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Last Updated: 11/20/2017
 

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

Question: My child has been found eligible for special education services under the new Autism Spectrum Disorder category (ASD - R 340.1758). Does not my child now have the right to enroll in a public school for Autism? When I asked that he be enrolled in an autism program I was told that since he was qualified for ASD eligibility due to a medical diagnosis of PDD-NOS (Pervasive Development Disorder – Not Otherwise Specified) he does not have "autism" and therefore is not eligible for an autism program.
   

Answer:  As detailed in an earlier Ask the Attorney article, last September the Michigan Department of Education replaced the criteria it had used for years to determine a student’s eligibility for special education services due to autism with a new and broader definition.  As you note, the replacement category is now titled Autism Spectrum Disorder.  (See previous article for exact qualifying definition).  At the same time, the only defined program for “students with autism” remains unchanged.  That program is defined in the Michigan Revised Administrative Rules for Special Education as:

 

R 340.1758 Programs for students with autism.

Rule 58.  (1) Specific requirements for programs for students with autism shall be provided using either of the following alternatives:

(a) Programs that consist of 1 classroom program for students with autism shall not have more than 5 students and shall be served by a teacher of students with autism.  However, programs that consist of more than 1 classroom may have more than 5 students in a classroom, if the average student-to-teacher-and-aide ratio does not exceed 5 students to 1 teacher and 1 aide.  A classroom with 3 or more students shall have 1 aide.

(b) A special education program described in the intermediate school district plan set forth in R 340.1832(d) and approved by the state board of education that assures the provision of educational programming for students with autism.

Now, in direct response to your questions, there is no “public school for autism”.  Under Michigan’s implementation of IDEA, each Intermediate School District (ISD) creates a plan that describes how they will serve their population of IDEA eligible students, including those with autism.  Some ISDs elect to provide a program that consists of one or more classrooms with a 5:1 student-teacher ratio with a teacher with an AI certification as described in R 340.1758(a).  Other ISDs elect to create their own program and have it approved by the state board as is allowed by R 340.1758(b).   

 

The actual classroom where the program services are delivered may be located with the ISDs other center based programs, or in a classroom leased from a local school district.  Some of the larger local districts for various reasons elect to support their own “autism” program located in one or more of their local schools and taught by their own certified teaching staff.  The local program will follow either the state rule or ISD plan.

 

As to matching eligibility labels to programs, according to IDEA each student with a qualifying disability shall be provided an “appropriate” program and placement that is individualized that is appropriate to their needs.  The match of eligibility category and program under IDEA is not automatic.  For some students with autism, an appropriate program may well be one as is described above.  For others it could be something very different.  It could consist of a home and/or school based intensive therapy program involving discrete trials, with the balance of the day in a regular education setting to provide the student an opportunity to reinforce the skills learned in the intensive program in a setting with non-disabled peers.  Yet for others it could be a regular education classroom with a 1:1 paraprofessional or some other mix of regular education and special education classrooms and services, with or without full time paraprofessional support.   

 

The simple answer is that one size may not fit all.  IDEA recognizes this by mandating that only the IEP Team, which includes the student and parents, can make this decision.  Further, that these decisions can only be made in a meeting and after consideration of all the alternative programs and placements.  IDEA, and the court opinions interpreting IDEA, also provides that not only must the IEP Team must consider the entire range of programs available (and modify the available ones if needed ) but they must start the process considering the least restrictive environment (all or majority of time in general education) to the more restrictive environments (full time special education).  If any administrator makes a pre-determination that prevents the Team from “considering” any particular program for any reason, including a medical diagnosis PDD-NOS, in my opinion that act may well constitute a significant violation of IDEA procedural rules and thereby deny the student a FAPE.

 

As stated in the earlier posting on autism, a parent can request any program, any placement or any related service they and the private experts they may have consulted see as appropriate for their child.  So yes, a parent can request, (always in writing) a placement in the AI program that is offered by your school district or ISD.  In turn, the IEP Team must fairly consider your request.  If the IEP Team denies your request, they should (but rarely do) provide you with a written statement explaining exactly why your request was rejected.  See 34 CFR §300.504 – Prior Written Notice.

 

Just as when a parent disagrees with any decision of the IEP Team, they have a limited number of choices: (1) Agree with the IEP and allow it to be implemented.  (2) Allow the proposed IEP to be automatically implemented by taking no action, which will happen no later than 15 school days after the parent is provided a copy of the IEP with the signature of the district’s superintendent (or designee) attached.  (3)  Request mediation, which under current law the school district is not required to participate.  (4)  Request a due process hearing, in which case the implementation of the proposed IEP is stopped under the “stay put” provisions of IDEA, unless the parties agree otherwise.

 

As due process can have a very fast time line (45-days from request to decision),  I strongly suggest that before a parent formally requests a due process hearing they first meet with an attorney or advocate who has experience in representing parents in due process hearings and has some familiarity with the issues involved with autistic students.  Even if they do not retain someone to represent them at the hearing, all the school districts I know of have their highly skilled and experienced legal counsel represent them at the hearing.  I charge a fee for such a consultation, which takes two to four hours, but not all attorneys may do so.  Michigan Protection and Advocacy Services (www.mpas.org) does have professional advocates and a limited number of attorneys available at no charge if you situation meets their accepting criteria.  There are also other agencies may be able to provide services (see www.bridges4kids.org). 
    
 

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

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