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Education of Children with High Functioning Autistic Spectrum Disorder: WHEN FINE ISN’T GOOD ENOUGH


Education of Children with High Functioning Autistic Spectrum Disorder: WHEN FINE ISN T GOOD ENOUGH Lisa K. Krizman, Esq. Law Office of Lisa K. Krizman, LLC – PowerPoint PPT presentation

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Title: Education of Children with High Functioning Autistic Spectrum Disorder: WHEN FINE ISN’T GOOD ENOUGH

Education of Children with High Functioning
Autistic Spectrum DisorderWHEN FINE ISNT GOOD
  • Lisa K. Krizman, Esq.
  • Law Office of Lisa K. Krizman, LLC
  • New Jersey
  • COPAA Annual Conference
  • March 12, 2005
  • Atlanta, Georgia

Why this Presentation?
  • ______________________________
  • This information is being provided as general
    educational and informational purposes only and
    NOT for the purpose of providing legal advice.
    It is not to be used as a substitute for personal
    legal counsel.

Presentation Overview
  • Difficulties in Advocating
  • What to Advocate For
  • The Law
  • Sample IEP Goals
  • Working with Experts
  • Sample Advocacy Script

High functioning
  • Significantly Verbal to Very Verbal
  • Average IQ and above
  • Behavior can be appropriate at times
  • Diagnosis includes High functioning

High Functioning
  • Newsweek (2/28/05) defines
  • Aspergers- Relatively strong verbal skills but
    trouble reading social situations and sharing
    enjoyment, obsessive interests. Children can be
    verbal fanatics, social pariahs, suffer
    debilitating fits of anxiety and depression.
  • PDD-NOS- Known as atypical autism, kids have
    less severe social impairments.

Difficulties in Advocating
  • Educators tend to DISMISS HF ASD children as
    doing fine.
  • Kids with Aspergers, on the high functioning
    end of ASD, may be OVERLOOKED until well into
    elementary school. (Newsweek, 2/28/05).

Just What Does Fine Mean?
  • Is the child doing fine based on being given
    the same goals, over and over again?
  • Is the child doing fine because the educator is
    looking only at the high level skills, not the
    low ones?
  • Is fine based on the educators low
    expectations for that type of child?

Difficulties in Advocating
  • The latest rage in the media.
  • In fiction and nonfiction, in the past portrayed
    as dangerously brilliant psychopaths, geeks,
    personality variants, "mysteriously gifted.
  • Recent media indicate a greater recognition of
    disorder, but tends to also dismiss difficulties.
  • Your educators read this media.

December 2001
  • The Geek Syndrome
  • Autism - and its milder cousin Asperger's
    syndrome - is surging among the children of
    Silicon Valley. Are math-and-tech genes to
  • By Steve Silberman

July 2003 A World of Their Own
September 2003
February 2005
February 2005 NBC Autism Series
Response to NBC Series
    .March 7, 2005Dear Chairman WrightWe are
    representatives of seven Autism organizations who
    have watched NBCs recent intensive coverage of
    Autism with interest...
  • We would like to see more attention given to
    issues affecting children and adults at all
    levels of the Autism Spectrum........ On the
    higher-functioning end (including Asperger
    Syndrome) problems may be quite different, but
    just as frustrating.  The remarkable potential of
    some individuals with Aspergers was highlighted,
    but that potential represents possibility and not
    the overall reality of the many difficulties
    these adults face.

Difficulties in Advocating
  • Nightmare at Recess.
  • A disorder that may not be readily observed by
    adults, but is very observable by peers.
  • What happens at recess, the lunch room, the
    locker room?

Difficulties in Advocating
  • The child is bad.
  • Willfully misbehaves
  • Plain Lazy
  • Just seeking attention
  • Manipulative
  • A perfectionist
  • Just immature

Difficulties in Advocating
  • You are Bad.
  • Too emotional
  • Overprotective
  • You fail to discipline adequately, consistently,
  • properly, etc., etc.
  • Your low expectations cause the childs
  • You are asking for too much
  • You dont know that much

Difficulties in Advocating
  • HF ASD children's needs are not that bad
    compared to other Spectrum children.

Difficulties in Advocating
  • Theyre All Alike.
  • All Autistic labeled children lumped together
    in one program.

How to Determine What to Advocate For
  • You are the Best Expert on your child
  • Research
  • Learn the law
  • Recommendations by the Child Study Team
  • Opinions by Independent Experts

The Law
  • Free appropriate public education (FAPE) in the
    least restrictive environment (LRE).
  • Special education must meet the childs unique
    needs and prepare them for employment and
    independent living.

Determining an Appropriate Education.
  • The FAPE
  • Permits the child to benefit from the
  • Provided at public expense
  • Meets the States educational standards
  • Approximates the grade levels used in the States
    regular education
  • Comports with the childs IEP
  • Provides some educational benefit

How much Benefit is enough?
  • Any benefit is not enough
  • IPE is likely to produce progress
  • Benefit is not trivial
  • IEP is reasonably calculated to confer a
    meaningful educational benefit,
  • IEP offers significant learning
  • Benefit must be gauged in relation to the childs
    potential. (Third Circuit)
  • Appropriate
  • Childs Potential

What About Grades?
  • IEP must be reasonably calculated to enable the
    child to achieve passing marks and advance from
    grade to grade.
  • With HF ASD children, the mere ability to achieve
    passing marks does NOT automatically mean child
    is receiving FAPE.

Least Restrictive Environment
  • LRE means children with disabilities should be
    educated to the maximum extent appropriate with
    children who are not disabled.
  • Disabled children should only be removed from a
    regular educational setting when education in
    regular classes with the use of supplementary
    aids and services cannot be achieved

Least Restrictive Environment
  • Strong presumption for mainstreaming because
    of social benefits.
  • The Sixth Circuit (Ohio, Michigan, Kentucky, and
    Tennessee) Where a separate placement is
    considered superior, the court will evaluate
    whether the services that make that placement
    superior could feasibly be provided in a
    mainstream setting. If so, then a segregated
    placement would be inappropriate, if the benefits
    of mainstreaming are far outweighed by the
    benefits of the non-segregated setting.

Least Restrictive Environment
  • Fifth Circuit (Texas, Mississippi, Louisiana),
    Language and behavior models available from
    nonhandicapped children may be essential or
    helpful to the handicapped childs development.
  • Ninth Circuit (California, Alaska, Arizona,
    Hawaii, Idaho, Montana, Nevada, Oregon, and
    Washington). Social benefits like language
    modeling and improved self-esteem may be more
    important than educational benefits.

Least Restrictive Environment
  • Third Circuit (Delaware, New Jersey, and
    Pennsylvania) and Eleventh Circuit (Alabama,
    Florida, Georgia)
  • Even if a child could make greater academic
    progress in a regular classroom, this alone may
    not warrant excluding the child from that
  • Interaction with nondisabled peers may develop
    social and communication skills
  • Mainstreaming may work to eliminate the stigma of
  • Fundamental right to associate with nondisabled

Least Restrictive Environment
  • Academic benefits may be more important than
    social benefits.
  • Second Circuit (Connecticut, New York,
    Vermont)-The presumption of mainstreaming must be
    weighed against the importance of providing an
    appropriate education.
  • Fourth Circuit (Maryland, North Carolina, South
    Carolina, Virginia, West Virginia) Academic
    progress may be more important than the social
    benefits gained from mainstreaming.

To Mainstream or Separate
  • The assumptions behind mainstreaming may not be
    valid for YOUR child with HF ASD.
  • Law was based on premise behind racial
  • ASD disorder may be viewed as significantly
    different from other disabilities.
  • Stacey G. v. Pasadena Indep. Sch. Dist., 547 F.
    Supp. 61 (S.D. Tex. 1982) (Autistic children are
    resistant to change and experience profound
    social isolation which is not experienced by
    retarded children with the same I.Q. This social
    isolation can interfere with and alter efforts to
    mainstream the child.).

Those That Favor Mainstreaming Believe
  • A regular education setting will improve the
    behavior of the disabled child by providing
    positive role models.
  • Separation creates stigma and low self-esteem.
  • Inclusion will result in increased self-esteem,
    which leads to greater academic performance.

Those That Favor Separation Believe
  • Actual educational achievement should be the
    overriding factor.
  • Inclusion can lead to failure to model
    appropriate behavior and language skills,
    increased social isolation, lower self esteem,
    and lower academic achievement.

Factors to Consider
  • Will your child learn appropriate behavior and
    language from observation and modeling of
    typical children in a large setting, or does
    he/she need a highly structured, small learning
    environment, offering intensive social skill and
    behavioral training?
  • Will your child be a victim of ridicule and
    ostracism among mainstream peers?
  • Will your child have improved or lowered
    self-esteem among non-disabled peers?
  • Will your child have improved or lowered academic
    achievement among non-disabled peers?
  • HF ASD children may be socially aware enough to
    feel failure and isolation when comparing
    themselves to typical peers in class. If
    separated, they may develop pride in

High Functioning ASD Cases
  • Losing the autistic classification
  • Cases finding FAPE was denied.
  • Cases finding FAPE was provided.
  • Other

The Autistic Classification
  • S.N. on Behalf of K.N. v. Old Bridge (NJ)
    Township, The Administrative Law Judge upheld the
    school districts denial of classifying an
    Aspergers child as autistic. The ALJ found
    that the child was high functioning, attempted to
    engage others, and had well-developed expressive
    language. The ALJ instead upheld the
    classification as either Other Health Impaired
    or Specific Learning Disability, based on
    symptoms of ADHD.
  • Eric H. v. Judson Indep. Sch. Dist.,(W.D.Tex.)
    The court supported removal of the autism
    classification of a child formerly diagnosed
    with Aspergers, in part based on findings of
    excellent grades and minor discipline issues.
    Instead, the child was classified under Other
    based on findings of ADHD. The court reasoned
    that the main characteristics of Aspergers are
    the (1) qualitative impairment in social
    interaction, (2) restricted, repetitive and
    stereotyped patterns of behavior, interests and
    activities, and (3) clinically significant
    impairment in social, occupation, or other
    important areas of functioning. However, it also
    noted, that presently there is no standard
    measure to evaluate whether an individual has
    Aspergers Syndrome.

Found FAPE Not Provided
  • (i) Schoenbach v. Dist. Of Columbia, 309 F.
    Supp. 2d 71 (Dist. D.C. 2004).
  • The IEP for a child with Aspergers provided for
    one hour of specialized instruction, thirty
    minutes of counseling every week, and a full-time
    aide for the child in a mainstream setting. The
    parents sought small group instruction in all
    subject areas, staff knowledgeable about children
    with severe social disabilities, small structured
    and supervised activity groups, and a coordinated
    social, communications and behavior management
  • The due process hearing officer found the IEP
    appropriate because the child did have higher
    than average marks, had advanced in grade levels,
    and was being teased less by her peers.
  • However, the District Court found the IEP
    inappropriate. The court relied in part on
    testimony that stated that (1) the child required
    a small classroom setting (2) that social
    progress could not occur because the childs
    behavior would prevent other children from
    including her, and (3) that the aide was not
    sufficiently trained.

Found FAPE Not Provided
  • One expert testified, These children can be
    misrepresented as appearing to be achieving in a
    very concrete way, because they have a certain
    aptitude and ability to be loquacious...But
    thats misrepresentative of what theyre actually
    able to do, specifically related to academics.
    Executive function disorder is a major impairment
    that besets Asperger children. So they cant
    utilize information that they do know. And the
    information is usually in splinter skills which
    really dont allow them to function well in

Found FAPE Not Provided
  • Neosho R-V School Dist. v. Clark, 315 F.3d 1022
    (8th Cir. 2003)
  • An Asperger child was denied FAPE because of the
    lack of a proper behavior management plan,
    preventing the child from further mainstreaming
    and further academic progress. The child had been
    placed in a self-contained class, with a full
    time paraprofessional, with mainstreaming in a
    music class. The special education teacher and
    paraprofessional attempted to manage his behavior
    based on a checklist, but lacked a formal plan
    that included a functional behavior assessment
    and an appropriate system of consequences and
  • The School District argued that the childs
    report cards proved educational success, but the
    court found that the reports did not indicate at
    which grade level the child was working at any
    given time or over which period of time, and that
    his ability to progress to the next grade level
    work was only possible with a great deal of help
    from the paraprofessional. Every time the teacher
    advanced the childs work to a fifth grade level,
    the behavior problems forced the teacher to
    readjust the work back to a third grade level in
    order for the child to perform independently.

Found FAPE Not Provided
  • The court concluded that the lack of an adequate
    behavior plan prevented the child from receiving
    a benefit from his education and from interacting
    with peers in an acceptable manner.

Found FAPE Not Provided
  • D.C. v. Lawrence Township Board of Educ., OAL
    Docket No. EDS 50-04 (N.J. December 29, 2004).
  • The ALJ found that placing a 15 yr old child with
    Aspergers, among other disorders, in a
    mainstream setting with an aide and a special
    education teacher appeared destined to failure,
    and awarded the parents tuition reimbursement
    for a unilateral placement in a private school.
  • The ALJ found that the child made significant
    progress in the private placement and rejected
    the School Boards assertion that the progress
    was a result of new medication because there was
    no medical testimony to support that claim.

Found FAPE Was Provided
  • Kings Local Sch. Dist. v. Zelazny, 325 F. 3d 724
    (6th Cir. 2003).
  • A ninth-grader diagnosed with Aspergers, OCD and
    Tourettes was receiving good grades throughout
    his IEP. He participated in small group settings
    in both resource room and mainstream. The parents
    brought a due process hearing because their child
    was being repeatedly victimized and teased at
    school. They reported that his behavior at home
    deteriorated and physical manifestation of
    disorders had increased. Although the parent
    complained that life was a living hell once the
    child got home from school, the court found that
    this was not related to educational issues.
  • The court also reasoned that the child continued
    to have passing grades, and had slightly less
    discipline problems than the year before. The
    court concluded that the IEP constituted a FAPE
    and reimbursement for private school was

Found FAPE Was Provided
  • Adam J. V. Keller Independent Sch. Dist., 328 F.
    3d 804 (5th Cir. 2003).
  • A high school student with Aspergers was
    considered academically gifted, but had serious
    behavioral problems. The District proposed that
    the child remain in special education classes,
    with a full time aide, with the option of
    enrolling in mainstream classes, and training
    would be given to parents and teachers. The
    parents contended the child was being denied a
    FAPE because he was seriously under challenged
    academically and had only made incremental
    progress in his behavior. The court
    sympathized with the parents frustration that
    the childs courses had not been sufficiently
    challenging, given the childs ability and
    aptitude. Nevertheless, the court found the IEP
    constituted FAPE.

Found FAPE Was Provided
  • Lewisville Indep.Dist. v. Charles W., 2003 U.S.
    App. Lexis 24429 (5th Cir. 2003).
  • The IEP of a seventh grade child with HF PDD-NOS,
    intellectually in the superior to very superior
    range, offered mainstream classes with advanced
    placements in math and science, participation in
    a social skills communication class (although the
    child was the only student in the class), and
    training to the teachers. The child was allowed
    to leave class one minute early to avoid crowds
    and bells in hallways, and was allowed to go to
    the library during lunch to avoid crowds and
    noise. The parents placed their child in a
    private placement, where they noted that the
    child was now making friends his own age and had
    fewer behavioral incidents.

Found FAPE Was Provided
  • The parents contended that the child did not
    receive academic benefit in his IEP because (1)
    the child was only receiving passing grades,
    despite his being considered gifted and (2) the
    mainstream placement was inappropriate for his
    behavioral difficulties.
  • Nevertheless, the court found the education was
    appropriate because the child received passing
    grades (77- 92) and there was some behavioral

Found FAPE Was Provided
  • H.W. and J. W. O/B/O A.W. v. Highland Park Bd.
    of Educ., 2004 U.S. App. Lexis 18625 (3d Cir.
  • The IEP of a middle school child diagnosed with
    Aspergers was offered (a) a self-contained
    placement of eight students, (b) one-on-one
    instruction in certain subjects, OT, Speech and
    PT therapies, (c) a behavior modification plan,
    (d) mainstreamed classes, as well as lunch and
    recess, and (e) a teacher with at least two
    paraprofessionals, familiar with Aspergers.
  • In a due process hearing, the parents expert
    contended that the proposed placement lacked
    experience in the Aspergers disorder and the
    child would not have any potential friends in the
    proposed class. The court nevertheless found that
    the proposed IEP constituted FAPE.

Not Just Academics
  • M.C. v. Central Regl Sch. Dist., 81 F.3d 389
    (3rd Cir. 1996) (education involves emotional,
    social and physical growth)
  • S.C. v. Bloomfield Bd.of Educ., 2004 WL 2266864
    (OAL June 29, 2004) (education encompasses social
    judgment, relationship to peers and authority,
    and behavior management)
  • Venus Indep. Sch. Dist v. Daniel S., 2002 US Dist
    LEXIS 6247 (N.D.Tex 2002) (despite gifted
    intellectual status, child still entitled to
    special education services of social skills
    training, short term individual psychotherapy and
    behavior management)

Related Services
  • Behavioral interventions and support
  • Psychological services (but not psychiatric)
  • Social Skill training
  • Extracurricular activities
  • Speech and Language
  • Occupational Therapy
  • Physical Therapy
  • Transportation
  • Assistive Technologies (Alpha Smart, Voice
    Recognition Software)
  • School health services
  • Parent counseling and training

The Child Study Team
  • Consider CST recommendations
  • Can develop informal short-term agreements
  • (sample contained in hand-out)
  • You need not wait for a child to first fail in a
    particular placement before removing them.

IEP Goals for Elem. School Child
  • Goal To demonstrate self management skills.
  • Reduce incidents of head banging, hitting self,
    95 of the time.
  • Reduce incidents of crying and hair pulling, 95
    of the time.
  • Demonstrate ability to accept teachers no,
    stop, or wait, without expressing aggression,
    80 of the time.

Sample IEP Goals- Social Skills
  • Goal Be able to appropriately interact socially
    with non-handicapped peers. Objectives
  • Participate daily with peers in 20 minute
    structured play situation with adult mediation,
    without a meltdown or other protests
  • Demonstrate ability to play a board game with
    peers according to real rules for 15 minutes
  • At lunch/recess, demonstrate ability to initiate
    and respond to play with peer sustain play in an
    interactive manner without adult supervision for
    15 minutes
  • Demonstrate ability to play with peers with
    something other than Pokemon for five minutes

IEP- Emotional Development
  • Goal Child can self-regulate emotional state to
    enable learning. Objectives
  • Demonstrate ability to independently calm self in
    response to teacher requests 80 of the time
  • Reduce requests for teacher assistance when
    distressed to twice a week.
  • Demonstrate ability to accurately identify
    feelings when asked, 80 of the time
  • Demonstrate ability to deal with teasing by
    asserting self or seeking teacher assistance ,
    80 of the time
  • Be able to compare self to others, without
    demonstrating aggression, 80 of the time.

IEP Goals- Study Skills
  • Goal Achieve motor planning skills required for
    learning. Objectives
  • Independently remember to bring home homework 4
    /5 days a week
  • Keep work materials in desk in an organized
    manner for 3/5 days a week
  • Independently pack book bag at school and at

Sample IEP Goals- Language
  • Goal Achieve skills necessary to engage in
    conversation with a peer. Objectives
  • Demonstrate ability to engage in at least
    three-sentence social conversation appropriate
    for meeting new children
  • Be able to engage in" ask and tell conversation
    with one child of similar verbal abilities, for
    five minutes.
  • Be able to describe a movie the child has seen,
    evidencing proper topic maintenance, sequencing
    and inclusion of details, for one minute.
  • Be able to talk about a subject other than
    Pokemon for five minutes.

Sample IEP Goals- Occupational Therapy
  • Goal To demonstrate increased tolerance of
    ordinary sensory stimuli. Objectives
  • Reduce evidence of distress when faced with
    typical auditory stimuli, ex. school fire drill,
    80 of the time.
  • Participate in various age appropriate play
    activities involving strong tactile input, 80 of
    the time.
  • Learn to touch type so that 80 of school work is
    typed on AlphaSmart, and 80 is accurate.

  • Courts rely on the opinions of experts.
  • Ideally, the expert should
  • Observe child over time
  • Visit the school to observe child in school and
    with peers
  • Review entire school file and childs records
  • Interview childs teachers and other service
  • Therapists who work with child throughout year,
    on a regular basis, given greatest credibility.

Types of Experts
  • Learning and Educational Specialists
  • Behavioral Specialists
  • Psychiatrists/Neurologists
  • Social Skills (Psychologists/Social Workers)
  • Occupational and Physical Therapists

Questions to Ask an Expert
  • Degrees? Institutions? Publications? Work
  • Private practice vs. professional expert?
  • How much specific experience with this type of
  • Any bias for mainstreaming or separation?
  • Worked with both school districts and parents?
  • Known by your District?
  • Known by your attorney?
  • Availability for evaluation/ observation?
  • Willing to testify?

Expert Reports
  • Give expert list of specific issues to address.
  • The report should be well reasoned.

Retaining Experts
  • What (observe, write, testify)
  • When
  • Obtaining permission
  • Notice of cancellation
  • Termination
  • Fees and costs
  • Sample retainer letter in hand-out

  • Emerging media may help educators see HF ASD
    children as a specialized subgroup.
  • Cases indicate that it remains difficult to
    prove HF ASD children are not so HF, but more
    cases are coming out.
  • In the meantime.

They say, You Say
  • He/she was fine talking with me.
  • Experts agree that these children tend to be
    comfortable with adults. Have you seen him/her
    with peers?
  • He/she can do the work, but just doesnt want
  • Inability to consistently perform is typical of
    the disorder. Experts do not describe this as
    willful. Children with this disorder have gaps
    in abilities, and get easily overwhelmed by

They say,You say
  • Children in the class do like your child, but
    your child falsely believes that the children are
    picking on him/her.
  • Misunderstanding social cues is typical of the
    disorder, and doesnt mean that the child is not
    in real distress. Moreover, teasing may actually
    be occurring when the educator is not watching.

They say, You say
  • Your child needs to go to lunch and recess with
    the mainstream without an aid. How will he/she
    ever learn how to cope? You are preventing your
    childs growth.
  • The social and sensory demands of a typical
    public school lunchroom can be overwhelming to
    the child. Once overwhelmed, the child learns
    failure, not success. You are seeking to prevent
    trauma to the child, not his or her success. If
    the child could grow under these circumstances,
    he/she would not have the disorder.
  • Document the lack of growth/progress in the area
    at issue. Have an expert come in to observe and
    document your childs behavior and your behavior
    as a parent, if necessary.

They say, You say
  • Your child is doing fine in this class.
  • But isnt my child still doing the same work as
    he/she did last year? What happens if you add
    harder work?
  • Your child is happy in school.
  • When he/she gets home, they are out of control.
    Experts say that a child of this type can
    frequently hold it together during the day to
    avoid punishment or embarrassment, but that does
    not mean that he/she is not deeply distressed.

Thank you.Any Questions?
  • Comments and questions welcome at

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