The GCASE Law Conference: Practical and Legal Approaches to Difficult Problems for Special Education December 10, 2010

1. The GCASE Law Conference: Practical andLegal Approaches to Difficult Problems for Special Education December 10, 2010 Review of Cases on Autism Janet Little Horton Thompson & Horton LLP thompsonhorton.com 713-554-6746

2. Some texas cases

3. Student v. Beaumont ISD, Dkt. No. 076-SE-1209 (McElvaney June 2010) Student with autism and speech impairment attended school for a year in 2002-2003 and then was withdrawn to begin a home ABA program, including OT and ST. Student never returned to district.

4. District held ARD meeting – declined to fund private ABA program – offered IEP in the district. ARD met again in December 2003 – declined again to fund home ABA program. Identified three year reevaluation as due in March 2005. ARD met again in January 2004 – declined to fund home ABA program. Parents given procedural safeguards.

5. No annual ARD held in January 2005 because no further contact with parents. No evidence they ever intended to enroll child in district again. No reevaluation was done in March of 2005. June 2006 – parents placed in a private school within district. Filed for a hearing in December of 2009 to make district pay for private school.

6. Holdings • Most claims barred by statute of limitations (1 year). • District did not misrepresent it had resolved problems forming the basis of the complaint. • District provided procedural safeguards to parents and copies of ARD documents. • No basis to toll one year statute of limitations.

7. Claims after June 2006 were viable because district did not comply with requirements regarding students with disabilities enrolled by their parents in private schools. • No procedural safeguards to the parents (tolled statute of limitations). • No consultation with the private school representative. • No child find/evaluation of student.

8. Private school student has no individual right to FAPE. • But district must comply with all requirements regarding private school children with disabilities. • Failed to offer to conduct in March 2005 (child find) – pay for parents’ IEE.

9. McKinney ISD v. Student, Dkt. No. 026-SE-1009(Aleman May 2010) Parent of student with autism, speech impairment and hearing impairment (?) requested IEE. District requested hearing to show its evaluation was appropriate. Parent filed 18 counterclaims against the district.

10. District’s evaluation included the Autism Diagnostic Observation Schedule (ADOS). It was administered by staff who did not sign. They were not assisted by anyone who could sign. The lead evaluator was an outside professional. Outside evaluator was not told to retain test protocols and destroyed them. District did not inform parent of destruction.

11. Parent did not return child for 2009-2010. Requested homebound September 1, 2009. Brought letter from pediatrician. ARD requested additional information. Parent requested IEE. District asked for hearing while waiting for more information from pediatrician. Never convened ARD meeting after additional information was received.

12. District could not prove its evaluation was appropriate: • ADOS was not to be used in evaluating children who are hearing impaired. (?) So test was not administered according to instructions. • Those who administered ADOS who could not sign. TEC §29.310(c) requires assessments of HI students to be in the student’s preferred mode of communication. The ADOS was not.

13. Test protocols were not documented and saved by outside professional. Undermined credibility of evaluation. Parent prevented from having them reviewed by her professional to determine whether correct. • Destruction significantly impeded parent’s right to participate in educational decision making.

14. Parent Prevailed • IEP was not appropriate. It did not address all areas of need previously addressed and identified in reevaluation. It was not LRE because student could not communicate with other students. Student signed and they did not. There was not sufficient nonacademic benefit in social skills.

15. BIP said student could be disciplined in accordance with Student Code of Conduct – student not capable of following the Student Code of Conduct (director and parent’s expert) • Procedural violation – failure to provide prior notice test protocols were no longer needed and would be destroyed. Significantly impeded parent’s opportunity to participate in decision-making.

16. Procedural violation – failure to give copy of Notice of Procedural Safeguards when district requested hearing (first time one is requested in a school year). Violation not significant. Parents had been given this document many times.

17. School Prevailed • Parent had opportunity to participate in ARD meetings. • It was not a denial of FAPE to not do a homebound placement. • Do not have to accept doctor’s recommendation. Okay to ask for more information. • Stay put was in place.

18. District responded to request for copies of records appropriately. Within 45 days, offered opportunity to review and inspect – parent refused. Then district provided copies. • Parent not entitled to IEE from McKinney based on disagreement with previous district’s evaluation. • Response to requests regarding OT, AT and transportation were appropriate.

19. Portions of AU Supplement Addressed Appropriately • Parent training – offered – declined – parent never requested alternatives. • In-home training – denied – but parent would not have accepted it anyway. • Parent counseling – parent did not establish it as necessary. • Peer-reviewed research – parent did not establish STC class was not based on it.

20. No reimbursement for private school/privately secured services. • Notice not provided at ARD meeting before removal. • Notice not provided 10 business days before removal.

21. Student v. Silsbee ISD, Dkt. No. 268-SE-0709 (Lockwood November 2009) Student with autism and speech impairment had significant educational needs in functional communication, language, peer relationships, social functioning, self-help and educational performance. Lived in Lumberton ISD at first. LISD placed the student in a private ABA-based program. LISD provided ESY to prevent documented regression.

22. 2007 – 2008 parents made a unilateral placement to full time day treatment program – ABA based. LISD refused to pay for this.

23. ABA program very structured • Intensive 1:1 approach • Supervised by BCBA • Specific detailed BIP • IEP based on ABLLS • In-home training – 60 minutes 2X week • Parent counseling and parent training • ST/OT weekly

24. Moved to Silsbee ISD Spring 2008 • Father visited with various school people. • Was shown two possible classrooms. • Filled out various forms. • Student did not “appear”. • School assumed this was “pre-enrollment”.

25. April or May – father stated student would remain at private school. Would enroll beginning of 2008-2009. May 2008 ARD meeting held. • Adopted private school IEP as if a transfer – to hold another ARD after 30 days. • Agreed to use shadow from private school for transition but not to pay for person.

26. Agreed to train staff over the summer – did not happen. • Agreed to do updated psychological – never done. • Agreed in-home training needed – not scheduled. • Did not discuss ESY. • Parents not given procedural safeguards.

27. Holdings: • Just because student did not “appear” in Spring 2008 does not bar reimbursement. Forest Grove v. TA, 129 S.Ct. 2484 (2009) holds a student may be entitled to reimbursement regardless of whether student previously received special education from the school. • School knew student was a resident in March 2008. Did not convene ARD meeting until May 2008. No educational harm because parent had no intent to enroll in district.

28. District had responsibility to make sure updated psychological done – parent entitled to reimbursement for own testing. • District wrong to treat student as a transfer. Transfer rules apply only to students coming from another public school.

29. Parent entitled to reimbursement • Campus could not implement private school IEP • No ESY • ABA/staff training • Transition • No daily schedule/no in-home training • Not LRE • Would expect regression • Private school appropriate

30. Student v. Lindale ISD, Dkt. No. 275-SE-0709 (Rudd October 2010) Parent of middle school age student with severe autism, speech impairment and significantly impaired cognitive functioning brought hearing to require district to pay for private school owned and operated by parent and in which student was the only pupil.

31. Over three year period, district had drastically reduced behaviors interfering with education. • Aggression, self-injurious behaviors, hand rubs markedly reduced. • Significant change in intensity and nature of self-injurious behaviors & hand rubs. • Placement changed from self-contained with teacher and paraprofessional to Life Skills classroom with other children and working with other staff.

32. District embraced ABA/verbal behavior methodology • 400+ hours training for teacher. • 200+ hours training for paraprofessional. • Speech pathologist trained in methodology. • Teacher developed extensive data collection systems. • BCBA used as a consultant.

33. 2008 – 2009 – Dispute originated because teacher reduced and changed data collection because of improvements in behavior. Parent’s position: • Missing, inconsistent or inaccurate data in 2008-2009 = no progress • “If it’s not documented, it didn’t happen.” (Parent’s BCBA)

34. Other parent complaints: • 2009 ESY services not sufficient • District staff not highly trained • District did not have qualified staff to provide services during breaks – parent had to secure staff • District did not implement IEP

35. Private School of Parent • Instruction – certified teacher and college student • Male therapists to control aggression – no training in use of restraint • Three children were on site being home-schooled by a tutor • Three other children came periodically to interact with student • No direct speech therapy – consultation only • Consultation with BCBA

36. Holdings: Data Collection • ABA requires data to be taken and analyzed. • Effectiveness of ABA program is not based on volume of data. • Observations and daily interaction provide other sources of information. • IDEA does not require a certain form of data collection. District selects data collection method. • Data collected more than sufficient to show progress.

37. Highly Trained Staff • Staff had hundreds of hours of training in ABA/VB. • Testimony of teacher showed understanding of all methodologies used with the student. • Teacher collected data daily and analyzed it. • Student took instruction during intense table time without aggression or self-injurious behaviors.

38. Trained Staff was available during breaks • During summer and winter breaks, trained district staff sometimes had in-service training requirements or were not on contract. • District contracted with persons chosen by parent. • Agreeing to persons suggested by parent did not violate IDEA.

39. 2009 ESY services • Parent wanted ESY in her “private school”. • District proposed its own program. • Compromise – District agreed to fund seven weeks using persons chosen by parent in home and community setting and two weeks on the campus to transition back to school. • Student did not regress. Parent failed to take advantage of last two weeks at the campus.

40. Implementation of IEP • Student to go to athletics 15 minutes per day for inclusion; have group instruction with Life Skills teacher 30 minutes per day; go on community outings two times per week. • Spring semester – parent kept student home in the morning to work on home ABA program. He missed the time for athletics and community outings. • When he was present, these inclusion activities were substantially implemented.

41. Program was appropriate (Michael F.) • Highly individualized. • Service providers coordinated and collaborated with each other on implementation of IEP in all school settings. • Life Skills was LRE – student required highly structured environment but by end of 2008-2009 he was able to engage in various mainstreaming activities including lunch, moving through halls, school field trips, daily PE and community outings.

42. Nonacademic benefit included marked decrease in frequency and intensity of behaviors, integration into Life Skills class and interaction with general education students. • Academic benefit included mastery of most objectives and good or satisfactory progress on others. • Mastery of most speech therapy objectives and increase in spontaneous speech. • Program proposed for 2009-2010 would have met the Michael F. factors also.

43. Some cases across the country

44. methodology

45. General Rule: District selects educational methodology so long as the methodology provides FAPE.

46. Methodology is not a required element of the IEP but “if an IEP Team determines that specific instructional methods are necessary for the child to receive FAPE, the instructional objectives may be addressed in the IEP.” 71 Fed. Reg. 46665

47. The IDEA’s reference to basing educational services on peer-reviewed research to the extent practicable does not preclude a district from using eclectic or untested teaching methodologies or evidence-based emerging best practices.

48. Final decision is up to the IEP Team. Key question – will the IEP provide the child FAPE. The educational services with the greatest body of research is not the service necessarily required to provide FAPE to a student. USDOE Commentary

49. BUT the methodology chosen by the district must provide FAPE.

50. In re: Student with Disability, 52 IDELR 146(SEA W. Va. 2009) Five year old with autism had been receiving ABA – DTT in private school for two years and was progressing.