Autism - Your Child's Legal Rights To A Special Education

What Disabilities are Covered by the IDEA?

The IDEA covers only children ages 3 - 21, with certain learning, emotional, and physical disabilities. The children covered must have one of the following disabilities:

1. mental retardation
2. hearing impairments (including deafness)
3. visual impairments (including blindness)
4. serious emotional disturbance
5. orthopedic impairments
6. autism
7. traumatic brain injuries
8. other health impairments (such as ADD, ADHD)

and need special education and related services.

This last requirement is critical. A parent must not only show that the child has one of the covered disabilities, but must also show that the child needs special education or that the disability adversely affects the education of the child. With a high functioning autistic spectrum disorder (ASD) student or Asperger's student, this can sometimes result in a dispute.

The dispute often involves whether the child's education is adversely affected. One aspect of this issue is what is the definition of "education." The school will sometimes argue that the student is maintaining satisfactory grades and that thus, the student's education is not adversely affected. However, education is not just reading, math and course study.

As defined in Educating Children with Autism, a book sponsored by US Department of Education, "Education" is the "fostering of acquisition of skills or knowledge... including not only academic learning, but also socialization, adaptive skills, language and communication, and reduction of behavior problems - to assist a child to develop independence and personal responsibility." (Educating Children with Autism, National Research Council p. 12)

Thus, a child with an autistic spectrum disorder can either qualify under the category of Autism -or sometimes under Other Health Impaired. Although technically it does not make any difference, one consideration as to which category the child falls under is the expectation of services. When a child is designated as being autistic, there is often a presumption by school personnel that the child will receive an array of services that are normally provided to a child with autism.

The IEP Team

The IDEA provides that parents of a child in special education have the right to be part of a team that decides what kind of special education the child will receive. The team can be comprised of schoolteachers, administrators, medical, health, mental health and/or educational professionals, and the child's parents. It is very important for you, as a parent, to not only be an active participant, but to be an informed and knowledgeable participant of the IDEA process. In fact, you are entitled to be an equal participant in the IEP process. If the school district denies your right to "parent participation," the school district has committed a serious violation.

If your school district does not have an appropriate program to meet your child's needs, the school is required to find one or, as a last resort, create one. By law, every child is entitled to a free appropriate public education (FAPE). This means an appropriate education, no matter what the cost.

What to Do If You Think Your Child May be Autistic? Get An Assessment

The First Step: If you can afford a private assessment, research professionals in your geographic area who are qualified to make an assessment for pervasive developmental disorders ("PDD") It is advisable to find someone who not only has the education, training and experience in PDD, but also can write a good report, advocate well for your child in an IEP, and would be a good expert witness in a due process if you ever had to go that far. For the San Francisco Bay Area, there is a list of potential private experts and private school placements on this web site.

Contact a special education attorney in your area, or talk to other parents of children with autism for a referral. If you cannot afford to hire a private assessor, send a letter to the school principal, with a copy to the school superintendent, requesting the school make a full assessment of your child. A sample letter is provided in the Sample Letters section of this web site.

When the school district advises you that an assessment will take place, write to the school asking for the qualifications of the assessor and ask that you participate in the assessment. The law requires that an assessor be qualified to make the assessment. Further, "any standardized tests" are to be "administrated by trained and knowledgeable personnel." (20 USC Section 1414(b)(3)(B)(ii)). (See Sample Letters in the Letters Section of this web site.)

Check your state law for the time lines that are applicable to assessments. In California, for instance, the school has 15 days to give you a proposed assessment plan containing a notice of parents' rights. Days between regular school sessions and school vacation days of more than 5 days are not counted. The school must complete the assessment completed within 50 days.

It is advisable to ask an autism expert which tests would be appropriate before the assessment begins. If the school fails or refuses to perform the appropriate assessments, does not have a qualified professional to make the assessment, or takes too long, see an attorney or advocate. Again, be sure to write the school before the assessment takes place and ask for the qualifications of the assessor.

Whether you hire a private expert or have the school district provide an assessor, it is recommended that before the assessment is begun, that you ask the assessor to include the following in the assessment report:

1. The tests that were performed and a description of the assessment.
2. A diagnosis of the child's disability or a description of the child's disability
3. A description of the unique needs of the child
4. A description of how the child's disability adversely affects the education of the child
5. Recommended Goals and Objectives for the child
6. A description of the recommended placement for the child including: classroom environment, teaching methodologies, qualifications of personnel, teacher/staff to student ratio, whether the child needs an aide and the qualifications of the aide etc.
7. The teaching methods that should be used
8. The services that should be provided with specificity as to how many times per week, maximum group size, qualifications of the provider, etc.
9. What the consequences would be if the program or services were not provided.

(Numbers 5 and 9 are helpful but not absolutely essential in most cases.)

It is much easier to get the expert to address these areas if the parent requests that the report cover them BEFORE the report is done. Experts are often reluctant to change a report after the parent or school receives it.

Keep a Written Record

If you are requesting something, write a letter rather than make a phone call, so that you have a written record. (You may also email if it is a matter of lessor importance.) Confirm the conversations with a letter or an email (keep a copy). Confirming letters are always a good practice, not just with schools, but anytime that your legal rights are in issue. If you do not think that you need to send a confirming letter, because the matters discussed were not critical, at least make notes of your telephone conversations and personal conversations with school representatives. You never know when a letter or other tidbit will become a critical piece of evidence in your case.

Make a record and save everything in a notebook. Divide the notebook into several sections: correspondence (emails, letters, and faxes), IEPs, assessments, notes of conversations, etc. It is often a good idea to take periodic videos of your child's behaviors, social interactions, etc., so that you can demonstrate his or her progress, lack of progress, regression, and changes in behavior. Get a box and fill it with your notebook, videotapes, and samples of your child's schoolwork and other items that show the progress or lack of progress of your child.

After the Assessment is Completed

After the school receives the test results, an IEP meeting will be scheduled. (If your child is under 3 or 4 years old, an IFSP - (Individualized Family Service Plan) may be held instead) IEP stands for Individualized Education Program.

At the first IEP meeting, the IEP team will make a determination as to whether your child is eligible for special education. If your school determines that your child is eligible, the IEP team will propose a plan for your child during that first meeting. When the school schedules an IEP, ask whether your child qualified for special education, make a written request that the assessment report be provided to you a week (or at least several days) before the IEP meeting, and ask what the school plans to recommend. (See letters section)

Independent Educational Evaluations (IEE)

If the school determines that your child is not eligible or you otherwise disagree with the assessment, you can request a free independent educational evaluation. You are entitled to a free evaluation from a private expert in your area if the school district's assessment was not appropriate. Although the school district may provide you with a list of assessors, you are not limited to the experts they suggest.

The school district must either pay for the assessment or file for due process on the grounds that their assessment was appropriate. Many times, if you have a credible argument that their assessment was not appropriate, the school district will not contest the request for an independent educational evaluation. Even if you cannot afford a full private assessment, you may want to have a private expert review the school assessment to see if it was appropriate. The private expert may be able to determine that it was not appropriate for a variety of reasons. (Failure to assess in all areas of disabilities, failure to adhere the test protocols, use of the wrong tests etc.) It is a good idea to consult with a special education attorney about an independent assessment. (See Code of Federal Regulations Section 300.502 for more information.)

The IEP Meeting

Once your child qualifies for special education, the process becomes a lot more complicated. There are many different possible educational programs that can be provided to a child with autism. You need to become knowledgeable about what placement and services are the most appropriate for your child.

Although the school will make recommendations, and those recommendations may be appropriate for your child, you need to determine on your own whether the program is truly appropriate. The school's recommendations can be heavily influenced by cost, personnel or other factors that legally should not be a factor in placing your child into an appropriate program under the IDEA.

Educate Yourself

You know your child better than anyone and you need to educate yourself about autism programs such as Applied Behavior Analysis (ABA), Discreet Trial Training (DTT), TEACCH, Floor Time, Sensory Integration, Picture Exchange Communication System (PECS), Lovaas, Social Stories, and other methodologies that have worked for children with autism. Books, the Internet, tutors, therapists, mental health care specialists, and attorneys or advocates can be good sources of information.

Recommended books are: Educating Children with Autism by the National Research Council (sponsored by the Department of Education) This book is filled with recommendations that you can use to obtain an appropriate program. It is not easy to read for a layman, but well worth the time and effort.
Educating Children with Autism can be downloaded a page at a time for free or a hard copy ordered here. It is often cited by due process hearing officers and the courts. Quote the recommendations in the book to help secure appropriate services.

How Well Does Your IEP Measure Up by Dianne Twatchman-Cullen through Starfish Press is a great book for IEP's.
Creating a Win-Win IEP for Children with Autism by Beth Fouse and
Better IEPS by Bateman and Kinden are also very good.

The author's book Autism: Asserting Your Child's Rights to a Special Education can be purchased on this site.

Remember, your child is entitled to a free appropriate education (FAPE). There is no limit under the IDEA as to the cost. However, to ensure that your child obtains a free appropriate public education, it is up to you to educate yourself as to what is appropriate. It is strongly advised that you seek help from books, parent groups, attorneys, autism experts, and other professionals.

Goals and Objectives

If your child is eligible for a special education, the IEP team will draft a set of Present Levels of Performance ("PLOP") and Goals and Objectives for your child. Before you attend the IEP meeting, you should spend some time determining for yourself, what Goals and Objectives are most appropriate for your child. The Goals and Objectives are important because your child's placement into a program largely depends on your child's needs, as defined in the Goals and Objectives and by the assessment. In other words, the Goals and Objectives will generally determine what program and services your child will receive.

Goals and Objectives should be specific, measurable, and based upon your child's present levels of performance. General Goals and Objectives are not helpful, because there can be disagreement as to whether they have been met. A data collection system should often be implemented that shows the progress or lack of progress towards the goals and objectives. Talk to your expert about proposed Goals and Objectives, the appropriate program and services, and how the school personnel should keep data on the progress (or lack of progress) of you child. Goals and Objectives should be developed for each service that your child receives.

Services to Which Your Child May Be Entitled

1. speech-language pathology and audiology;
2. psychological;
3. physical and occupational therapy;
4. recreation, including therapeutic recreation;
5. early identification and assessment of disabilities;
6. counseling, including rehabilitation counseling;
7. orientation and mobility services;
8. medical services for diagnostic or evaluation purposes;
9. school health services;
10. social work services in schools;
11. parent counseling and training; and
12. transportation.

If you think that your child with autism may need one or more of these services, ask your private expert if he or she would recommend it, or write to the school requesting that the school assess your child for the service. You can also ask the school for the service without asking for a prior assessment, but unless you believe that they will grant your request, you will generally have a better chance of securing the service by having an expert in the field recommend it.

Make sure the professional who is assessing your child is qualified in autism and the service that you are requesting. You can accomplish this by writing to the school and requesting the qualifications of the assessor immediately after the school sends you notice that the assessment will take place. For instance, if you think that your child may benefit from assistive technology, the assessor should be an expert in assistive technology for special needs children and have education, training and/or experience with autism.

If your child receives a service, write into the IEP that the service provider will keep a log of the dates and times of each session, and data as to the progress made during the session.

Teacher Supports

Another thing that you may wish to request is for teacher supports. If you believe that the classroom teacher needs education or training in your child's specific disability, make a written request in the IEP that the school district provide teacher support in the way of teacher training, or education. A request may also be made that a qualified expert provide consultation services to the teacher in your child's disability and the teaching methods that are appropriate.

Take Notes at the IEP Meeting

Take notes during the IEP meeting, or better yet, have someone else come with you who can take notes. When you go home, put your notes into your notebook. If the notes are about something significant that occurred at the meeting, attach your notes to the IEP as a Parent Attachment. (See the letters section for a form Parent Attachment.) In some states, you can also tape record the IEP meeting. For instance, in California, you can tape record the meeting, as long as you give a 24-hour written notice.

In Most Cases, Don't Sign the IEP Papers Until You Sleep on It

At the end of the IEP meeting, you should receive a copy of the IEP document. If not, ask for it. The IEP may include the notes that one of the school representatives has taken, goals and objectives, and a statement of offered placement and services. You will most likely be asked to sign the paper and check a box marked "I agree." If you do agree and the issues are simple, - no problem, but be sure that you agree with every sentence in the documents that they give to you before you sign. If you do not agree with anything in the IEP, write that you attended the IEP, but are not making a decision at this time, or state what you do not agree with.

In most cases, it is better to take the papers home with you. That way, you will have an opportunity to read them outside the stresses of the meeting, have time to consider what is written, and call an expert for advice, if need be. Make a copy and deliver the signed IEP to the school the next day.

It is very difficult to try to absorb everything that is going on in the IEP meeting and to make quick decisions about your child's future. For most parents, in addition to the complexity of the law, it is emotionally upsetting to confront your child's disabilities. The school can put tremendous pressure on you to sign releases, placement recommendations, assessment authorizations, eligibility agreements, and/or a statement that you agree with everything in the IEP. The papers and the legalities can be complex.

On top of that, the school may be asking you to make quick decisions about your child's future that could greatly affect his or her academic and emotional well being for many years. Don't be afraid to tell the school personnel that you need to think about it overnight. Don't let them pressure you into signing on the spot.

What is a Parent Attachment and How Do You Make One?

Many times, parents do not intend to sign the papers at the IEP meeting, but everything looks acceptable and they sign. Then, that night, they see something in the papers that they wish that they had not agreed. If this happens to you, immediately write a letter to the school "rescinding" your agreement as to that particular item.

Waiting for a day before signing an IEP will also give you an opportunity to draft a "Parent Attachment" if you need one. A Parent Attachment is a paper that sets forth your position, what you want, what you disagree with, and anything else that would be appropriate.

When you sign the IEP documents the following day, simply give them to the school with the Parent Attachment. Don't be intimidated by someone telling you what you can and cannot put in the Parent Attachment. If necessary, mail it to the school with a cover letter.

There is no special format for a parent attachment. For technical legal reasons, it is best to write on the top of a piece of paper "Attachment to IEP of Parental Concerns" with the date of the IEP and your child's name on the top of the document. Then, write whatever information, requests, notes of the meeting, or whatever you want to say. It is a good idea of getting in the habit of requesting any information about the placement and services that are being offered. (See Section on Prior Written Notice in the article.) If you do not agree with parts of the IEP, state what you do not agree with and what services or placement you would like to see instead. If you want more services, put your requests in the Parent Attachment or in a letter and deliver the "Attachment to IEP of Parental Concerns" to the school. (A sample parent attachment is provided in the letters section of this web site.)

If you know going into the meeting that you are likely to disagree with the school's Goals and Objectives or placement, you can also write your own proposals and opinions and attach them as a Parent Attachment at the IEP meeting. It does not matter whether you attach a "Attachment to IEP of Parental Concerns" to the IEP documents at the meeting, or go back to the school the next day and give the "Attachment to IEP of Parental Concerns" to the school with a letter asking that it be attached to the IEP. (If you hand-deliver it, get the name of person that you handed it to, and keep a written record of who it was and when you handed it to them.)

Another document the school may ask you to sign is a consent form that allows the school to obtain documents from your child's health care providers and other professionals. Think before you sign. There are times when it will not be in your child's interest to allow the school to obtain all of your child's records. Is there anything in the records that you do not want the school to see? Consider limiting the consent to certain items. Also, you should limit the consent to a certain period of time, instead of leaving it open-ended.

Remember, whenever you ask for services, a placement, or any change in an IEP, make your request in writing.

What Kind of Special Education Is Your Autistic Child Entitled To?

The key word here is appropriate. Your child is entitled to an appropriate education - one that is tailored to your child's special needs. Your child is entitled to an appropriate placement - one that will allow your child to make educational progress.

Do not ever use the word "best" when talking about what kind of education you want for your child. By law, your child is entitled to a free, "appropriate" education. Your child is not entitled to the best education. If you ask for the best placement or education, you can hurt your case.

Placement is a term that refers to the specialized program that your child will receive. Both the placement and program must be free and appropriate for your child. Of course, the word "appropriate" is ambiguous. What is an appropriate education?

The Supreme Court in the famous special education Rowley case determined that under the IDEA, a school district is required to provide a program that (1) meets the child's unique needs (2) provides the student with some educational benefit and (3) is appropriate. (The Supreme Court Rowley case also emphasized the importance of the school to comply with the procedural requirements of the IDEA.)

One of the reasons that assistance from a private expert is so important is that the standard for special education -that a child should receive an appropriate education- is so nebulous. Sole reliance on school personnel who may not be qualified in autism or who may be pressured to recommend certain programs because of financial concerns of the school can lead to an inappropriate program.

What teaching methods will be used to educate your child? Are they appropriate? Sometimes, the school will choose a methodology that you believe is inappropriate. You can try to persuade the school through an autism expert that the teaching method they have chosen is not appropriate. You could file for mediation and due process.

Another alternative is to start the program with a good data collection system that monitors the progress of your child. Then, if your child is not making appropriate progress, you can call for an IEP and request a different teaching method. Consult with your expert.

For instance, if the school district has a program that uses the TEACCH method, you may not able to force them to use an Applied Behavior Analysis ("ABA") program. However, if the school uses a certain methodology and your child does not make appropriate progress, then you would have a good argument that the school's program is not appropriate. You then may be able to force the school district to provide a different program for your child or reimburse you for a private school or program that you provide.

Make sure that the school has a data collection system in place for your child's educational program. A data collection system used with each child in the program provides information as to the effectiveness of the program in general and for your child individually.

Just because the program is working well for other children does not mean that it is appropriate for your child. As stated in Educating Children with Autism, a book by the National Research Council that was sponsored by the US Department of Education, regarding specific intervention approaches or strategies, "No one approach is effective for all children, and not all children in outcome studies have benefited to the same degree." The National Research Council also recommends that data be kept on each individual child to determine whether the child is benefiting from the educational program.

What is Least Restrictive Environment? ("LRE")

Your child is entitled to the least restrictive environment. This means that a child with a disability, if appropriate, should be mainstreamed to take classes with other public school students without disabilities. This can sometimes be accomplished with accommodations, or even a one-on-one aide to assist your child. The aide should be trained and educated in autism. Many times, a child with autism will be mainstreamed into a regular education classroom for part of the day and take special education classes for part of the day.

Sometimes a child with autism may attend art classes or music classes in the general education program and spend the remainder of the day is special classes. Younger children might join the regular education children for games.

What is appropriate is determinative. It may be more appropriate for your child to be placed in a special education program, placed in a special needs school or home instruction program, rather than the regular education classroom. On the other hand, your school may not have an appropriate program and your child may need to be placed in a private school at their expense. The school should have a continuum of different placement options for children who are covered under the IDEA. These might include tutors, aides who assist in the classroom, special schools, special classes, private school placement, home instruction, even hospital, medical, or special boarding care, in some situations.

As to when a child should be mainstreamed into a regular education classroom, there are different standards in different federal court circuits (groups of states).

For example, if you live in the 9th Circuit, there is a three-pronged test. (States: CA, AS, AR, HI, ID, MT, NV, OR, WA)

1. The school may, in making a determination of the placement of the child, compare the educational benefit to the student in a regular education program with the benefit that the student would receive in special education.
2. Another factor is the benefit that a special ed child would receive from interacting with nondisabled students. This second factor is frequently an important part of the decision in making a determination of placement for an autistic child.
3. Finally, the degree of disruption of the education of the other students that results from the presence of the autistic child in the classroom is considered. This also, is an issue that often arises when an autistic child is placed in a regular education classroom. Sacramento v. Rachel H (Holland) 14 F. 3rd 1398 (9th Cir. 1994)

Children with autism often need an aide to assist them in the education process and for placement in the least restrictive environment. Make sure that the teacher and aide are properly qualified and have education, training, or experience in autism. As addressed previously in this article, teacher training and education may be necessary.

Click the button in the sidebar on the left to read a sample chapter on qualifications of personnel in the book, Autism: Asserting Your Rights to a Special Education, written by the author of this article. This chapter along with the other chapters will show you how to ensure that all personnel who work with your child have the proper education, training, and experience in autism.

Schools are also required to provide appropriate support services to your child. Children with autism often need, and are entitled to, health therapy and psychological help, speech therapists, occupational therapy, social and counseling services, physical therapy, and other services. The school may also have to pay for assistive and technological aids, such as computers, and other modern aids. Severely disabled children sometimes need expensive, new technology in order to obtain an appropriate education. If you think that your child may need one these services, make a written request for assessment by a qualified expert in autism and the particular service.

If the school is obligated to provide services or a placement that is away from the school and home, the school is required to pay for transportation of the student. Sometimes the cost of transportation can be more than the cost of the placement or service itself. All of the above services, placements, and training, must be provided or paid for by the school, if they are appropriate.

If you get what you want in the IEP, do not think that you can now relax and stop worrying. Check with your child and the school to see that the school is, in fact, following the IEP. Check the service log to make sure that the services are being provided. Many times, the agreed upon IEP does not get to the teachers, the teachers do not follow it or the service providers do not provide all the services that are required under the IEP.

Least Restrictive Environment - Inclusion

To the maximum extent possible, children with disabilities should be educated with regular education children. There is a preference in the IDEA that your child be educated in his neighborhood school in the regular education classroom.

If it is not appropriate for the child to be in the regular education classroom, the child can be placed in a more restrictive environment such as a resource class or another special class in the school. However, it would be unduly expensive for every school that has a child with a certain disability to have a program catering to that disability at the school. Since school districts have limited resources, under the law, school districts may join with other school districts to provide certain services jointly. A child is entitled to be placed at an appropriate school that is closest to his home. When the child must attend a school that is not the closest to their home, the child is entitled to transportation.

Neither the statute nor the code uses the term "inclusion." However, the word "inclusion is commonly used to describe placing a disabled child in a regular education classroom. This is also often referred to as "mainstreaming."

In making a determination as to whether a disabled child should be "mainstreamed" or "fully included," the statute requires that the IEP team consider providing the child with supplementary aids, modifications and accommodations. Some examples are modifications to the curriculum, one-on-one aides, special training for the regular education teacher, computer-assisted devices and seating arrangements. There should be a continuum of placement options available to the school.

Depending on which federal circuit you live, there are different considerations to determine if your child should be mainstreamed.

If you live in the 3^rd Circuit, Oberti is the key case. (States - PA, NJ, DEL) Oberti was an autistic child who was disruptive in the regular educational classroom and the school sought to move him to a more restrictive environment. The court found that inclusion is a right, and that success in special schools in special classes do not lead to successful functioning in integrated society.

The 5^th Circuit uses the Daniel R.R. test. (States: MS, LA)

1. Can appropriate program be provided to the child with a supplementary aids and services?
2. When a student is placed in a more restrictive setting, the student should be integrated to the maximum extent appropriate. (Daniel R.R. v. State of Education, 874 F. Second 1036 (5^th Cir. 1989))

The 6^th Circuit employs the Roncker test. (States: MI. OH, AR)

1. Comparison of the educational benefits of a restrictive setting with educational benefits that the child would enjoy in a regular setting.
2. The degree to which the student will disrupt the regular classroom, and the cost of the regular classroom placement. (Roncker v. Waltor, 100 F. 2nd 1058 (6th Cir. 1983); AW v. Northwest R-1 School District 813 F. 2^nd 158 (8th Cir. 978)).

In the 8^th Circuit, there is the Light case. (States: ND, SD, IA, MO, AR)

The court held that all circumstances surrounding the student is be taken into account when determining the proper placement and that for some students a general classroom may not be appropriate even with aides and services. (Light v. Parkway, 41 F.3rd 1223 (8th Cir. 1994)).

If you live in the 9^th Circuit, there is the Holland test. It is a three-pronged test. (States: CA, HI, ID, MT, NV, OR, WA, AL, AZ.)

1. The school may, in making a determination of the placement of the child, compare the educational benefit to the student in a regular education program with the benefit that the student would receive in special education.
2. Another factor is the benefit that a special education child would receive from interacting with nondisabled students. This second factor is frequently an important part of the decision in making a determination of placement for an autistic child.
3. Finally, the degree of disruption of the education of the other students that results from the presence of the autistic child in the classroom is considered. This also, is an issue that often arises when an autistic child is placed in a regular education classroom. (Sacramento v. Rachael H (Holland) 14 F. 3rd 1398 (9th Cir. 1994))

In considering placement and the least restrictive environment, the needs of the student is paramount, not the convenience of the school. Although a specialized program offered by the school may appear to be the most appropriate at first glance, there are many factors to consider. If, for instance, the transportation time is great and the child cannot tolerate a long ride, that placement may not be appropriate; even if the services seem to be superior to a placement that is closer to home. If the child's friends attend the school that is close to home, the socialization of the child may be adversely effected, which can be an important consideration with an autistic child.

The services provided to the child are also an important consideration. Speech and language, physical therapy, occupational therapy, psychological services, recreation and therapeutic recreation, and others can be critical factors.

As stated above, a key provision in the law that can help a child in mainstreaming is support for personnel.

As part of the IEP team, you as a parent are entitled to play an active role in the decision-making process. If least restrictive environment is an issue, it is important to involve your expert. Your professional may be able to provide expert opinions as to why the placement that you seek is the appropriate placement.

Functional Behavior Assessments ("FBA") and Behavior Intervention Plans ("BIP")

Although behavior should be an integral part of the educational program for most students with autism, if a parent feels that behavior is an issue, the parent may wish to make a specific written request for a Functional Behavior Assessment ("FBA"). A Functional Behavior Assessment should be performed by an expert who is qualified in autism. The purpose of the assessment is to determine the cause of the unwanted behavior and to develop an intervention. It is very important to make sure the person who is performing the Functional Behavior Assessment is qualified.

The assessment should recommend a written behavior intervention plan ("BIP") that can be implemented by the school personnel. A parent should make sure that all school personnel who are implementing the IEP to the student have a copy of the behavior intervention plan.

Extended School Year Services ("ESY")

Extended School Year Services ("ESY") are provided to a student with disabilities outside of the regular school hours. Most common ESY services take place during vacations and holidays. Generally, the parent must show there will likely be regression if ESY services are not provided, although there are other grounds such as "emerging skills." The National Research Council (NRC) in Educating Children with Autism concluded that all autistic preschool children should have minimum of five days, 25 hours a week, with FULL-YEAR PROGRAMMING of instruction. Start planning for ESY in late February. You may need an expert to show likely regression and to recommend an appropriate educational program for ESY. If you cannot afford a private expert, request an assessment by a qualified expert to determine whether ESY is appropriate.

What to Do When the School District Offers a Placement and Services in an IEP?

A parent is entitled to informed consent to an IEP. A parent should learn as much as possible about the placement and services so parent can determine whether it appropriate for the child. Fortunately the IDEA gives parents substantial rights to obtain relevant information so that they can give informed consent to the IEP (or refuse to consent on the ground that the offer is inappropriate)

Obtain as much information as possible. If you can, have your expert observe the offered placement or observe it yourself. Submit questions in the IEP or write to the school with questions about the placement.

There is a statute in the IDEA that gives parents the means to obtain knowledge about a program and services offered by the school district in an IEP. It is 20 USC 1415 (b)(3) Prior Written Notice. THIS IS IMPORTANT - USE THIS STATUTE TO OBTAIN INFORMATION.

Prior Written Notice
20 USC 1415 Subsection (b) (3) states that prior written notice must be given to a parent when the district:

1. Proposes to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child; or
2. Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.

Subsection (c) Content of Written Notice. The notice required by subsection (b) (3) must include:

1. A description of the action proposed or refused by the agency
2. An explanation of why the agency proposes or refuses to take the action
3. A description of any other options that the agency considered, and the reasons why those options were rejected
4. A description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action
5. A description of any other factors that are relevant to the agency's proposal or refusal
6. A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and
7. Sources for parents to contact to obtain assistance in understanding the provisions of this part. (See also 34 CFR 300.503 (a)(b))

The Prior Written Notice Statute is a powerful tool to obtain information about your child's educational program. A key subsection is 20 USC 1415 (b)(3)(c)(5) that requires schools to provide a parent with "a description of any other factors that are relevant to the agency's proposal or refusal." Questions about the qualifications of the personnel, the teaching methods, the classroom environment and other subjects may be relevant to the proposed offer of placement and services. Parents should submit written questions in these areas and others.

When the school district fails to provide the required written notice, it has committed a procedural violation. If that violation results in a loss of educational opportunity or prevents a parent from participating (such as prohibiting the parent from giving informed consent), a claim can be made that there had been a denial of a free appropriate public education (FAPE). The parent may be able to prevail on that issue if the parent takes the case to due process. Additionally, there is an argument that the school district is precluded from attempting to reduce reimbursement of attorneys' fees to the parent and the parent's attorney. This gives the parent leverage in obtaining a fair settlement of the claim.

For this reason alone, it is important that you make all your requests in writing. You can download some of the letters from this site.

Transition Services

Beginning in July 2005, the school district must provide transition services to a student by the time he or she reaches the age of 16. Transition services should prepare the student for life after high school and can include job training, learning transportation, general living skills, etc. Sometimes special assessments need to be made by qualified experts in these areas. It is common for the school to need to bring in outside state agencies and personnel to provide services. Take care in writing the goals and objectives for transition services. Your child will no longer receive transition services when the goals and objectives are met or when the child turns 21, whichever occurs first. There is an exception for compensatory services. Consult with a special education attorney.)
Read more on Transition Services - Training to deal with life after high school.

Stay Put

Stay Put means that you are entitled to have your child stay in the last placement that you agreed to in an IEP and which IEP was implemented. If your child has an IEP program that was signed by you and implementation has begun, and the school decides that they want to change it, but you disagree, you can force them to continue the program until the school obtains a due process decision. (See below) Interim placements such as summer programs are not included in the right to stay put. Once a hearing officer renders a decision in a due process, that becomes the stay put placement.

Compensatory education ("comp ed")

Compensatory education is a term for services that are provided to a student in addition to the current program the student is entitled to by law. It is provided to a student who can show that the program that he was previously provided was inappropriate.

A showing that a student is entitled to compensatory education can be accomplished by proving the program written into the IEP was inappropriate or that the school did not give the student the program that was set forth in the IEP.

Compensatory education is an equitable remedy, and there is no obligation to provide day-for-day or hour-for-hour compensation. "Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA." (Student W. v. Puyallup School District, 31 F. 3d at 1497).

Reimbursement Can Be Reduced When the Parent is Uncooperative. Among the factors to consider is the conduct of the parties. (W.G. v. Board of Trustees of Target Range School Dist. (9th Cir. 1992) 960 F.2d 1479, 1486). This is a common defense raised by the school districts. When a parent seeks reimbursement, the school alleges that the parent did not cooperate in the IEPs, did not observe or consider the offers of placement and services, or otherwise hindered the school from making an appropriate offer. It is not uncommon for a hearing officer to reduce the reimbursement amount to a parent, based on the uncooperative conduct of the parent.

Disciplinary Actions against Special Education Students Under the 2004 Amendments to the IDEA

Special rules apply to a child in special education regarding discipline. These rules were changed in the 2004 Amendments to the IDEA. (See 20 USC 1415(k)) If your child is not in special education and the child is having disciplinary problems, you may wish to ask for a free assessment to see if your child has a learning disability, is emotionally disturbed or has another disability. Special education students have rights under the IDEA that regular education students do not have.

The discipline procedures under the 2004 IDEA only apply to a change in placement that continues for more than 10 school days. If the school seeks a change in placement of over 10 school days because of a discipline matter, the relevant members of the IEP team must meet and determine that the conduct was not a manifestation of the child's disability. This IEP meeting must take place within 10 days of the disciplinary action.

The burden of proof is now on the parent to show that the alleged disciplinary infraction was a direct result of the child's disability to avoid a change in placement of over 10 school days. Under the 2004 IDEA, the parents must show that the conduct was caused by, or has a direct and substantial relationship to the child's disability, and was not an attenuated association, (such as low self-esteem.)

If the parent cannot prove that the conduct of the student was a direct result of the child's disability, the school can change the placement for over 10 school days. However, the school must still continue to provide a special education to the child.

If the school determines that the conduct was a manifestation of the disability, the school must conduct a functional behavior assessment and implement a behavior intervention plan. If the child already has a behavior intervention plan, the school must review the plan and modify it, if necessary, to address the unwanted behavior and (except in the special circumstances described below) return the child to the placement. However, if the parents and school agree, the placement can be changed.

There is an exception for special education students who engage in "special circumstances." School personnel may remove a student to an appropriate interim alternative placement for not more than 45 school days "without regard to whether the behavior is determined to be a manifestation of the child's disability" if there are special circumstances.

There are special circumstances when the child:

1. carries or possesses a weapon to or at school, on school premises or to a "school function."
2. knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises or at a school function.
3. inflicts serious bodily injury upon another person while at school, on school premises, or at a school function.

A parent can appeal a disciplinary decision by the school by requesting a due process hearing. After due process is filed, the child will remain in the changed placement until a decision of the hearing officer or the expiration of the suspension, whichever occurs first.

Cases of this nature are given priority and there is little time to prepare the case. It can sometimes be difficult for a parent to find a special education lawyer on such short notice. Further, for a parent to carry the burden of proof, in cases where there are not special circumstances, it is usually necessary to have a private expert who can provide an expert opinion that the conduct was a direct result of the child's disability.

What Happens If I Disagree with the Eligibility Determination, the Educational Program or Disciplinary Action Taken Against My Child with Autism?

Unless you are an attorney or feel comfortable becoming an advocate and becoming competent in Education Law, you should talk to an attorney or advocate that is knowledgeable in Special Education Law.

Resolution Meeting, Mediation and Due Process

When there is a dispute between you and the school and you cannot reach an agreement, you have the right to take your dispute to mediation and then to due process. After July 1, 2005, you may be required to attend a Resolution Meeting with the school prior to due process. Consult with a special education attorney before attending such a meeting.

Mediation is a meeting with a neutral third-party where the mediator explores settlement and tries to obtain a written agreement between the parties. Due Process is a hearing before a hearing officer who rules on the case.

The difference between mediation and due process is that in mediation, the mediator can only help facilitate a settlement of the dispute. There is nothing binding, unless all parties agree to a settlement.

In Due Process, there is a hearing - it is like a trial. There are expert witnesses, opening statements, examination and cross examination of the witnesses, including the parents in most cases, objections, motions, closing statements, closing briefs - then the hearing officer makes a ruling. Given the cost of due process for both sides - attorneys' fees, time, etc., it is generally worth giving mediation a chance. In our experience in litigation, mediation is often successful.

Generally, parents should not go to Mediation and Due Process against the school's experienced special education attorneys without legal counsel that is experienced in special education law. The success rate at due process hearings is extremely low when the child is not represented by a special education attorney.

For instance, in reviewing the cases on autism for 2001 and 2002, we found that in California, whether the child won or lost his case was dependent on whether an attorney represented the child.

Record of Due Process Case Wins and Losses for Years 2001-2002 (and one 2003 case)

As you can see, when due process is necessary, a Special Education Attorney can be critical to a successful outcome.

ADA and Section 504

ADA and Section 504 are laws that you can use to prevent discrimination against your child with autism. It gives your child the right to equal access to activities at school, field trips, access to most buildings on campus. The school must provide accommodations, including aides, ramps to buildings for wheel chairs, etc to accomplish equal access.

If You Don't Know the Answers to These Critical Questions, Dave Sherman, Special Education Attorney, Can Help.

1. Has your child had an appropriate assessment by an expert who has education, experience, and/or training in autism? How do you obtain such an assessment at no cost?
2. Do you have a good handle on how IEP's work? What should be your strategy in an IEP?
3. Is your child in the least restrictive environment (LRE) that is appropriate?
4. What is Stay Put? How can you keep your child in his current program when the school wants to change it?
5. What is appropriate assistive technology for your autistic child?
6. Transition Services - Your Child is going to be out of school and special ed in a few years, then what?
7. Compensatory Education - Your school has not been providing an appropriate program or has not followed the IEP. You want services to compensate him. How do you obtain them? How can you obtain reimbursement for money spent making sure that your child had appropriate services or placement?
8. How do you get your child's school records, including test protocols? How do you keep your child's records confidential?
9. Are you entitled to damages from the school?
10. Do you know how to obtain appropriate services during the summer by qualified personnel?
11. Does your child need a private school?

These questions and more are answered in Dave Sherman's book, "Autism: Asserting Your Child's Rights to a Special Education."

In addition to information about the law on autism, this book includes letters that parents can download or copy from a restricted section of this web site and a sample parent attachment to an IEP with a number of optional sections.

Draft copies with supplements containing the 2004 IDEA Amendments are available now. The final version of the book will be published in around May or June of 2005. If you need information about any of the subjects herein prior to the publication of the book, email the author through the email address provided under contact information.