Special Education Case May Have Impact on Children with Autism - What's Your Opinion?
The case has gone back and forth on appeals, with the most recent decision being in favor of the parents. Then, just this past week, the case went before the Supreme Court. Here, according to Law.com, is the outcome of that case:
The U.S. Supreme Court has affirmed a federal appellate decision allowing the father of a learning-disabled child to seek private school tuition reimbursement from New York City without first giving the city's public school program a chance to meet the boy's needs.As the parent of a child with special needs, of course, I applaud the Freston's moxy - and appreciate the value of a parent with such a high-profile position taking courageous action. And of course I know it's absurd for a parent to have to acquiesce to an inappropriate placement just to maintain the right to request a change later!Just nine days after hearing oral arguments in Board of Education v. Tom F., 06-637, the Court split 4-4, thereby affirming the 2nd U.S. Circuit Court of Appeals' finding in favor of Mr. F. -- the boy's father, former Viacom chief Tom Freston.
In its two-sentence, per curiam opinion, the Court did not reveal the judges' individual votes, stating only, "The judgment is affirmed by an equally divided Court. Justice Kennedy took no part in the decision of this case."
Per Court protocol, Kennedy did not reveal the reason for his recusal.
The case centers on conflicting interpretations of a 1997 amendment to the Individuals with Disabilities Education Act (IDEA), which requires states to provide "free appropriate" public education for students with disabilities. The specific issue is whether that law requires children -- here, Freston's son, Gilbert -- to first receive "special education and related services" from a public agency before their families pursue reimbursement.
An independent hearing officer ruled in favor of the Frestons, but Southern District of New York Judge George Daniels sided with the city. In a summary order in August 2006, the 2nd Circuit reversed Daniels' decision, saying it would lead to "absurd" results.
In the circuit opinion, Judge Edward R. Korman, the chief judge of the Eastern District of New York, sitting by designation, said the city's view of the statute would "place the parents of children with disabilities in the untenable position of acquiescing to an inappropriate placement in order to preserve their right to seek reimbursement from the public agency that devised the inappropriate placement."
Wednesday, the U.S. Supreme Court affirmed that ruling by its split vote. Throughout the dispute, which dates to 1999, Freston's supporters have argued that by forcing parents to enroll their special-needs children first in the city's schools, New York would potentially subject the already challenged students to unnecessary disruptions.
The city contended that it spent millions of dollars each year reimbursing the private school tuition spent by parents who had not first given the city's public schools a chance, as required -- the city argued -- by federal law. According to city statistics, just under one-half of the approximately 2,200 tuition-reimbursement requests filed in 2006 came from parents who had not first enrolled their children in public school.
"We're going to keep handling the cases the same way we have been," said Michael Best, general counsel of the city's Department of Education. "We're going to litigate when appropriate, we're going to settle when appropriate."
Leonard Koerner, the Law Department's appeals chief who argued the city's case before the Supreme Court, noted in an interview Wednesday that the issue may be further litigated. As a 4-4 affirmance, the decision has no precedential value outside of the 2nd Circuit.
The decision leaves a split in authority with the 1st Circuit, where an appellate panel ruled that students must first avail themselves of the public school system before their parents seek reimbursement.
If Justice Kennedy recused himself from the present case for a reason specifically related to Tom F. -- a connection with the city or a relationship with Mr. Freston -- the Court may elect to revisit the issue and, essentially, allow Kennedy to cast the deciding vote.
On the other hand, however, a "you pick, we pay" policy carries its own hazards.
To begin with, there really is no "gold standard" of educational practice for children with autism. That means that parents and districts are likely to disagree even when the district is making a serious attempt to provide an appropriate placement. If parents can simply jump ship at the first sign of disagreement, they may not bother to really look deeply into the district's offerings - or think twice about whether their preferences are based on their child's needs or their own ideals.
Then - since relatively few districts really DO offer quality program for children with autism, a large percentage of parents would be likely to simply opt for private special needs school. Tuitions for such schools can easily rise to $50,000 per year per student. It would take very few such situations to essentially bankrupt a large number of districts (or at the very least to cripple their ability to provide for those children "left behind" in district schools).
Just as disturbing is the possibility that such a ruling would essentially remove the incentive for school districts to bother providing accomodations for inclusion in their own classrooms. After all - if parents are just going to go to private schools anyway, why knock yourself out with sensory integration equipment, specialized training, adaptive gym, and social skills programs?
In short, while I do believe in a parent's right to choose the best educational setting for their child - I feel that there MUST be a better option than "you pick, we pay." Maybe it's time to get serious about developing that "gold standard," creating some meaningful benchmarks, and finding a way to make public education work for our children on the autism spectrum.
What's your opinion on this issue?
Comments
“To begin with, there really is no “gold standard” of educational practice for children with autism.”
That statement of opinion is incorrect. Several important reviews of intervention with autistic children have been conducted over the past decade, including reviews conducted in the states of New York, California and Maine and a more recent review in the UK uphold ABA as the clear # 1 educational/health intervention for autistic children. That is exactly why parents across Canada have been fighting for ABA to be introduced in our schools.
Here is what the authors of the MADSEC (Maine) Autism Task Force Report had to say in its executive summary:
Based upon a thorough examination of numerous methodologies considered as interventions for children with autism, the MADSEC Autism Task Force has characterized the interventions reviewed as follows:
• Substantiated as effective based upon the scope and quality of research:
Applied behavior analysis. In addition, applied behavior analysis’ evaluative procedures are effective not only with behaviorally-based interventions, but also for the systematic evaluation of the efficacy of any intervention intended to affect individual learning and behavior. ABA’s emphasis on functional assessment and positive behavioral support will help meet heightened standards of IDEA ‘97. Its emphasis on measurable goals and reliable data collection will substantiate the child’s progress in the event of due process.
• Shows promise, but is not yet objectively substantiated as effective for individuals with autism using controlled studies and subject to the rigors of good science:
Auditory Integration Training, The Miller Method, Sensory Integration, and TEACCH.
• Repeatedly subjected to the rigors of science, which leads numerous researchers to conclude the intervention is not effective, may be harmful, or may lead to unintended consequences: Facilitated Communication.
1) Without scientific evaluation of any kind:
Greenspan’s DIR/”Floor Time,” Son-Rise.
In the Auton case, the trial judge summarized the evidence in relation to the efficacy of ABA and quoted from the evidence, in particular, of the Government expert Dr. Gresham, who was called to oppose funded ABA:
[52] Current research has established, with some certainty, the efficacy of early intervention in assisting many children to achieve significant social and educational gains. The expert witnesses agree that the most effective behavioural therapies are those based on principles of ABA. There are no effective competing treatments. As Dr. Gresham stated, “there is no question that ABA is the treatment of choice for children presenting with autistic disorder based on over 35 years of research in the field.” He emphasized the fact that although replication of the Lovaas study was necessary, treatment should not be delayed awaiting the outcome.”
A recent study in the UK by Research Autism concluded with respect to EIBI (ABA), that it ranked first amongst autism interventions.
There is a clear and overwhelming consensus on the efficacy of ABA and that it is indeed the “gold standard” of educational interventions for autism. Contrary to what you have stated.
Harold - thanks for your comment!
I would respectfully disagree that the fact that ABA has been studied and found to be useful in the classroom makes it a “gold standard” for autism education.
First of all, in my opinion, ABA is not “education” in the usual sense at all. In fact, it’s a therapeutic intervention which, in general, focuses not on academic content but on behaviors, social skills, and life skills (though I suppose one could say that all of those skills help to prepare a child to be academically educated).
Secondly, ABA - by virtue of its metrics-based approach - lends itself to research in a way that other approaches (like Floortime and RDI) don’t. But so far as I know, ABA has never been directly compared to developmental approaches in a head-to-head manner. So we really don’t know whether it is more or less effective than other therapies. Either way, though, none of these therapies is actually geared to helping children learn academics at all.
Third, ABA is a therapeutic approach but not a setting. Parents and districts who might agree on ABA as a tool might disagree on the setting in which it should be applied; the training required to apply it; the manner in which content taught through ABA should be applied in a generalized or naturalistic setting; and so forth. So the private versus public issue remains an issue.
So, in short, I don’t think that the fact that ABA has worked well as a therapeutic intervention to teach behaviors and life skills means that it is a “gold standard” for education - especially if by “education” we mean academics in addition to behaviors, social skills and life skills.
All the best,
Lisa (autism guide)
While I cannot comment as well as the previous two respondents, I can say that I accepted a placement this year for my son with autism with which I was not pleased due to the fact that the other available private options did not offer the appropriate placement for my son either. I chose the lesser of 3 evils and can only hope I made the right decision. It is not a walmart of education options out there for children with disabilities and in our case Autism. I feel parents should have the right to decide which placement they feel is best for their child and the school district and special education providers should respect that.
How can there be a gold standard when our children are on a spectrum? The challenges my child faces are probably different from yours. I get what you are saying though.
I think part of the problem is that schools have been ordered to supply an education to everyone yet have not received the funding that would enable them to achieve it. Also exisitng funding varies widely from state to state and district to district which tends to muddy the waters even more.
Last but not least is the IEP process is a mess! How can a parent who has just learned of a dx’d come up with an IEP plan that will help thier child, all the while hoping that the district really means to help and is not just throwing a lot of paperwork around to cover thier rears (and we know this happens)?
I seriously don’t blame parents for not wanting to go through this extremely frustrating IEP process when there may be a school that already has a program that will help the child.
My two pennies worth
So, in short, I don’t think that the fact that ABA has worked well as a therapeutic intervention to teach behaviors and life skills means that it is a “gold standard” for education - especially if by “education” we mean academics in addition to behaviors, social skills and life skills.
Lisa, ABA is both a therapeutic AND an educational intervention. It absolutely is used to teach academic skills such as reading, writing, math to autistic children. The small sample of the very extensive literature on the subject of ABA effectiveness substantiates that fact. THe MADSEC report was written in an educational context.
So too was the Best Practices for Designing and Delivering Effective Programs for Individuals with Autistic Spectrum Disorders - Recommendations of the Collaborative Work Group on Autistic Spectrum Disorders sponsored by the California Departments of Education and Developmental Services. (July 1997).
Harold - I’ve never actually been aware of ABA used to teach academic content. Can you tell me more?
My impression has always been that ABA is specifically about learning concrete skills of behavior, speech, life skills… and while I know that it has grown beyond its discrete trial roots, I can’t quite envision its use in promoting creative writing, reading comprehension, etc. Those activities seem awfully open-ended for a behavioral approach…
Thanks,
Lisa
All -
Whether or not it is agreed upon as a “Gold Standard,” or studied in a formalized study side-by-side with other modes of classroom intervention, here is our personal experience.
Over 18 months, my daughter made developmental gains across all domains that represented 3 months to 9 months of development; in a public school program. In order to get these gains, I attended no fewer than 8 IEP meetings where I was verbally bloodied and bruised by a District hell-bent on providing as little as possible in the way of meaningful intervention for my child (and I am assertive, articulate, educated, and fully aware of our rights under each applicable law). Most of our meetings were greuling 6 - 8 hour sessions with upward of 10 representatives from the District in attendance; and me, with my tape recorder. Basically, I was informed that educating my “Severely Autistic” child to a level commensurate with her age-peers would be “like providing her a Cadillac, when all the District is reqired to do is provide her a Kia.” After all, I was told, “she is ’severely autistic,’ she cannot learn.” And when I argued that we would have to set the bar that high to know for sure, I was told, “She only has to make ADEQUATE progress; we decide what is adequate. ANY progress is adequate.”
After a particularly disturbing series of abuses in the classroom and on the bus by my daughter’s teacher, assistant, and bus driver (which culminated in my daughter’s severe deterioration in ability to function), I pulled her out of the Public domain.
We started a program of Applied Behavioral Analysis using Verbal Behavior and Positive Behavioral Supports with a team of three therapists working with her 1:1 25 - 30 hours a week. THREE MONTHS later, we returned to the District with notebooks full of the gains my daughter had made, across all domains. The District had tested my daughter right before I had pulled her out. They chose to re-test her. To their shock and dismay, my daughter had made developmental gains that represented between 6 and 18 months in that 3 month period of time. I, again, requested services that would mirror this program and was denied. I volunteered to perform the services in the classroom and was told, “Absolutely not.” I offered to train any assistant they could offer and was refused. I offered to supply a fully trained and certified assistant to work with the school team and my daughter in the classroom at my own expense and was refused. I asked them to hire a private team that could be effective for my daughter and was refused. I was informed that I “have no right to request any particular approach to teaching” my daughter and that their “ecclectic approach” was how they would continue with her, despite its failure have proven effective for the previous year and a half.
The final IEP lasted over 8 hours and cost me attorney fees, to boot. I was 9 months pregnant and done with the whole system of abuses; I removed my child from Public school.
Since my daughter did not spend her entire Kindergarten year falling further behind in that classroom, she was, subsequently denied any opportunity for McKay scholarship at a school where these proven methods (for her) are still being utilized, three years later. Happily, ABA/VB w/ PBS has yielded her a full and ever-more-appropriate life in EVERY DOMAIN of living. Her therapists are simply amazing and incredible - I gave them a child biomedically able to learn and they taught her every skill (teeny, tiny, excruciatingly so, step by teeny, tiny step). She is now potty-trained, able to eat a normal meal, able to properly play with toys, able to carry on an age-appropriate (more or less) conversation with anyone, able to learn from her environment and make friends, capable of taking classroom tests, studying and completing individual work, she writes stories about both real and imaginary things, completely comprehends what she reads (at age-level, obviously), is able to go to a store to select and pay for an item, able to bathe herself, able to cross a street, able to speak pragmatically, able to read at an age-appropriate level, able to perform math at the correct level, able to give and get hugs, and SO much more!!!
ABA/VB w/ PBS is teaching my daughter THE one skill that will lead to life-long success; it is teaching her how to thrive in and learn from the world around her. Once mastered, she will be able to generalize this skill to any and all situations where it is needed — just like each and every other skill this program has so painstakingly taught her; interestingly, each new skill is coming a little bit faster and is being retained a lot better!!!
Do not kid yourself, although ABA does start out much like one would train a puppy (from a parent’s-eye view), if done correctly it quickly blossoms into a full-spectrum program encompassing all of a person’s needs in every domain of their life. I have hundreds of pages detailing each and every small gain, in each and every domain. My daughter’s program is her Physical Therapy, Occupational Therapy, Speech Language Therapy, Behavioral Therapy, Academic Program (pre-teaching, then re-inforcing the curriculum taught in her typical Montessori classroom), and more. Thanks to her friends (we call them her ABA/VB therapists), she regained the four years she had lost to ineffective programs AND then progressed on-schedule through Kindergarten and 1st grade classrooms. Her standardized tests for Kindergarten and first grade were administered like every other student’s; she scored over 95% on the former and over 85% on the latter. And the Public School District told me she was unable to learn?!
Since then, I have provided members of my previous IEP Teams with status’ on my daughter’s progress. I have even offered grants for Public School teachers to attend training in this very important program. Never have they responded.
It is time for somebody to do what is right. If nobody wants to point a finger at the origins of Autism the majority of these kids share and demand restitution, then the Government/Public Schools MUST step-up and do the right thing. Most parents do not have my intestinal fortitude (read — persistent, dogmatic appetite to pursue and achieve the results I believe can be achieved, despite all odds).
Why wouldn’t they want to do this, anyway, it would make the classrooms (even the so-called “typical” ones) far more managable for the teachers and the student-body, as a whole, a far easier crowd to deal with on a minute-to-minute, hour-by-hour, day-by-day basis; both at school and out in the world - this methodology works for EVERYONE!
IDEA states the appropriate education, not best- parents should be able to pay for the best but I have mixed feelings of this court case. many typical kids depend on the public school system as well. autism is also not the only special ed needs, there are many other children who also need the schools help to gain a free and appropriate education. in some other web area’s, I agree with paying half of the private school expense. the school should not have to foot the whole bill, more so when no one knows if the school could have provided or not. we also must keep in mind this ruling was won due to a 4:4 vote- the parent won by default, not by over whelming votes.
there really cant be a “gold standard”. each child is different. although my son is a visual learner, I cant say if he actually sees in pictures as some do. there is options out there to choose from. ABA for years was considered controversial and needed a total overhaul of their methods and therapists. ABA is also not considered an educational approach, neither is RDI for that matter. and with any therapist, they need to click with the child, and many do not fully follow protocol. they always seem to add a little something ‘they’ think will work. I myself after research did not choose ABA for my child and wouldn’t. if the school had wanted to do ABA with my child, I would had fought that. my child’s “gold standard” that worked for him was private speech and O.T, and RDI which I do, at school speech and O.T and social skills class. even if the schools had such a gold standard, their pay is low and therapists in the schools have a high turn over. also, no one should ever rely fully on any school, private or public, to be the sole intervention for a child. there is some parental responsibility.
does my son’s school do everything for my son that they should? probably not but I believe they do to the best of their ability for each autistic student they have. do I or can I do everything for my son that I should? probably not, but I do what I can to the best of my ability and darn if I wasn’t born a millionaire so I could do more.
To sandy -
Sandy I noted with interest your comments, which to me bring up the point of why is ANY of this being paid for through the education system. This is a neurological condition, whose treatment should be classified as a medical expense, whether the intervention is in the classroom or any other setting.
What putting autism education into the education funding bucket does is pit school districts and families against each other when they should be collaborators.
Private insurance and Medicaid should be footing the bill for my son’s aide, (think of it as a home health aide but specialized) ABA, OT, PT, Speech-Language, etc, etc, etc.
This is not phonics or OG reading. This is neuroligically based intervention for a severe medical condition.
to Maria and all
there just has to be a balance. schools are not a medical facility and schools all over the USA at least have been struggling. ABA is suppose to be intensive in order for it to be effective, like 40 hours a week, and is known to be most effective with kids in Pre K, not elementary. you also don’t see ABA once founded, going to the older population of those with spectrum disorder’s. there still is controversy all the time of those who claim to be fully trained ABA therapists, and they are not. many do not even have an BCBA but still bill as if they do. it is an unregulated and often unchecked profession.
insurance companies also need to bare some of this responsibility. in some states, schools are billing Medicaid for services, and all states should be doing this.
a court case such as this will only divide our autism community with those who are not part of it. no one expects to be a parent of a special d child, however there should be a balance of services for all, and really, all kids are different as to what those options should be but it shouldn’t all be laid unto one place JMO
I agree with JMO about the fact that schools should NOT be expected to provide everything- not PT not OT, as you say these are medical interventions and should be provided by insurance. As we know, children with autism learn differently and people, only people who have had courses in autism should be teaching children with autism.
On the subject of ABA: I have completed all but the last course in a Certificate in Autism Spectrum Disorders. It was taught by an expert in the field, and had a heavy emphasis on evidence based practice and research. One of my first questions was: Is ABA really the gold standard? It is for SOME children. As we know, every child is different and usually a combination of approaches is best…tweaking and learning as one goes along. So the real answer is NO; ABA is NOT “the gold standard”, however it is one of the few evidence- based therapies with research to back it up, which is why it is so heavily emphasised; not because it is necessarily the best approach for every child with autism.
Just a little picky note: our instructor talked about respectful terminology; that referring to a child as “having autism” is much more respectful language than referring to them as “autistic”. I will never forget that– because we also know, these beautiful kids are so much more than just “autistic”.
Just my two cents…..
Diana
It looks like a lot of ABA history has been lost now that the public seems to regard behavior analysis as only being a treatment for autism. The question from Lisa is an an excellent one, and good a case in point: “I’ve never actually been aware of ABA used to teach academic content. Can you tell me more?”
Behavioral methods such as Skinner’s “Programmed Instruction” and Fred Keller’s “Personalized System of Instruction” were developed in the 1950s and 1960s before autism became a success story for behavior analysts. Even earlier, Fred Keller employed behavioral principles in World War II to teach Morse code with his “code-voice system.” Direct instruction and other behavioral teaching methods have grown out of these things. Many of the effective methods we see in well-done ABA programs actually came from these educationally based efforts. Discrete trials were in Skinner’s programmed instruction before there was “discrete-trial therapy.” Graduated mastery, careful task analysis of the concepts being taught, errorless-sequencing, programming for generalization and maintenance of learning, and many other things were borrowed from these early educational efforts. There is a large, semi-forgotten literature on the use of behavioral methods in all kinds of instruction, in all areas including reading, writing, mathematics, literature, psychology, and just about everything else. The settings ranged from regular kindergarten classroom, to special education, to high schools, colleges, industry, and the military.
There is nothing wrong with Lisa for not knowing this information. Colleges don’t teach this history much, if at all, even in history of psychology courses. Some behavior analysis programs barely touch on it. You will never hear about it in a non-behavioral program, at least very accurately. We don’t even see that much of it anymore at ABA conventions. For the non-academic public, the recent focus on autism has compressed our view of behavior analysis and its history to a narrow corridor of knowledge leading from modern contingency management systems like DTT straight back to Lovaas in the 1960s. Unfortunately, much of what is said about the history is poorly reconstructed, doesn’t include much about the conceptual and experimental context in which these things were developed This leads to troublesome misconceptions about what ABA is today and where it really came from. Sadly, much of the richness and potential of behavior analysis is not realized–not just by people who don’t know about it, but even by the growing number of behavior analysts who think of themselves only as “ABA therapists,” and thus don’t avail themselves of all behavior analysis has to offer.
the casse had nothing to do with a “gold standard” or not. schools don’t have any obligation to provide a gold standard and parents have no legal basis to demand it. instead, all districts have to do is provide a floor level of acceptable programming. the case merely allows parents to place their kids in a decent program (gold standard or not) and obtain reimbursement IF THEY CAN PROVE that the district’s offered program was below minimum appropriate standards. Districts will not be financially harmed by the ruling, so long as they offer reasonably appropriate programming.