Expert: Tim Runner - 9/7/2007

Question
QUESTION: Hey Tim,

I'm hoping maybe you can clarify for me... how I can manipulate the FAPE to help me get my son's school district to give him the acommodations he needs in his HS years.

What exactly constitutes a Free Appropriate Public Education for a child who is high functioning who falls within the ASD/HFA Spectrum.

My son Brian is almost 15 yrs old, still not classified IDEA or Section 504, although the school psychologist Jan 2007 evaluated my son and placed Brian under PDD/NOS... The school district denied both IDEA and Section 504 even with this evaluation... they told us that the school psychologist cannot make a diagnosis.

Although Brian is High Functioning....  and although he did will this year... his grades are not where they should be... for instance... this past year 8th grade in Math  Honors... he rec'd a grade of He went from 90 first quarter to 79 last quarter... he recieved a 94 on his Math Regents...

They did give him  10th grade - Math B Honors this year... he's in 9th grade...

He does fall  within the Autism/Asperger Spectrum... it's just been very difficult for me to get a diagnosis from private evaluators...

It's been a long battle and our story is very LONG .... but... I have  an up coming Impartial/due process hearing... and legal services will be representing Brian... but I have worked with lawyers before... I'd rather be a well prepared parent!  Thanks in advance for any information.  

Mary Anne


ANSWER: Mary Anne,
I don't want to be manipulating FAPE offers from the school districts. From your information it sounds like you do not have a FAPE (Free Appropriate Public Education) from the school district. I'm also not comfortable trying to give advice when you may have a lawyer. So I will just talk in generalities and refer you to your lawyer for detailed advice.

For any student to qualify for special education, they have to have a qualifying condition found on the list of conditions in the Education Code. In most cases, the child is assessed because they are having problems in school or they have one of the medical diagnoses from a doctor that qualifies for services. I encourage my clients to have written diagnoses from their child's doctor that we submit to the district when we are seeking assessments. The districts are required to conduct assessments in all areas of suspected disabilities. These can include assessments for Autism. Unless a student is doing poorly in school (or in at least one subject area), they typically don't qualify for services. I have a number of clients suffering from Aspergers and it is challenging for the ones that do well academically. Often I have them assessed for pragmatics and social skills because these are areas that often need services in spite of their grades. Some districts fight this, but many agree to assess and provide services.

I encourage you to discuss your son's situation with the lawyer. He or she has access to all the records and is in a much better place to advise you. I wish you and your son the best.

---------- FOLLOW-UP ----------

QUESTION: Tim,

I don't know why you're uncomfortable... but if you don't want to answer just let me know....   Your  answers should be based on your experience?  I thought this was sharing and helping each other out kinda thing?

I know my son is not receiving a FAPE....  but how do I go about proving this when reading the guidelines for FAPE... it's pretty vague?  

Unfortunately it's me running the show... even with a lawyer...  Legal Services is a free service.. and usually it's the parents doing all the leg work..... and having an attorney there to back me up... :)

I am well read on Mckinney's law (IDEA) and Section 504... (ADA)
Brian does have Behavioral issues... poor social skills...
teased and bullied... can't read social cues... etc... he also has been diagnosed privately with a Pragmatic Language Disorder...   

It's been very challenging to get my school district to look beyond grades!

I'm also wondering... Brian was 1 of the top students in his class from Kindergarten through 6th grade.... in 6th grade he made high honors all 4 quarters... maybe once in 7th grade.... I don't think he got it once in 8th grade...
can this  constitute.... that he's not performing to his abilities??

Brian has a lot of different things going on from within the spectrum... any suggestions on what information I need to pull together to show that this student really needs services to receive a FAPE....  

Right before winter recess... The school district wanted to put Brian in a IDT (Intensive Day Treatment) Program... I refused and told them that they needed to do a FBA... and a speech subtest... amoung other evals... which were done...
At the CSE meeting... they decided to give Brian a social skills group.... through ERSS (Educationally Related Support Services) and they did agree to make up a formalized behavior plan.... which was poorly written up.

You know as well as I do... without and IEP or 504 Plan.... they don't have to continue any of these services.... meaning withdrawal at anytime... especially budget cuts... meaning there is no law they are in violation of... and they do not have to provide/continue services.

Thanks for your time,
Mary Anne

Answer
I am sorry that you are not satisfied with the answer I gave you. Without doing an in depth case review, I do not believe I can be of more help at this time. Your lawyer should have done a case review and should be in the better position to help you than I am.

The additional information you provided in the follow-up questions helps, but much more information is needed before I can give you specific advice. The fact that the school is providing services indicates that they are providing a FAPE informally when they should be doing so formally with an IEP. You are correct that without an IEP they can terminate the services at any time. The IEP also furnishes goals and objectives for the services. You should ask for an IEP in writing and seek an IEP with goals and objectives for the services being supplies. If they do not comply, this can be another issue for your Due Process.

You indicate that you have filed for Due Process which is the appropriate thing to do. As I stated in my first answer, you need to have professionals diagnose your son to determine what services he needs. This information will be critical in your Due Process. Hopefully, your medical insurance can fund this.

I am sorry that I can not be of more help to you, but you are asking for a great deal of help -- more than I can provide in this forum. Since you already have a lawyer working with you, I suggest that you use this resource as much as you can in preparing for your Due Process. I wish you the best.