Michigan Educaiton Law Attorney James Lester: Autism Cases

Children with autism are legally entitled to free and appropriate early intervention and special education
services beginning at the first sign of developmental delay, regardless of how young the child is or whether
the child has received a formal diagnosis. Yet, for the reasons described below, many parents find that
obtaining such services can be a challenge.

James Lester is the parent of a child with autism. In cases involving autism, Mr. Lester's familiarity with
autism allows him to provide representation with a high level of understanding, knowledge and expertise in
relation to this complex disability. He has been successful in obtaining Applied Behavior Analysis (ABA)
services for autistic children through the IEP process without litigation, even in school districts that had never
before provided ABA.

Why The Special Education System Has Difficulty Serving Autistic Children
Autism presents a unique challenge to both schools and parents when it comes to special education services
and learning environments. Autism used to be extremely rare, and little was known about it. Today, the
autism rate is skyrocketing for reasons that are as yet uncertain, and some school districts were caught
unprepared in terms of expertise and resources. Autism is a spectrum disorder, and each child's combination
of abilities and disabilities is unique, requiring significant time, effort and analysis in developing educational
services appropriate for each child. This conflicts with the school system's bureaucratic nature and the need
to efficiently provide for hundreds or thousands of children with limited resources. In short, what the
traditional special education system has to offer is sometimes not well matched to the unique needs of autistic
children. Nonetheless, the law requires schools to provide an appropriate and individualized education to each
child, even if it means creating new programs or expending significant resources.

Obtaining A "Diagnosis" Of Autism From The School
The first special education obstacle many parents face is getting the school to even acknowledge that their
child has autism. Many schools are reluctant to label a child as autistic. There can be legitimate reasons for
this, including the reality that the younger a child is, the more difficult it is to diagnose autism with certainty,
or differentiate it from other disorders and developmental delays. The school may have legitimate doubts.

But the experts generally agree that autistic children should have early intervention, and the sooner the
intervention is started the better the prognosis for improvement. So a school's reluctance to identify autism as
such and respond to it accordingly presents a very real threat to the welfare of the child.

During the toddler and preschool years, a child who exhibits developmental delays is entitled to a free
evaluation through the public school system at the parent's request. After the evaluation, if a parent thinks
that their child has autism and the school disagrees, it is usually wise to take the child to a private expert for
evaluation and diagnosis. It is important to go to a provider who has some expertise in autism. A child's
regular pediatrician is usually not a good choice due to the lack of specific expertise, but they may be a good
source for a referral to an expert. In many cases, an expert can accurately diagnose autism by the time a
child is three years old, and sometimes sooner. If the child is diagnosed as having autism, the expert should
also provide recommendations as to appropriate intervention for the child. The parents should also do some
research on available interventions and discuss them with the expert.

If the private expert finds a diagnosis of autism, the parent should go back to the school with this information
and ask the school to reconsider and to identify their child as autistic. If the school is still unwilling to do so,
the parent can still press for implementation of an autism intervention program they feel is appropriate, usually
the one recommended by the private expert. If the school agrees to it, the diagnosis issue loses much of its
significance for the time being. As long as a child is receiving appropriate services for the child's needs,
educationally it matters little what diagnostic label appears in the child's file.

If the school will not implement an appropriate autism intervention for the child even after being presented
with the private expert's diagnosis and recommendations, then the parent is faced with some difficult
decisions. One option is to implement an appropriate autism intervention program in a private setting and/or at
home without the school's involvement. This can be expensive and an additional strain on an already stressed
family. The parent can also continue the dispute with the school by requesting mediation or a due process
hearing to resolve the disagreement. Or the parent can accept the school's proposed program for the time
being and see how the child responds to it. There may be other options available depending on the particular
circumstances of a case, but these are the three general options usually considered. Parents in this situation
needs to research and consider their options carefully in consultation with experts, as this decision is a very
important one with long term implications for the child. Legal counsel should be sought at this point (if not
earlier) to help identify, clarify and evaluate all of the options thoroughly.

Obtaining Appropriate Services For A Child With Autism
To obtain appropriate special education services from the school district, the parent must first understand
what services would be appropriate for their child. Parents should research and become knowledgeable about
autism and autism interventions. There are many different types of intervention in existence. Some only
address certain limited and specific areas of disability, while others purport to be more comprehensive and
able to address most or all areas of disability. Parents also need to assess their child's unique and individual
needs. Autistic children vary greatly in their specific abilities and disabilities. Parents should also consult with
an expert on autism, and perhaps more than one, and obtain appropriate evaluations and recommendations.
The objective is to get a clear understanding of what this particular child needs most, and what intervention or
combination of interventions would be appropriate to provide it.

The child's educational plan will be developed in cooperation with the school, usually through a process
known as an IEP meeting. The purpose of this meeting is to design the child's individualized education plan
(IEP). Problems arise when parents want an intervention which the school does not agree with, or vice
versa. The IEP process is one of consensus, in which both the school and the parents must agree for the IEP
to be approved. Schools rarely offer the kind of name brand interventions that parents have researched, or
that have been recommended by the parent's expert, such as "floortime" or "ABA". Parents often focus on
what an intervention is called, while schools often focus on the components or functional aspects of an
intervention and claim that their program provides the same thing. Sometimes there is agreement about a
form of intervention, such as occupational therapy, but disagreement about the details of how it will be done
or how much will be provided. The school staff, who have professional training and experience, often
provide information or recommendations that conflict with the parent's own research or the opinions of the
parent's expert. The situation can become confusing and frustrating for parents.

One thing that will help reduce the frustration and confusion is to use a systematic approach in IEP meetings.
IEP meetings are supposed to proceed in a specific logical sequence. First, the child's current level of abilities
and disabilities are identified and agreed upon. This is commonly know as PLEP, for "Present Level of
Educational Performance". This identifies the specific areas where the child needs help. Second, goals are
developed. At the very least, there should be goals for each area of disability or delay identified in the PLEP.
This is why the PLEP portion of the IEP meeting must occur and be completed before developing the goals.
Goals should be specific and measurable. Goals that simply say the child will "improve", "develop" or "make
progress" in an area are of little value. Once the goals are established, then and only then should the
intervention services be discussed. The PLEP identifies where the child is now, and the goals identify where
the child is going. The programs and services are the means that will be used to get from one point to the
other. By using this three step systematic approach, it will be easier to understand the nature and source of
any disagreements that may arise between the parent and the school.

Sometimes disagreements are about the goals. Schools are under pressure to help each child meet the goals
stated in the IEP. If a child fails to meet an IEP goal, this can raise questions as to whether the school has
done its job correctly. As a result, some schools have developed a practice of setting low or ambiguous
goals, to avoid meaningful accountability for the child's success of failure. Some schools have the well
meaning attitude that they will do the best they can to help the child learn and develop as much a possible, and
that is the real "goal" regardless of what is written in the IEP. While this may be a nice idea reflecting good
intentions, it fails to provide the necessary guidance and focus of effort that specific and meaningful goals
provide. Goals should be realistic, but ambitious. Parents and schools should aim high.

Goals play a part in later determining what services are appropriate. If goals are too low or too ambiguous,
reflecting little or no real progress, the services necessary to meet those goals will be minimal. By law, the
ultimate objective and purpose of special education is to bring a child up to a level of functioning where they
can participate and make progress in the general curriculum, and to prepare each child for further education,
employment and independent living upon graduation. For children with significant disabilities, this is an
ambitious mission, and the child's IEP goals should reflect the ambitiousness of this mission.

Some research indicates that some autistic children can reach a level of development and functioning by age 6
or 7 to participate in regular education by kindergarten or first grade. By age 6, some autistic children have
learned to talk, play appropriately with toys, use the bathroom, follow instructions, and can identify letters and
numbers and write their name. Each child is unique, and not all children will be able to progress at the same
rate, but parents should consider this context when evaluating whether IEP goals are sufficiently ambitious. It
is better to aim too high and fall a bit short than to aim too low and hit the mark.

Often there are disagreements about services to be provided or teaching methodology to be used. Schools
have what amounts to a standard menu of currently available programs and services, and they try to put
together a program for a child from the selections on the menu. Schools can provide what is on their menu
with administrative ease and cost efficiency. Those programs and services already exist, and the school has
trained staff just waiting to provide them. When parents want something that is not on the menu, schools are
reluctant to provide it. This is often the case when parents request Applied Behavior Analysis (ABA), but the
same is true for any other program or service not normally provided by the school, or the use of an
instructional methodology for which the school staff have no training. There is research indicating that
autistic children should receive significant amounts of one-to-one instruction, at least at the beginning stages
of an autism intervention. Schools are reluctant to provide this because of the significant expense of
providing a 1:1 staff to student ratio, as well as concerns about isolating a child from other children.

Parents often ask whether their child has a right to receive ABA or some other specific service from the
school, or conversely whether the school has the right to choose not to provide it. The answer depends on
the circumstances. There is nothing in the law that provides a per se right to receive ABA or any other
specific service or instructional methodology. What the law does say is that the educational services must be
appropriate, meaning primarily that they must be effective. In recent years there has also been an increased
emphasis on whether a proposed program is supported by research, which ABA certainly is. Nonetheless, if
several options are under consideration, all of which would be effective and have research supporting them,
courts usually say that it is the school's prerogative to decide which methodology to use. The question really
becomes whether the school's proposal is appropriate and adequate for the particular child in question. If so,
the school may be entitled to refuse the parent's proposed services. If not, the school should implement what
the parent proposes assuming it is appropriate.

In order to intelligently evaluate these issues and effectively advocate for the child, parents should research
autism and autism interventions, and consult with private experts. Negotiating for unusual services through
the IEP process requires significant preparation prior to the IEP meeting. If parents disagree with the
programs and services the school is proposing, parents need to be prepared to explain why they disagree and
what specifically about the school's proposal is inadequate or inappropriate for their child. Similarly, parents
need to be able to articulate why the program proposed by the parents is appropriate for that particular child.

When parents discuss the program they are proposing, parents should avoid identifying their proposed
program, service or methodology as being the "best", and instead identify it as "appropriate" or "effective".
The language of the law requires schools to provide "appropriate" education, it does not explicitly require them
to provide the "best" education.

The mere fact that some program, service or methodology is "not currently available" or is not on the school's
menu of available services does not mean the school can refuse to provide it. The law says that schools must
provide an individualized and appropriate education to each disabled child, period. If they cannot do so from
their currently available programs and services, they must do whatever is necessary, which may include
creating new programs and services or training staff in a new methodology.

If the school refuses the parent's request for a program, service, or methodology, the parents are entitled to
receive "Prior Written Notice" (PWN). Many schools fail to provide this unless parents request it, but it is a
parent's right to receive it. PWN is basically a detailed written explanation by the school as to why they
rejected the parent's proposal, including all alternatives considered and all evaluations and expert opinions
considered in making their decision. This can help determine whether the school really has a good reason for
rejecting the parent's proposals or not. It would be prudent for the parent to have the PWN reviewed by the
parent's private expert and attorney.

If the school and parent are unable to reach an agreement through the IEP process, options include mediation,
a due process hearing, withdrawing the child from the school, or trying the school's program for a while and
closely monitoring progress or the lack thereof. Some autism interventions, including ABA, are capable of
producing measurable and documented progress month by month. If the school program is unable to
produce documented objectively measured progress within the first three months, the child may not be
making the progress they could be with a more effective program. If the parent does not see meaningful
progress being made in the school program, the parent can call another IEP meeting at any time and go
through the negotiation process again. But this time, the parent will have the lack of progress in the school
program to demonstrate that the school's program is not appropriate.

Special education law is extremely complex, and the above description is only a general summary of a few
basic issues, rules and negotiating strategies. Parents facing a special education dispute with a school should
consult an attorney early to be fully informed of their rights and obligations in relation to the IEP process, and
to avoid inadvertently waiving any rights.

Cautions About Taking Advice From The School
Autism is a complicated disability, which until recently was very rare. Some schools lack up-to-date
knowledge and expertise in autism and autism intervention. Some school staff and administrators have
misconceptions about autism, resulting from limited and outdated information they learned years ago when
they were obtaining their educations. Schools also have agendas that include considerations other than the
best interests of a particular child, such as budget limitations, administrative red tape, internal politics, union
contracts and staffing issues, and the needs of other children who must also be served from limited
resources. The bottom line is that sometimes schools make appropriate recommendations for autistic children,
and sometimes they do not. Parents should scrutinize any advice from the school about what is best for their
child, exercise their own judgment and make up their own minds. Consultation with private experts can be
helpful in this regard.

Similar scrutiny should be applied to any representations about the law offered by the school. Special
education law is extremely complex. School staff and administrators are usually not lawyers, and many do
not fully understand special education law or the rights of students and parents. At the beginning of the IEP
process, parents should receive a standardized form document summarizing some of their legal rights. Other
than that standardized form, parents should be skeptical of any advice or information about the law or their
legal rights from school staff or administrators. Many parents have received inaccurate information about the
law from their schools, and have relied on it to their detriment. Parents wanting to know how special
education law applies to their particular situation should consult an attorney who is knowledgeable in the
subject and who will seek to promote the best interests of the parent and the child. Parents should never take
legal advice from the school's attorney, who is pursuing the best interests of the school.

To learn about available help, visit the Services page. To learn more about Mr. Lester, read About James
Lester or click here to contact Mr. Lester.