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
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:

 Asperger’s-” 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 Asperger’s, 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 educator’s 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 blame?”
By Steve Silberman
July 2003 “A World of Their Own”
September 2003
February 2005
February 2005 NBC Autism Series
Response to NBC Series
“AN OPEN LETTER TO NBC CHAIRMAN BOB WRIGHT . . .

March 7, 2005

Dear Chairman Wright:

We are representatives of seven Autism organizations who have

watched NBC’s 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 child’s behavior
 You are asking for too much
 You don’t know that much
Difficulties in Advocating
 HF ASD children's needs are not that “bad”
compared to other Spectrum children.
Difficulties in Advocating
 They’re 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 child’s

unique needs and prepare them for
employment and independent living.
 Determining an “Appropriate
Education.”
 The FAPE:
 Permits the child to benefit from the instruction.
 Provided at public expense
 Meets the State’s educational standards
 Approximates the grade levels used in the State’s
regular education
 Comports with the child’s 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 child’s potential.”
(Third Circuit)


 “Appropriate”
 Child’s 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 satisfactorily.
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 child’s 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 placement.
 Interaction with nondisabled peers may develop social and
communication skills
 Mainstreaming may work to eliminate the stigma of disability
 Fundamental right to associate with nondisabled peers
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 integration.

 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 individuality.
“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 district’s denial of classifying an Asperger’s 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 Asperger’s, 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 Asperger’s 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 Asperger’s 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 Asperger’s 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 approach.

 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 child’s
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 that’s
misrepresentative of what they’re actually able to do,
specifically related to academics. Executive function
disorder is a major impairment that besets Asperger
children. So they can’t utilize information that they
do know. And the information is usually in
splinter skills which really don’t allow them to
function well in reality.”
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
reinforcements.

 The School District argued that the child’s 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
child’s 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 Asperger’s,
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 Board’s
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 Asperger’s, 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 unwarranted.
Found FAPE Was Provided
 Adam J. V. Keller Independent Sch. Dist., 328 F. 3d 804 (5th
Cir. 2003).
 A high school student with Asperger’s 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 child’s courses had not been
sufficiently challenging, “given the child’s 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
improvement.
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. 2004).

 The IEP of a middle school child diagnosed with Asperger’s 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 Asperger’s.

 In a due process hearing, the parent’s expert contended that

the proposed placement lacked experience in the
Asperger’s 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 Reg’l 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.

Objectives:

 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 teacher’s “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
home.
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.
Experts
 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 child’s records
 Interview child’s teachers and other service providers

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 Experience?

 Private practice vs. professional expert?

 How much specific experience with this type of child?

 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
Conclusion
 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 doesn’t want

to.
 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 demands.
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 doesn’t 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 child’s 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 child’s
behavior and your behavior as a parent, if necessary.
They say, You say
 Your child is doing “fine” in this class.
 But isn’t 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

lisakrizman@att.net.
OUTLINE