Being the parent or guardian of a child who has been diagnosed as autistic can present unique challenges, particularly when it comes to their education. Making sure that your child receives the best education possible, one that will help them enjoy a future where they can grow and develop as they mature into adults, is probably one of your biggest concerns. Fortunately, California schools are required by both federal and state law to educate autistic students in a way that is adapted to meet the particular needs of each individual student. When schools fail to do that, the Lento Law Firm Student Defense Team can advise you on what your options are and, where necessary, can step in to help defend your child's legal right to the type of education they deserve. Contact us today at 888.535.3686 or use our contact form to schedule a consultation with one of our experienced student defense attorneys to learn more about how we can help.
The Rights of Autistic Students in California
California has implemented a series of laws as part of its Education Code that follows and expands on the federal requirements for educating students diagnosed with one sort of “disability” or another. The laws and regulations were passed specifically to ensure that exceptional needs students receive the benefits required by the federal Individuals with Disabilities Education Act. California refers to students who benefit from its Special Education laws as “individuals with exceptional needs” and includes autism as one of the types of needs that the state's Special Education Programs address. According to California law, “all individuals with exceptional needs have a right to participate in free appropriate public education and special education instruction.”
Students, including autistic students, who are determined to have “exceptional needs” receive a range of benefits designed to help them receive a “free appropriate public education” as required by federal law. Each student is entitled to certain benefits that will differ depending on that child's particular needs. They include:
- An Individualized Education Program (IEP) that is created for that student with that child's specific exceptional needs in mind
- Accommodations to the student's learning environment and requirements that will help the student progress according to their IEP, and that, where possible, will allow them to experience school in the same way that students without exceptional needs do
- Transitioning services to help the student move from the school environment to the “real world” – whether to college or to a job – when they complete their education
What's important to understand about California's Special Education program is the vital role that parents are supposed to play in the process. If you're the parent of an autistic student in California, you have a voice in their evaluation to determine their eligibility for Special Education benefits; you are a member of the team that creates their IEP, and you have a right to be involved in decisions relating to their progress through school. And in cases where your child's school is not living up to what California law expects of them when it comes to educating your autistic child, you have a right to take steps – including legal steps – to change that. The Lento Law Firm Student Defense Team can help you understand your rights, the obligations your child's school has towards your child, and how to make sure that your child receives the education they're entitled to under California law.
Determining Whether a Child is Eligible for Benefits
As you are probably aware, you can't simply tell your child's school that they're entitled to Special Education benefits. California requires each student who may have exceptional needs to be assessed to determine whether the child has the type of need that California's Special Education law requires the school to address. Before that can happen, however, your child's school may try to address your child's needs through its “regular education program,” which can be frustrating in a situation where you strongly believe your child will most benefit from special education services.
Once the school agrees to assess your child, you should be offered an opportunity to meet with the school about the “identification, assessment, and educational placement” of your child. Any assessment must be done by trained professionals and must be “tailored to assess specific areas of educational need,” and not simply general IQ tests. The school is not allowed to use a “single measure or assessment” as the basis for deciding whether a child has exceptional needs that entitle them to California's Special Education benefits.
In fact, the assessment must be wide-ranging, covering “all areas related to the suspected disability.” Depending on the child, the assessment can cover “health and development, vision, including low vision, hearing, motor abilities, language function, general intelligence, academic performance, communicative status, self-help, orientation and mobility skills, career and vocational abilities and interests, and social and emotional status.”
If your child is to be assessed, you'll be notified by the school in writing at least 15 days before the assessment is to take place. That notice should include the “proposed assessment plan” so you have some idea of the types of assessments that the school plans to use. This gives you the chance to decide whether or not the school is going to be assessing your child appropriately so that if you believe different types of tests should be used, you can contact the school and discuss the situation with them.
Parents will receive a copy of the assessment results. The assessment report will cover:
- Whether the child may benefit from California's special education benefits and resources, and the reasons for making that determination
- The child's behavior relevant to the decision, as noted during the assessment
- How that behavior impacts the child's “academic and social functioning”
- Any health, development, and medical findings that are relevant to the assessment
- The child's need for “specialized services, materials, and equipment”
If you disagree with the assessment prepared by your child's school, California law gives you the right to ask the school to obtain an “independent educational assessment” at the school's expense. While the school has the right to ask for a “due process hearing” as to the appropriateness of the assessment you're objecting to, it can also consent to your request. If it does, your child will be re-assessed, and that assessment will be used together with the initial assessment when deciding whether your child is eligible for Special Education benefits. If there is a hearing and the determination is that the school's assessment is appropriate, you still can have your child re-assessed, but at your expense.
Once the initial assessment process is complete, reassessments of Special Education students are required at least once every three years, but not more often than once a year.
For purposes of autism education training, California has a specific set of behaviors that are used to define whether a child is a “pupil with autism.” Factors used to make that determination include:
- A demonstrated “inability to use oral language for appropriate communication”
- “Extreme withdrawal” or “relating to people inappropriately” from “infancy through early childhood”
- Obsessive behavior, particularly to “maintain sameness”
- “Extreme preoccupation” with objects or inappropriately using objects
- “Extreme resistance to controls”
- “Peculiar” physical movements
- Acting in a “self-stimulating, ritualistic” way
There may, of course, be other factors that can also lead to a determination that a child is autistic.
The assessment report does not determine whether a child is entitled to Special Education services; while it may recommend that the child receive them, that decision is made by the child's parents and other members of an Independent Education Program (IEP) team at a meeting that is held to determine “whether the pupil is an individual with exceptional needs” under California law.
The Individualized Education Program
Every exceptional needs child approved for Special Education benefits, including those with autism, receives an Individualized Education Program tailored to that child. The IEP acts as a detailed roadmap for how the child will be educated by the school and follows specific requirements set by federal and California law. The IEP is developed by an IEP Team that includes the following:
- the child's parents
- at least one of the child's “regular education” teachers
- at least one of the child's “special education” teachers
- a school or school district administrator who knows about the general and special education opportunities available to the student
- someone who is able to review the child's assessment and determine the “instructional implications” of the results
- at times, someone else who has “knowledge or special expertise” about the child, for example, the child's physician or psychologist
- In cases where it may be “appropriate,” such as with older children, the child may also be a member of the IEP Team
As a parent, you have the right to attend all meetings of your child's IEP Team. The school is required to notify you in advance of each meeting and make accommodations for you to participate remotely if you can't be there in person. You should also receive a copy of your child's IEP so that you're aware of what's in it.
The IEP Team must consider the following when creating a student's IEP:
- The student's strengths
- The parents' concerns for “enhancing the education” of the child
- The results of the child's assessment
- The child's “academic, developmental, and functional needs”
The IEP Team should review the IEP developed for the student at least once a year, though it can be more often, to evaluate whether the student is reaching the goals set by the IEP and whether the IEP should be revised. In addition, the IEP Team is required to meet when any of the following happens:
- After the child's first formal assessment
- Whenever the child “demonstrates a lack of anticipated progress”
- When requested by a parent or teacher “to develop, review, or revise” the IEP
Each child's IEP must cover the following:
- The child's present “levels of academic achievement and functional performance,” including, for a child with autism, how their autism “affects their involvement and progress in the general education curriculum.”
- Annual goals set for the child, both academic and functional ones. These should meet the student's particular needs resulting from their autism so that they can “be involved in and make progress in the general education curriculum.”
- How the child's progress towards meeting those goals will be evaluated and when periodic progress reports will be delivered
- What “special education” and “supplementary aids” and services will be provided to the student, in particular to allow the student to be part of the general school setting both in and out of class
- If the student won't participate in certain general school classes or activities, a statement as to what those exceptions will be
- What “individual appropriate accommodations” will be made to tests and similar types of assessments to evaluate the student's academic and functional progress
- When the program described in the student's IEP will begin
The IEP covers almost every aspect of the student's education experience at the school. It needs to be in place at the beginning of each school year, and each of the child's teachers must have a copy and understand their specific role in implementing the parts of the IEP to make sure that they are followed.
There are situations where parents disagree with parts of the IEP that the IEP Team develops. In other situations, the school may fail to effectively implement the IEP's requirements for the student, or follow other requirements set by California law for developing, using, or revising the IEP. In any situation where you have concerns about your child's IEP or how it's being used by your child's school, contact the Lento Law Firm Student Defense Team to learn more about what your rights are as a parent, and how we can help you enforce those rights for the benefit of your child.
Autism and the Least Restrictive Environment
Both federal and California law require schools to take steps to ensure that “to the maximum extent appropriate,” students with exceptional needs such as autism “are educated with students who are nondisabled.” California is clear that things like “special classes, separate schooling, or other removal” of exceptional needs students, including autistic students, from the “regular educational environment” should only happen when the “nature or severity of the disability” are such that the student cannot be educated in the regular environment even with the use of “supplementary aids and services.” This is often referred to as the “least restrictive environment” or LRE requirement, the goal of which is to “mainstream” exceptional needs students as much as possible.
If you find that your child is being taught in special classrooms or one-on-one sessions instead of in the classroom with other students, or is not allowed to mix with the general student population at lunch, recess, or other times, it's important to consider whether this is part of their IEP and, just as importantly, whether it's in their best interest. If you believe that the school is failing to provide the LRE experience that your child is entitled to, is ignoring any part of their IEP, or is otherwise hindering their progress, contact the Lento Law Firm Student Defense Team to learn about how we can help you effectively advocate for your child's rights with their school. Our experienced student defense attorneys understand both the federal and California requirements that relate to your student's LRE rights and are ready to go to bat for you and your child.
Disciplining Autistic Students
All students are disciplined in school from time to time, and autistic students are no exception. What can be a challenge for educators is to decide how to address behavior from an autistic student that may be a reflection of their autism and not necessarily be a behavior that they should be punished for. California has specific requirements in place for what it calls “behavioral interventions” for exceptional needs students. Among these requirements are the following:
- “Emergency interventions” are strictly limited and can only be used where “unpredictable, spontaneous behavior” creates a “clear and present danger of serious physical harm” to the student or to others
- Schools should not use emergency interventions in place of a “systematic behavioral intervention plan” that should be part of a student's IEP and designed to “change, replace, modify, or eliminate” a specific behavior
- Any emergency intervention should only last for as long as necessary to “contain the behavior”
- Emergency interventions may not normally include “locked seclusion,” immobilization of “all four extremities,” or unreasonable and unnecessary force
Parents are required to be notified if their child is involved in an emergency intervention situation. In cases where a student is involved in an emergency intervention and their IEP does not include a behavioral intervention plan, the school must schedule an IEP Team meeting within two days to review the situation and determine whether the student's IEP should be revised.
Of course, not every disciplinary situation involving an autistic or other exceptional needs student will result in an emergency intervention. All schools have their own disciplinary policies and procedures that apply to the general student population as well as exceptional needs students. These policies and procedures are not always enforced fairly or uniformly and, in some cases, can be unfairly applied to students with exceptional needs.
Busy school administrators don't always have the time to investigate misconduct claims fully or fairly. It's a sad fact that autistic students may be the target of bullying or other forms of harassment by other students, which can prompt a reaction from the target that can result in the child being disciplined in a situation where they may have been attempting to defend themselves.
The Lento Law Firm Student Defense Team regularly represents students across the country who are facing serious school disciplinary situations. We understand how these procedures work, and we know that school officials don't always respect the rights of students accused of misconduct. In the case of an autistic or exceptional needs student facing discipline, there may be other issues that come into play as well. We often find that investigating the incident further reveals that there is “another side” to the situation that the school failed to uncover. Bringing the rest of the story to the attention of school officials can often resolve the situation quickly and favorably for our student clients.
If your child with exceptional needs faces serious school discipline in California, contact the Lento Law Firm Student Defense Team for help. We've helped students across the country, including California, with serious school misconduct proceedings, and our experienced attorneys understand the rules, regulations, and rights those students have. Where we are working on behalf of an exceptional needs autistic student, we will investigate whether the student has been fairly and properly treated by the school in connection with the incident or has been singled out as a result of their autism.
The Lento Law Firm Student Defense Team Can Protect Your Autistic Student's Rights in California
The Lento Law Firm Student Defense Team knows how challenging and rewarding it can be to be the parent of an autistic child. Our experienced team of attorneys is ready to help you defend your child's rights – to an education adapted to their needs, to fair treatment by their school, and to have the chance to grow and develop as a student and as a person.
We can advise and represent you no matter where you and your child are in the special education process in California, including:
- Making sure your child is properly assessed to determine whether their autism entitles them to the many benefits of California's Special Education program
- Where necessary, helping you get a second assessment at public expense
- If the school elects to ask for a hearing to review their initial assessment, we will represent you at that hearing
- When you disagree with any part of your child's IEP, we can help you bring those concerns to the school's attention and, where necessary, take them further
- In situations where the school fails to properly implement your child's IEP, we'll help you take the necessary steps to correct that situation, including making sure the school provides your child with reasonable accommodations required by law
- If your child is facing serious or chronic disciplinary proceedings, we'll defend their rights, particularly in situations where the result could be that they'll be suspended or transferred to a special school setting
We understand how challenging it is to be a parent, no matter what your child's needs are, and we are here to help you help your child receive the education and the opportunities that they deserve. The Lento Law Firm Student Defense Team has helped students across the country, including in California, protect their rights to a proper education. Whether your child has been assessed as an exceptional needs child due to autism or not, we can help.
To learn more about how the Lento Law Firm Student Defense Team can help you protect your child's rights to California's Special Education benefits, call us today at 888.535.3686 or use our contact form to set up a consultation with one of our experienced attorneys. You know how important your child's future is to both of you; we are here to help protect it.
