accomplish such would require that special education staff be present, or the use of supplementary aides and services would be necessary.

2.       "Integration" generally refers to mainstreaming a student into a regular class as well as providing access to and participation in other activities within the school environment.  For example, a student may spend part of his day in a special day class and another part of his day in a regular classroom with typically developing peers.  The student should have access to non-academic activities with typically developing peers, such as recess, lunch, and dances.  Integration is often used to describe

the idea of integrating both the special day class and the regular

classroom as appropriately as possible. This term would differ

significantly from the concept of full inclusion.

3.       "Full inclusion" refers to the total integration of a student with disabilities into the regular education program.  This may be

accomplished with the assistance of all necessary support services.  Essentially, the student with a disability is a member of an age appropriate regular classroom full-time, with no assignment to a special day class.  The student may not be in that class all of the time.  He may need to leave in order to receive the appropriate related services developed in his IEP,

such as physical therapy, speech therapy, or occupational therapy.  Remember that LRE is an important concept in the IDEA. It is not the only consideration for each child.  Each child's education must be individualized and appropriate for that child.

4.       The Rachel Holland Test.  In considering whether a placement is appropriate for a child, courts have generally looked at the four-factor analysis found in the Rachel Holland case.  This case establishes the four part Ninth Circuit test, which holds that the court must examine:

a.             Educational benefits available to child in regular classroom supplemented with appropriate aides and services as compared with educational benefits of a special education classroom;

b.             Non-academic benefits to child of interaction with children who are not disabled;

c.             Effect of presence on teacher and other children in classroom in terms of disruptive behavior and/or undue consumption of the teacher's time; and

d.             Cost of mainstreaming in regular classroom.

Note that while the Rachel Holland case mentioned that cost was a factor to be considered in determining appropriate placement, it also held that providing a part-time academic aide and making curriculum modifications would have cost the school no more than special education placement.  Generally the majority of the related services necessary for a child to be placed in a regular classroom setting would cost the district little or no expense.

XI.        MEDIATIONS AND DUE PROCESS HEARINGS

A.  Mediations

1.   What Is A Mediation?  A mediation is a voluntary, confidential, and informal meeting at which the parties and an experienced, impartial mediator attempt to resolve the dispute in a non-adversarial atmosphere.  The mediator does not provide advocacy or legal advice to either side but facilitates communication between the parties.  The participation of the

neutral mediator increases the possibility that the parties will reach a mutually satisfactory resolution.

2.    What Are The Benefits Of Mediation?  The vast majority of

disputes resolve through mediation.  Mediation is the preferred method of resolving disputes for a number of reasons, including the following:

a.       The Continuing Relationship Between Parties- mediation helps to maintain a cooperative relationship in the future if the dispute is settled by mutual agreement;

b.       Flexibility- mediation allows a great deal of flexibility in reaching a mutually acceptable settlement/written agreement.  When a dispute goes to hearing, the hearing officer makes the final decision that may not satisfy either party;

c.       Immediate Implementation- if an agreement is reached in mediation, the resolution is written into the form of an agreement that same day and can be immediately implemented.  Hearing decision take much longer;

d.       Less Costly- mediation is less costly in terms of money, time and personal stress.

            B.         Due Process Hearings

1.  What Is A Due Process Hearing?  A special education due

process hearing is a formal proceeding where the parties are given the opportunity to present witnesses, documentary evidence, and oral and written argument in support of their respective positions on disputed special education issues.  The due process system is designed to resolve disputes between educational agencies and parents of a child with a disability or a child suspected of having a disability.

2.   How Does A Party Proceed To A Due Process Hearing? 

When a party requests a hearing, the Special Education Hearing Office notifies the other party and sets a hearing date.  At the same time, the Hearing Office automatically assigns a mediator to the case to give the parties an opportunity to resolve the dispute without going to hearing.  If the dispute is not resolved through mediation, or if one of the parties elects not to mediate, the case proceeds to hearing.

3.   What Is The Difference Between A Due Process Hearing And

Mediation?  Compared to mediation, a due process hearing is a more formal, trial-like legal proceeding.  At the hearing, all parties are given a chance to present evidence and argument before an impartial hearing officer.  The hearing officer then issues a written decision, which is the final administrative decision resolving the matter. 

XII.       OTHER IMPORTANT TOPICS FOR DISCUSSION

A.   Behavior plans.

B.  Student Discipline, Suspension/Expulsion.

NOTE:    Pre-Expulsion Assessment (Cal. Educ. Code § 48915.5)- the pre-expulsion assessment provision of this section provision was removed from the 2003 California Education Code.  Section 48915.5 no longer has a provision that requires a pre-expulsion assessment.  Under the law as it exists now, a district is not required to conduct an assessment prior to removing a student with a disability from his or her current placement.  However, the procedural safeguards under 34 C.F.R. § 300.519 through § 300.529 still apply.  These provisions require a district to hold an IEP meeting within 10 days of removing a student from his or

her placement.

C.   DTT v. TEECH v. IBI as a related service.

D.  Compliance Complaints/Due Process.

E.   SOL and Timelines.

F.  Stay puts.

G.  Attorneys Fees.

H.  Assessment and Testing.

I.   Medication

XII.       YEAR IN REVIEW-Case and Hearing Office Decisions that effect

autistic children

            A.   Byron Union Sch. Dist., 35 IDELR 49 (SEA CA 2001)

1.    Facts: Hearing Officer rejected the district's contention that an 11-year-old student with autism required placement in special day class in order to receive FAPE.  Hearing Officer agreed with parents claim that student was making progress in regular classroom, and that placement was the LRE.

2.   What This Means: Nonacademic benefits of a regular

education placement must be considered in evaluating the student's LRE