Preventing Bullying of Students with ASD

Did you know that October is National Bullying Prevention Month? In an effort to raise awareness around issues of bullying for students with autism, we’re honored to feature this article on preventing bullying of students with ASD by Lori Ernsperger, PhD, BCBA-D, Executive Director of Behavioral Training Resource Center, on some tips and information for parents on protecting their children from disability-based harassment in school. To learn more about ASAT, please visit their website at www.asatonline.org. You can also sign up for ASAT’s free newsletter, Science in Autism Treatment, and like them on Facebook!


We have a nine-year old daughter with ASD who started 3rd grade in a new school. She is coming home every day very upset due to other students calling her names and isolating her from social activities. We wanted her to attend the neighborhood school but how can we protect her from bullying?

Answered by Lori Ernsperger, PhD, BCBA-D

Unfortunately, bullying and disability-based harassment is a common issue for individuals with ASD. As parents, you have a right to insure that the school provides a multitiered framework of protections for your daughter to receive a free appropriate public education (FAPE) in the least restrictive environment and free from disability-based harassment. Start with educating yourself on the current legal requirements and best practices for preventing bullying in schools.

Preventing Bullying of Students with ASD

Recognize
Recognizing the startling prevalence rates of bullying for students with ASD is the first step in developing a comprehensive bullying and disability-based harassment program for your daughter. According to the Interactive Autism Network (IAN, 2012), 63% of students with ASD were bullied in schools. An additional report from the Massachusetts Advocates for Children (Ability Path, 2011) surveyed 400 parents of children with ASD and found that nearly 88% reported their child had been bullied in school. According to Dr. Kowalski, a professor at Clemson University, “because of difficulty with social interactions and the inability to read social cues, children with ASD have higher rates of peer rejection and higher frequencies of verbal and physical attacks” (Ability Path, 2011).

In addition to recognizing the prevalence of bullying of students with ASD in schools, parents must also recognize the complexities and various forms of bullying. Bullying of students with ASD not only includes direct contact or physical assault but as with your daughter’s experience, it can take milder, more indirect forms such as repeated mild teasing, subtle insults, social exclusion, and the spreading of rumors about other students. All adults must recognize that laughter at another person’s expense is a form of bullying and should be immediately addressed.

Finally, recognizing the legal safeguards that protect your daughter is critical in preventing bullying. Bullying and/or disability-based harassment may result in the violation of federal laws including:

  1. Section 504 of the Rehabilitation Act of 1973 (PL 93-112)
  2. Title II of the Americans with Disabilities Act of 2008 (PL 110-325)
  3. The Individuals with Disabilities Education Improvement Act (IDEA) of 2004 (PL 108-446)

The Office of Civil Rights (OCR), along with the Office of Special Education and Rehabilitative Services (OSERS), have written guidance letters to all schools to clarify that educational institutions are held legally accountable to provide an educational environment that ensures equal educational opportunities for all students, free of a hostile environment. Any parent can access and print these Dear Colleague Letters and distribute them to school personnel working with their child.

  • US Department of Education/Office of Civil Rights (October 2014)
  • US Department of Education/Office of Special Education and Rehabilitative Services (August 2013)
  • US Department of Education/Office of Civil Rights (October 2010)
  • US Department of Education (July 2000)

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Is Inclusive Education Right for Children with Disabilities?

This week, we’re honored to feature an article by Edward Fenske, MAT, EdS, the former executive director of the Princeton Child Development Institute, who shares his critique on the U.S. Departments of Health and Human Services and Education’s joint statement on inclusive education for all children with disabilities. Ed’s extensive experience in delivering intervention to children with autism, support services to their families, and training and supervision to professional staff spans 39 years. His published works address home programming, language development, and early intervention.

Is Inclusive Education Right for My Child with Disabilities?
by Edward Fenske, MAT, EdS
Princeton Child Development Institute

On September 14, 2015 the U.S. Department of Health and Human Services and the U.S. Department of Education issued a joint policy statement recommending inclusive education for all children with disabilities begin during early childhood and continue into schools, places of employment, and the broader community. The policy includes numerous assertions about the educational benefits and legal foundation of inclusion and a lengthy list of supporting evidence. This paper examines some of these assertions, the supporting evidence, and comments on the departments’ recommendation.

Is Inclusive Education Right for Children with Disabilities

Assertion: Children with disabilities, including those with the most significant disabilities and the highest needs, can make significant developmental and learning progress in inclusive settings.

Supporting Evidence: Green, Terry, & Gallagher (2014). This study compared the acquisition of literacy skills by 77 pre-school students with disabilities in inclusive classrooms with 77 non-disabled classmates. Skill acquisition was assessed using pre/post intervention scores on the Peabody Picture Vocabulary Test, Third Edition (Dunn & Dunn, 1997) and the Phonological Awareness Literacy Screening Prekindergarten (Invernizzi, Sullivan, Meier, & Swank, 2004). The results found that children with disabilities made significant gains that mirrored the progress of their typical classmates, although the achievement gap between the two groups remained. Participants had a variety of diagnoses (e.g., developmental delays, autism, pervasive developmental disorder-not otherwise specified, speech and language impairments, cognitive impairments, and Down syndrome). There were several requirements for participation in this study that would appear to severely limit conclusions. Participants with disabilities were functioning at social, cognitive, behavioral and linguistic levels to the extent that their Individual Education Program (IEP) teams recommended participation in language and literacy instruction in the general education classroom with typical peers-an indication that these skills were considered prerequisite to meaningful inclusion.

A further restriction for participation was that only data from children who were able to complete the tasks according to standardized administrative format were included in the study. It is therefore unclear whether all students with disabilities in these inclusive preschool classes made significant developmental and learning progress. The authors suggest that had the lower achieving students received explicit, small group or individual instruction, the achievement gap between typically developing students and children with disabilities may have been narrowed. We can therefore conclude that regular instruction provided in the inclusive preschool classes in this study was not sufficient for all students with disabilities. Furthermore, because the results were not separated by disability, it is not possible to determine whether there was a significant difference in learning across disabilities.

Assertion: Some studies have shown that children with disabilities who were in inclusive settings experienced greater cognitive and communication development than children with disabilities who were in separate settings, with this being particularly apparent among children with more significant disabilities.

Supporting Evidence: Rafferty, Piscitelli, & Boettcher (2003). This study described the progress in acquiring language skills and social competency of 96 preschoolers with disabilities attending a community-based program. Sixty-eight participants received instruction in inclusive classes and 28 attended segregated special education classes. Progress was assessed using pretest and posttest scores from the Preschool Language Scale-3 (Zimmerman, Steiner, & Pond, 1992) and the Social Skills Rating System (SSRS)–Teacher Version (Gresham & Elliott, 1990). Level of disability (i.e., “severely disabled” or “not severe”) was determined by scores on the Wechsler Preschool and Primary Scale of Intelligence (WPPSI-R), but the authors did not provide any information about the participants’ specific clinical diagnoses. Posttest scores were comparable for “not severe” students in both class types. Children with “severe” disabilities in inclusive classes had higher posttest scores in language development and social skills than their peers in segregated classes, but had higher rates of problem behavior. The extent to which problem behavior interfered with learning for both typical children and those with disabilities was not addressed. Problem behavior, such as tantrums, aggression, stereotypy, self-injury, property destruction and defiance; is displayed by some children with disabilities. These behaviors have very different implications for preschool-aged children than for older children. In this writer’s experience, severe problem behavior is extremely resistant to change when not successfully treated during preschool years and may ultimately result in more restrictive academic, vocational and residential placement during adolescence and adulthood. The significance of any academic gains by children with disabilities in inclusive settings should be carefully weighed against the long-term implications of unchecked maladaptive behavior.

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Autism Awareness Month Interview Series: Getting the Services Your Child with Autism is Legally Entitled To with Gary S. Mayerson, JD

This week, our exclusive interview series with BCBA Sam Blanco features the renowned Gary Mayerson, JD, founder of Mayerson & Associates, the very first civil rights law firm in the nation dedicated to representing individuals with autism and related developmental disorders. In this interview, he reveals valuable advice for parents and caregivers on how to find and obtain the services their children are entitled to.


Getting the Services Your Child with Autism is Legally Entitled To
with Gary S. Mayerson, JD

SAM BLANCO: Can you address any common misconceptions related to IDEA or LRE?

GARY MAYERSON: The federal IDEA statute is governed primarily by what is “appropriate” for the student, as opposed to what is “best” or “optimal.” Unfortunately, the IDEA statute does not define the word “appropriate” and that confusion accounts for many of the conflicts that will arise between parents and school districts, who are obligated to provide a FAPE (a “free and appropriate public education”). On the other hand, LRE, otherwise known as “least restrictive environment,” is one of the few “maximizing” provisions in the IDEA statute. LRE is Congress’ mandate that students with disabilities be educated with their non-disabled peers to the “maximum extent appropriate,” even if doing so requires supplemental aids and services. The LRE mandate requires school districts to consider what is known as “the full continuum” and not rely upon “one size fits all” special education classrooms.

SB: What is the most important piece of advice you can give to parents as they begin the process of finding an appropriate school placement for their child?

GM: The best advice I could give parents who are just getting started is to seek out the best possible baseline of assessments and evaluations to tease out the strengths and challenges, identify and address any interfering behaviors, and hopefully get a good sense as to how their child learns, i.e., what kinds of programs are likely to be effective or not. Without the benefit of solid evaluations, the discussion at the IEP meeting will likely be relegated to “this is what the parents want.” When parents are able to provide quality evaluations, the discussion is elevated to “this is what professionals are recommending.” School districts are far more likely to take action based on the recommendation(s) of experts. Early intervention is always best. Accordingly, once evaluations and assessments are available to guide intervention, services should start ASAP. Parents of children diagnosed on the autism spectrum who are just getting started will find very useful information at www.autismspeaks.org. Autism Speaks offers an online “100 Days Kit” to help parents wade through the initial time frame following a diagnosis.

SB: Many parents struggle with the costs associated with autism. What advice do you have for them to alleviate some of the expenses?

GM: This is a thorny topic because even families with significant financial resources will struggle to pay for the daunting cost of effective programming where autism is the core disability. Today, most states (including New York) have enacted insurance reform, which means that many intervention services will be covered by private insurance, typically limited to an annual cap of approximately $40,000 or so. Parents should also consider obtaining home and community based services by filing for a “Medicaid waiver.” In addition to accessing insurance benefits and applying for a Medicaid waiver, families should register with early intervention (“birth to three”) and later, with their Committee on Preschool Education (3-5) and later, with their Committee on Special Education (5-21) to secure a public program. If, however, the public program is not appropriate or adequate, with timely advance notice, parents can file for a hearing to seek to obtain reimbursement or other funding for services and programming that is appropriate. Even short of a lawsuit, if parents are unhappy with the school district’s evaluation, they can request an “independent (private) evaluation” at the expense of the school district.

SB: Do you have recommendations for how parents keep track of records for legal purposes?

GM: Good record keeping is absolutely essential for parents. A great low tech, low cost method every parent should employ– keeping a $.99 notebook “log” of all your conversations with evaluators, school district personnel and providers. Everything important needs to be confirmed and documented in writing. This, however, does not mean sending a letter by certified mail. Faxes are just fine (but be sure to keep the fax transmittal confirmation), as are emails. Make sure to save every notice, letter and communication. For the IEP meeting, parents should either take good notes or, in situations where distrust has arisen, consider tape recording the meeting. Parents who observe schools that are being recommended by the school district also should record their observations, both good and bad.

SB: What resources do you recommend for parents to educate themselves about their legal rights?

GM: While there often is no substitute for seeking the assistance of an experienced attorney or other advocate, there actually are a number of good resources for parents to turn to in order to become better informed as to their child’s rights and entitlements. Parents, for example, will find useful information at www.wrightslaw.com and at www.mayerslaw.com. Our law firm invites parents to sign up for the firm’s quarterly informational newsletter. In addition, parents should carefully review the “parental rights” booklet that all school districts are required to provide in the context of the IEP process. Parents can also contact their local SEPTA or PTA. Finally, each state’s department of education will post, online, valuable information that parents can access free of charge, 24/7.

SB: Do you discuss estate planning for parents of children with special needs? When do you advise parents to begin making those plans?

GM: Parents of special needs children live with constant worry, knowing that they will not be able to live and protect their child forever. All parents–even those without any financial resources–should have a will that addresses estate planning issues, and the question of who will take over the parental role when the parent is no longer around to do so. Parents with financial resources, or who expect to come into money in the future, need to engage counsel to set up a “special needs trust” for their child—so as to allow the child to receive Medicaid and Social Security benefits without endangering the estate when such benefits are accessed. It is never too early to discuss estate planning issues, and too many parents overlook estate planning issues until it is too late. Parents also should timely commence guardianship proceedings well before the child reaches the age of majority (18 in most jurisdictions). Otherwise, a child who reaches the age of majority without a guardianship order may leave the jurisdiction and put themselves in danger with parents being left with little, if any, legal recourse. This is not to say, however, that obtaining guardianship is a given. Obtaining guardianship requires a showing, deemed acceptable to the court, that the child is incapable of making their own decisions.

SB: Can you describe legal considerations across the lifespan? For instance, what should the preschooler’s parents be considering as opposed to the teenager’s parent?

GM: The perspective and legal considerations when a child is a preschooler are different than when a child reaches his or her teens. While learning can and will continue into adulthood, most scientists and educators are in agreement that the same effort will produce greater learning, with a greater “rate of acquisition,” when the same child is younger. For this reason, judges and hearing officers are most comfortable “investing” significant public resources in the younger child. Because of the value of “early intervention,” parents need to obtain a diagnosis and classification as soon as possible. This means obtaining quality assessments that come with specific recommendations. Parents of children at the preschool age should thus timely receive the services and service levels that are being recommended by professionals. When the child enters his or her teens, that child still may require intensive services. However, as mandated by federal and state law, when a child is about to turn 16 (15 in New York), the IEP is supposed to shift into high gear with “transition” assessments, vocational training, and post-secondary outcomes. At all stages, parents should make sure that educators and service providers are promoting “generalization,” and that increased independence and self –sufficiency is the constant beacon on the horizon.

ABOUT GARY S. MAYERSON, JD

Gary Mayerson is a graduate of the Georgetown University Law Center and the S.I. Newhouse School of Public Communications at Syracuse University. In early 2000, Gary founded Mayerson & Associates as the very first civil rights law firm in the nation dedicated to representing individuals with autism and related developmental disorders.

Gary speaks regularly at national conferences and major universities and has testified before Congress on the subject of the federal Individuals with Disabilities Education Improvement Act (“IDEIA”). At the invitation of the United Nations, Gary spoke on the subject of facilitating inclusive education. Gary is well published in the field and is the author of How To Compromise With Your School District Without Compromising Your Child (DRL Books 2005), the “Legal Considerations” chapter appearing in the Second Edition of Dr. Donna Geffner’s book, Auditory Processing Disorders (2013), and the “Autism in the Courtroom” chapter appearing in the Fourth Edition of Dr. Fred R. Volkmar’s seminal treatise, Autism and Pervasive Developmental Disorders (2014).

Gary has been interviewed by the Today Show (NBC), Dan Rather (HDNet), Katie Couric, CNN, HLN, ABC, NPR, New York Magazine, the Wall Street Journal, Congressional Quarterly Researcher and the New York Times, among other media. In 2014, after being peer-nominated and vetted across 12 factors by an attorney led research team, Gary was named by Super Lawyers Magazine as one of the top attorneys in the New York metropolitan area.

In addition to the U.S. Supreme Court, Gary is admitted to the Second Circuit Court of Appeals, the Third Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the Sixth Circuit Court of Appeals, the Seventh Circuit Court of Appeals, the Tenth Circuit Court of Appeals, and the Eleventh Circuit Court of Appeals.

Gary is responsible for more than sixty reported federal court decisions, including Deal v. Hamilton County, the very first autism case to ever reach the U.S. Supreme Court. Gary’s work also was instrumental in T.K. v. NYCDOE (bullying recognized as a “FAPE” deprivation), R.E. v. NYCDOE and C.F. v. NYCDOE (cases rejecting school district’s attempts to rely upon “impermissible retrospective evidence” at trial), T.M. v. Cornwall (least restrictive environment mandate as applied to ESY), L.B. v. Nebo School District (pertaining to “supported inclusion” and Congress’ “least restrictive environment” mandate), V.S. v. NYCDOE (parents have a procedural right to evaluate the school assignment) and Starego v. NJSIAA, a federal court settlement affording Anthony Starego, a 19-year-old high school placekicker with autism, an unprecedented fifth season of interscholastic competition (incredibly, that additional season had a storybook ending, with Anthony and his team going on to win the 2013 State Championship 26-15 after Anthony contributed points from two successful field goals!).

Gary has served on the national board of Autism Speaks since its inception in 2005 and founded its Federal Legal Appeals Project, a pro bono initiative at the federal level. In addition, Gary serves on the Boards of JobPath, a not-for-profit based in Manhattan that is dedicated to securing and supporting meaningful employment opportunities for adults with autism, and ALUT, Israel’s largest autism not-for-profit. Gary also serves on the Professional Advisory Board of the New England Center for Children (NECC), a residential school for students with autism located in Southborough, Massachusetts.

Gary testified before the New York City Council in support of “Avonte’s Law,” a safety enhancement measure introduced by Councilmember Rob Cornegy that, once fully implemented, will provide an additional layer of protection for students with autism who have a propensity to wander. Most recently, Gary and attorneys Maria McGinley and Jacqueline DeVore worked behind the scenes to help secure a conditional pardon from the Governor of Virginia for “Neli” Latson, a young man with autism, previously placed in solitary confinement, who is now receiving the therapeutic treatment that he needs.