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By: Giulia Frasca, Esq.
April 2, 2015 is the eighth annual World Autism Awareness Day. Organizations around the world are celebrating with fundraising events and events to raise awareness. Within the last decade, research has led to the discovery of new information regarding autism. See some of these discoveries below:
- Autism’s prevalence has soared within the last ten years.Ten years ago, autism…
By: Giulia Frasca, Esq.
April 2, 2015 is the eighth annual World Autism Awareness Day. Organizations around the world are celebrating with fundraising events and events to raise awareness. Within the last decade, research has led to the discovery of new information regarding autism. See some of these discoveries below:
- Autism’s prevalence has soared within the last ten years. Ten years ago, autism was diagnosed in approximately 1 in 166 children. Today, it has increased more than 100% as it is prevalent in 1 out of 68 children.
- Direct screening of children indicates that autism may be more widespread than current statistics suggest.
Autism Speaks, an organization founded ten years ago to raise awareness and funding for research into Autism studies conducted a study in South Korea where it screened children in South Korean schools. The study concluded that 1 in 38 children were affected by Autism. The majority of the children were previously undiagnosed. A similar study is currently being worked on in conjunction with the CDC in the United States.
- Early intervention makes a difference. It is now possible to have an Autism diagnosis by age 2. Early screening is important so that services can be administered. Early intervention affects underlying brain development and activity and may also reduce the need for interventions later in life.
- Behavioral therapy for autism may be essential. Behavioral issues may be present in a child diagnosed with Autism. Behavioral therapy can have significant benefits in the development of a student with Autism. Health coverage for behavioral treatments is now available in 38 states. Many families can now benefit from behavioral treatment for children diagnosed with Autism.
- One out of three persons diagnosed with Autism cannot speak. Assistive technology is necessary for one third of persons diagnosed with Autism to be able to communicate. These devices can be very expensive. Efforts are underway to help obtain insurance coverage for such necessary devices.
- It is possible for a nonverbal child diagnosed with Autism to eventually speak. Appropriate services and therapy can make it possible for a nonverbal child with Autism to speak. It is important to communicate with the school district and providers regarding the child’s needs and to obtain evaluations to determine the needs of the child.
- Many children with Autism suffer from gastrointestinal issues. Gastrointestinal issues and allergies to foods are common in children with Autism. The pain that results can exacerbate behavioral issues. It is important to understand the child’s gastrointestinal issues and make others who work with the child aware so that the issues can properly be managed, for example, following gluten- free or lactose-free diet.
- Children with Autism often have trouble sleeping. Any trouble sleeping or sleep disturbances should be discussed with the child’s doctor so that interventions can be taken. The information should then be relayed to the school if the child is school-aged so that an appropriate program can be provided, such as planning instruction in the morning if the child gets sleepy in the afternoon.
Identifying the best services for someone with special needs can be daunting. We can help you navigate the system, understand your child’s legal rights, and establish the financial foundation that will enable as much independence as possible. Our goal is to empower families with the tools they need to advocate for their loved ones—for a free and appropriate education, public benefits, and social services.
Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.
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The Justice Department conducted a study that shows that although children with special needs who receive special education services comprise twelve percent (12%) of the nation’s students, they constitute nineteen percent (19%) of students disciplined with either a suspension or expulsion. These percentages indicate that school districts often fail to understand the rights of students with disabilities and proactively provide positive behavioral supports.
The Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA) protect the rights of students with disabilities in that they cannot legally be subjected to long suspensions or expulsions for behaviors that are manifestations of their disabilities. Under New York State law, which applies to all students, whether classified or not, a “short-term suspension” is defined as five days or less. The Principal of the school can issue a short-term suspension. The parents have a right to an informal conference. The parent must receive twenty-four hour notice of the suspension and tutoring must begin, technically, immediately; however, this rarely happens.
Under New York State law, a “long-term suspension” is defined as a suspension that lasts more than five days. Long-term suspensions can only be issued by the Superintendent of the district and only after the Superintendent conducts a hearing to determine innocence or guilt. Witnesses may be called and cross-examined at the “Superintendent’s Hearing.”
Under the federal special education law (IDEA), a suspension in excess of ten school days constitutes a “change in placement,” and cannot be issued without going through the CSE. It is important to note that “ten days” can either mean ten consecutive days, or a series of short-term suspensions that add up to ten days if they are a part of a pattern of suspensions.
If a school district is seeking to suspend a student with a disability for longer than 10 days, it must conduct a manifestation determination. The “Superintendent’s Hearing”, discussed above, must occur first. If the student is found “guilty” at the Superintendent’s Hearing, the manifestation determination must be scheduled. CSE members, including the parent, attend the manifestation determination and make the determination. The CSE team will review information such as the student’s IEP, teacher observations, information from the parent and, sometimes, testimony from the student. The objective of the manifestation determination is to determine whether the conduct for which the district seeks to discipline the student was caused by, or had a direct and substantial relationship with the student’s disability, and/or was the conduct a direct result of the district’s failure to implement the student’s IEP.
If the conduct at issue is determined to be a manifestation of the student’s disability, the student must be returned to the placement from which he or she was removed unless the parent and the district agree upon a new placement.
If the CSE team has not yet conducted a Functional Behavioral Assessment (FBA), one must be conducted and a Behavioral Intervention Plan (BIP) must be developed. If the child already has a BIP, the CSE must review and modify the BIP in consideration of the conduct that led to the suspension and with the goal of preventing similar behavior in the future. If the behavior was a direct result of the district’s failure to implement the IEP, it is the district’s responsibility to immediately remedy those deficiencies. See Part 201 of the Regulations of the Commissioner of Education. If the school district does not follow the steps described above with regard to suspending a student for more than ten days, it is in violation of law.
Studies show that “reprimands, detentions and exclusion” are ineffective means of modifying student behavior and that forcing a student to be absent from school for long periods of time actually increases dropout rates, especially for students with special needs. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014. This leads to an increased likelihood of unemployment and economic dependence for students with special needs. Rather than remediating the behaviors, suspending a student with special needs can have an unintended, detrimental effect on the student and ultimately society as a whole.
Students with special needs often exhibit associated behavioral issues and challenges and may require concrete examples of prohibited behaviors and conduct. They may have difficulty understanding the school’s disciplinary code as written. A student’s specific disability may also play a role in the behaviors exhibits. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014. For example, a child with Tourette’s syndrome may shout something inappropriate, or repeatedly engage in conduct that is disruptive to others such as tapping, or fidgeting. A student with ADHD may have an outburst due to his or her disability. A student with autism may engage in flapping, banging or other stimulatory behavior. Before the student is disciplined, the relationship of the student’s disability with the offending behavior should be considered.
The movement from self-contained classrooms to the mainstream learning environment may influence certain conduct in students with special needs because there are many more factors that could stimulate, and/or cause anxiety or stress in a student with special needs. They face additional social, emotional, academic and environmental stressors and challenges. These challenges increase as students with special needs transition from elementary school to middle school and from middle school to high school. The predictability and flexibility of their daily schedules are no longer present. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014.
While there may be benefits to receiving instruction in the least restrictive environment as required by the IDEA, the mainstream setting may not be appropriate for all children with special needs. It is necessary for the IEP team to consider each student’s special needs. For example, a student diagnosed with a processing disorder may not be able to maintain his or her focus any may miss crucial information in an ELA class with 25 students. The same may be true for students with hearing impairment. A student with attention issues may have trouble attending to task for extended periods of time. The implementation of common core standards and an increased emphasis on test results may often render it difficult for teacher to be able to individualize programs for students with special needs in the mainstream setting. Funding cuts also make it difficult for school district to provide students with special needs appropriate individualized instruction. See Discipline and the Special Ed Student, Maureen E. Hook, Ph.D. date February 14, 2014.
For these reasons, violations of the IDEA have been increasing. Littman Krooks LLP’s special education department works diligently with families of children with special needs to help them obtain a free appropriate public education for their children. To learn more about the Special Education Process at Littman Krooks, click here.
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