Popular Post: Academic Progress Alone is not FAPE

[This post was first published on March 17, 2015. Since then, it has been shared on social media nearly 1,000 times] 

A recent Massachusetts Bureau of Special Education Appeals (BSEA) decision makes clear that an Individualized Education Program (IEP) that allows for academic progress is not enough. Even when an IEP is appropriate academically, if it does not provide appropriate services to address other areas of need, such as social and emotional needs, it is a denial of a Free and Appropriate Public Education (FAPE).

In Student v. Acton and Acton-Boxborough Public Schools – BSEA # 14-05736, hearing officer Rosa Figueroa, supported a family’s decision to unilaterally place their fourteen-year-old child, who has a diagnosis of autism, in a private school. According to the hearing officer, “the sufficiency of a student’s IEP is not measured solely by [ ] academic success … an IEP that provides FAPE must promote a student’s development in all areas of need.”

The student called everyone a friend but did not understand the elements of friendship (e.g., trust, having fun together, etc.). He had limited understanding of perspective taking and the nuance of social norms. After school, he preferred to play video games, watch television, or read by himself. The social isolation was taking an emotional toll.

The hearing officer gave significant weight to an independent evaluator’s testimony that Acton’s program was fragmented, and it “lacked the type of cohesiveness necessary for the natural development of relationships Student required.”

The parents and independent evaluators asked Acton repeatedly for a goal related to friendship, and for a program that could provide the student with appropriate peers. The hearing officer found that Acton failed to provide these and other necessary elements of an appropriate program.

On the other hand, the private placement (Learning Prep School), provided the student with like peers and direct social skills instruction throughout his school day. As a result, the student made significant social and emotional gains over a short period.

Despite a finding that “from an academic standpoint Acton provided Student a program that offered him a FAPE, and its proposed seventh-grade academic program would have also afforded Student a FAPE” the parents still prevailed. The hearing officer found that Acton’s program did not and would not allow for social and emotional progress. The hearing officer awarded the family tuition reimbursement and ordered Acton to continue to pay for the student’s placement at Learning Prep School.

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IEP Protections and Autism

The Autism IEP Act, championed by Massachusetts Advocates for Children, took effect in July 2006, amending M.G.L c. 71B § 3. Fast approaching its 10-Year anniversary, the law provides critical protections for students on the Autism spectrum and has had a significant impact on how school districts meet the needs of students.

The law requires that an Individualized Education Program (“IEP”) Team consider and specifically address the full range of a student’s complex communication, social, behavioral, and academic needs resulting from Autism Spectrum Disorder (ASD) to help ensure the provision of appropriate supports and services.

Following the passage of The Autism IEP Act, the Massachusetts Department of Elementary and Secondary Education issued an Advisory to school districts instructing that “[i]mpairment in communication is one of the defining characteristics of ASD; therefore communication skill development should be addressed as an essential piece of the student’s IEP.” Further, “[p]rogress in social skill development is a likely focus within the IEP of every student with ASD.”

Massachusetts Bureau of Special Education Appeals (BSEA) hearing officers have highlighted the importance and power of the protections. In Re: Amherst-Pelham Regional School District – BSEA # 12-1264 provides a helpful roadmap and analysis of the law. In Amherst, the parents of a twenty-one-year-old man challenged the appropriateness of their school district’s program and sought a private residential school placement for their son. Applying the content of the Autism IEP Act to the facts of the case, the hearing officer found that the district had failed to address the student’s communication and social skill needs, as required, and, in turn, failed to provide a Free Appropriate Public Education (FAPE).

The hearing officer wrote, “Social skill development is also a central area of focus for Student, as it is generally for all students on the autism spectrum. As discussed above in the Legal Standards section, [The Autism IEP Act] requires Amherst to have an IEP for students on the autism spectrum to ‘specifically address the … the need to develop social interaction skills and proficiencies.’” Further, “..notwithstanding the critical importance of communication skills, as recognized for many years…Student has virtually no functional communication skills, with the result that he is not able to express his choices or preferences in a reliable manner with respect to the vast majority of routine decisions and life choices…”

Student v. Belmont Public Schools – BSEA # 13-05177, and In Re Uxbridge Public Schools – BSEA # 11-1115 discuss eligibility for students on the autism spectrum, following the passage of the Autism IEP Act. Importantly, in Belmont, the hearing officer highlighted that an IEP Team must consider and specifically address a student’s need resulting from autism, even if the school district disagrees with the diagnosis.

After quoting the entirety of the Autism IEP Act, the hearing officer wrote, “On cross examination it was clear that the Team did not discuss Student’s engagement in repetitive activities, stereotyped movements, resistance to environmental changes, and the impact of changes in daily routines, even though the Belmont service providers, evaluators and teachers testified as to observations of some form of manifestation of same, as discussed in the Facts section of this Decision… Belmont’s witnesses conceded that no meaningful discussion regarding the diagnosis of autism ensued because the Belmont Team did not see its manifestation.”

In Belmont, the hearing officer concluded: “the evidence is persuasive that Student has made progress, but said progress is not meaningful progress in his greatest areas of need: the social, emotional and behavioral realms.” Similarly, in Uxbridge, the hearing officer, relying on the language of the Autism IEP Act, concluded that the student had significant social and communication needs that could not be remediated within the context of a general education program.

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Academic Progress Alone is not FAPE

A recent Massachusetts Bureau of Special Education Appeals (BSEA) decision makes clear that an Individualized Education Program (IEP) that allows for academic progress is not enough. Even when an IEP is appropriate academically, if it does not provide appropriate services to address other areas of need, such as social and emotional needs, it is a denial of a Free and Appropriate Public Education (FAPE).

In Student v. Acton and Acton-Boxborough Public Schools – BSEA # 14-05736, hearing officer Rosa Figueroa, supported a family’s decision to unilaterally place their fourteen-year-old child, who has a diagnosis of autism, in a private school. According to the hearing officer, “the sufficiency of a student’s IEP is not measured solely by [ ] academic success … an IEP that provides FAPE must promote a student’s development in all areas of need.”

The student called everyone a friend but did not understand the elements of friendship (e.g., trust, having fun together, etc.). He had limited understanding of perspective taking and the nuance of social norms. After school, he preferred to play video games, watch television, or read by himself. The social isolation was taking an emotional toll.

The hearing officer gave significant weight to an independent evaluator’s testimony that Acton’s program was fragmented, and it “lacked the type of cohesiveness necessary for the natural development of relationships Student required.”

The parents and independent evaluators asked Acton repeatedly for a goal related to friendship, and for a program that could provide the student with appropriate peers. The hearing officer found that Acton failed to provide these and other necessary elements of an appropriate program.

On the other hand, the private placement (Learning Prep School), provided the student with like peers and direct social skills instruction throughout his school day. As a result, the student made significant social and emotional gains over a short period.

Despite a finding that “from an academic standpoint Acton provided Student a program that offered him a FAPE, and its proposed seventh-grade academic program would have also afforded Student a FAPE” the parents still prevailed. The hearing officer found that Acton’s program did not and would not allow for social and emotional progress. The hearing officer awarded the family tuition reimbursement and ordered Acton to continue to pay for the student’s placement at Learning Prep School.

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