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Last Updated: 10/31/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

Question: My daughter is two years old and has just been diagnosed with autism. When she turns three my school district wants to put her in a PPI class. I think they want this program, as they do not have an autism classroom for pre-school students in my district. I would like her services to be started now. I would also like an autism classroom because the class size is smaller and there is more support staff. Can I request that these services start now? What about having her bussed to an autistic classroom in another school district? Can I insist that she has a 1:1 paraprofessional assigned to work more closely with her?
   

Answer:  The simple answer is that a parent can request any eligibility determination, program or placement they want. However, the answer to question takes a step back to look at what is available from the public schools for the newly diagnosed autistic child.

The reality is that parents of young children who have recently been diagnosed with autism are facing the start of long, and sometimes difficult, journey in partnership with their local school district. While it appears you are already far into the process, for the benefit of those who are not as far along and to provide you some additional insight, I offer the following comments.

Eligibility - In my opinion, the best outcomes start with the parent obtaining a thorough medical evaluation by professionals skilled in diagnosing autism. Not only should their evaluation address the medical definition of autism, but also more significantly must include a clear diagnosis that addresses each eligibility element of the educational definition of Autism Spectrum Disorder (ASD). The definition can be found in the State Rules as R 340.1715.

Once they deliver the outside evaluation to their local school district’s special education department (with a written receipt) they can expect the school to start their own evaluation procedures to determine if the child qualifies for eligibility for IDEA special education services under one or more of IDEA’s special education categories. The evaluation process should be completed within 30 school days. For the pre-school child, the results of the evaluation process could be a finding of no eligibility or a recommendation for eligibility for special education services under Early Childhood Development Delay (ECCD - R 340.1711), Speech-Language (SL - R 340.1710) or Autism Spectrum Disorder (ASD - R 340.1715). Therein lies the first potential area of dispute with many schools favoring ECCD eligibility and holding off ASD eligibility until the child is of school age.

Program - Once found eligible, then the child’s Individualized Educational Planning Team (IEPT) will proceed to create an Individualized Educational Program (IEP) consisting of a program, placement, accommodations, modifications and additional support services that may be needed to insure the child is provided an appropriate education (A FAPE).

What program is appropriate? There is a significant debate as to what programs are effective in addressing autism. Some of the different approaches are Applied Behavioral Analysis (ABA), TEACCH, Verbal Behavior Analysis (VBA), the mixed or eclectic method, and inclusion with support services. Until recently, school district argued with great success that the selection of the methods and materials used to teach all students, including those with autism, was a decision that only its educational professionals could make. This is the “methodology” argument.

That argument has been attacked, as IDEA-97, and now IDEA-2004, both require that the methodologies selected are research based. In fact, in early December 2004, the 6th Circuit Court of Appeals rendered a significant decision when it was faced with a set of facts where the school district was claiming its sole right to select the teaching method (here TEACCH) and the parents where requesting reimbursement for ABA methodology. In that case, after a 27-day hearing, the parents had prevailed at the local hearing level and prevailed when the district appealed to a state review officer. The federal district court overturned the state review decision and the 6th Circuit court of appeals reversed the lower courts’ decision in finding that “a “one size fits all" approach to special education will not be countenanced by the IDEA. Deal v. Hamilton County Board of Education, 2004 WL 2901186 (6th Cir. Tenn.)

Placement - Once a program is agreed to, the placement needs to be determined. While eligibility “labels” are not supposed to define special education placements, programs and services, it has been my experience that they do as certain programs are only delivered in certain predetermined placements. In addition, the choice of a placement has significant impact on intensity of support for the child, and cost for the school district. For example, ECDD classrooms and services differ greatly from ASD classroom and services. For example an ECDD program is for student 2.5 to 5 years of age (can be earlier as determined by IEP Team), with class for 360 clock hours of instruction in 144 days (2.5 hours per day) and a teacher to student ratio of 12:1 and I aide. On the other hand, a program for autistic children can be provided pursuant to the State rules or via a local plan adopted by the child’s intermediate school district (ISD). The state rules do not include an age limit, are required to operate for the entire 185-day school year school and the regular school day (+6 hours) with a 5:1 teacher student-ratio with 1 aide.

Dispute Resolution – A parent can request any eligibility finding, program, placement or related service they see as appropriate for their child. So yes, you can request an “ASD label”, placement in an AI/ASD classroom in or outside the district of residence, a 1:1 aide, private ABA or similar services, etc. If the IEP Team will agree with any parent's request is impossible to determine, as each district addresses ASD differently.

If a parent disputes the determination of their child’s IEP Team, they have a number of choices. A parent can: (1) Agree with the IEP and allow it to be implemented. (B) Allow the proposed IEP to be automatically implemented by doing nothing. Note: If the parent does nothing, the IEP will be implemented within 15 school days after the parent is provided a copy of the IEP with the signature of the district’s superintendent (or designee) attached. (C) Request mediation, although requesting mediation does not stop and IEP from being implemented. (D) Request a due process hearing, in which case the implementation of the IEP is delayed under the “stay put” provisions of IDEA.

Before a parent is considering proceeding to a due process hearing, I would suggest meeting with an attorney or advocate who has experience in addressing issues involving autism. Many of the private practice attorneys charge a fee for a consultation meeting. Non-attorney Information and support Consultations may be available from the Autism Society of Michigan at www.autism-mi.org and the Autism Society of America’s Oakland County Chapter at www.asaoakland.org.  Michigan Protection and Advocacy Services at www.mpas.org  has professional advocates and a limited number of attorneys available. Other agencies may be able to provide services (see www.bridges4kids.org). The Education Law Center, PLLC (810-227-9850) at www.michedlawcenter.com can also provide referrals to private attorneys, including my office.
 
I hope that this brief overview provides an overview of the decisions involved in determining if their autistic child is being provided an appropriate education.
    
 

John Brower, JD
Education Law Center, PLLC 810-227-9850 www.michedlawcenter.com 

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