1

All Things Considered

One-to-One Aides

2

What We’ll Consider . . . Need for One-to-One Aide for Provision of FAPE

Student v. Torrance USD Student v. Pasadena USD

One-to-One Aides and the LRE Obligation Student v. Santa Monica-Malibu USD Student v. Julian USD

Selection and Replacement of One-to-One Aides Student v. Newport Mesa USD Student v. Ripon USD

3

I. Need for One-to-One Aide

for Provision of FAPE

4

Legal Overview Need for one-to-one aide, like provision

of all special education and related services, must be determined on individual basis Rowley FAPE standard “Some educational benefit”

Whether one-to-one aide is necessary for student to benefit from education is determined by IEP team through assessment procedures set forth in IDEA and Education Code

(34 C.F.R. §300.15; Ed. Code §56320)

5

Legal Overview

If team determines one-to-one aide is necessary for student to receive FAPE, aidemust be provided at no cost to parents

If team believes some lesser assistance is appropriate (e.g., classroom aide or BIP), explanation of those services should be discussedat IEP meeting and outlined in IEP document

(34 C.F.R. §300.15; Manalanson v. Board of Educ. of Baltimore City (D.Md. 2001) 35 IDELR 122)

6

Legal Overview

Denial of FAPE can occur when team refuses to “adequately consider” parents’ request for one-to-one aide Predetermination arises by refusing to consider

other options and not allowing parents to voice their concerns

District policies on aides that effectively rule out meaningful discussion of the issue at IEP meetingsis also predetermination

(See, J.G. v. Douglas County School Dist. (9th Cir. 2008) 51 IDELR 119; Houston Indep. School Dist. (SEA TX 2003) 103 LRP 17154 [school policy of not providing one-to-one aides for students with ADHD])

7

Legal Overview

But providing one-to-one aide is not a guarantee of FAPE Can impede generalization of skills and negatively

impact FAPE if student becomes overly reliant on aide

“Learned helplessness”

IDEA statute includes goal of “promoting student’s independence”

(See, A.C. and M.C. v. Board of Educ. of the Chappaqua Cent. School Dist. (S.D.N.Y. 2007) 46 IDELR 294, rev’d, (2d Cir. 2009) 51 IDELR 147; 20 U.S.C. §1400(c)(1))

8

FAPE – Case Example #1:Student v. Torrance USD (OAH 2011) Facts

Parents rejected proposed IEP for 5-year-old Student with autism that called for placement in collaborative preschool

Continued his enrollment in private preschool and privately funded Student’s one-to-one aide support from NPA

Settlement with District would place Student in gen ed kindergarten if Parents did not consent to subsequent IEP

District then proposed kindergarten IEP that offered: Group behavior intervention services Consultative behavior intervention services But no one-to-one aide because District believed Student was:

Functioning independently with appropriate behavior Participating in classroom and was on par with peers

9

FAPE – Case Example #1:Student v. Torrance USD (OAH 2011)

Facts (cont’d) Parents rejected proposed IEP Per previous settlement agreement’s stay-put clause,

Student received one-to-one aide from NPA in District’s kindergarten(to be transitioned to District aide after four weeks)

Parents filed for due process, claiming Student required one-to-one aide in District classroom who was qualified to work with children with autism

District contended that its IEP offered FAPE through school-based behavior supports without one-to-one aide

10

FAPE – Case Example #1:Student v. Torrance USD (OAH 2011) Decision

ALJ: Parents failed to show Student needed dedicated one-to-one aide in order to receive FAPE

District staff observed Student at private preschool withone-to-one aide and noted that Student:

Was able to participate in classroom activities Was engaged and on-task Had little difficulty communicating with peers

Aide was observed to have redirected Student on playground on only one occasion

When special ed teacher visited preschool, no aides were in classroom with Student

11

FAPE – Case Example #1:Student v. Torrance USD (OAH 2011)

Decision (cont’d) Testimony of Parents and Parents’ experts that Student

required one-to-one aide to receive FAPE was not persuasive

NPA aides were observed “collecting data, priming and prompting Student and nothing else”

No indication that aide ever provided intensive one-to-one behavior intervention

Testimony of expert that Student required one-to-one aide was not based on FAPE requirement but on belief that District was required to provide “best optimum program and services available”

Optimization is not the legal standard

12

FAPE – Case Example #1:Student v. Torrance USD (OAH 2011) Decision (cont’d)

District offered appropriate behavior supports through its autism services program, which was staffed by behavior analysts, special ed teachers and paraeducators

Group services implemented during recess, lunch and unstructured time to assist Student with socialization

Consultation services would occur in classroom setting Although Student’s deficits included communication, he

mastered social skills and engaged with classmates such that he did not need support of one-to-one aide to access classroom

ALJ’s decision affirmed by U.S. District Court (Student v. Torrance Unified School Dist. (OAH 2011) Case No. 2010080289, 111 LRP 6889, aff’d,

G.D. v. Torrance Unified School Dist. (C.D. Cal. 2012) 857 F. Supp. 2d 853, 58 IDELR 156)

13

FAPE – Case Example #2:Student v. Pasadena USD (OAH 2014) Facts

Student placed in foster care at age 5 Parents both incarcerated Placed in custody of individual who became educational

rights holder (“Parent”) Numerous behavior problems in kindergarten Removed to Montessori school, which requested that he

not return after kindergarten year due to behavior issues Placed in private school through December, but Parent

was asked to find another placement following severe behaviors

Re-enrolled in District through end of first grade, where he continued to be physically and verbally aggressive

14

FAPE – Case Example #2:Student v. Pasadena USD (OAH 2014) Facts (cont’d)

In fall of Student’s second grade year, Parent requested special ed assessment, which indicated several areas of concern

Clinical psychologist at County Department of Mental Health diagnosed PTSD, ADHD and chronic depression

District found Student eligible as OHI IEP offered BSP and counseling (20 minutes per week)

District refused Parent’s request for one-to-one aide, advising Parent that less intensive interventions must be attempted first

Negative behaviors continued throughout second grade Parent alleged denial of FAPE for refusal to provide one-to-one

aide; District claimed Student’s socialization improved through counseling

15

FAPE – Case Example #2:Student v. Pasadena USD (OAH 2014) Decision

ALJ concluded that Student required one-to-one aide to receive FAPE

Teacher testified that: Student needed constant guidance and supervision Academic problems were related to behavior issues Behavior was better when she worked with him one-to-one

Assessment reports indicated that Student was exhibiting behavior disturbances on daily basis that substantially interfered with ability to benefit from education

Clinical psychologist at County Department of Mental Health also supported providing Student with one-to-one aide due to severe behavior issues

16

FAPE – Case Example #2:Student v. Pasadena USD (OAH 2014) Decision (cont’d)

District’s failure to provide one-to-one support “was not premised on . . . Student’s unique needs but rather on some vague District policy”

No justification for requiring “waiting period” to determine necessity of aide or for first requiring less intensive interventions given severity of Student’s behavior

ALJ ordered District to amend IEP to provide one-to-one aide for five hours per day every school day

ALJ also awarded comp ed for failure to offer appropriate social skills services and mental health counseling

(Student v. Pasadena Unified School Dist. (OAH 2014) Case No. 2014051114, 114 LRP 49748)

17

One-to-One Aides and FAPE:Other Noteworthy Cases Student v. Baldwin Park USD (OAH 2012)

6-year-old with autism had required one-to-one aide in previous placements due to aggressive behaviors

Although FAA was pending, District did not need to wait for results before providing one-to-one aide given Student’s history

IEP denied FAPE due to inadequate behavior supports

Student v. Los Angeles USD (OAH 2014) District’s failure to provide 10-year-old with one-to-one aide

to assist with toileting skills did not deny FAPE Protocol of providing Student assistance only when needed

was appropriate as it allowed Student to develop independence

18

One-to-One Aides and FAPE:Lessons Learned Assessing Need for One-to-One Aide

As part of evaluation process for determining whether a student requires one-to-one aide, IEP teamsshould take these steps:

Collect data on areas of need Observe the classroom and determine if student is following

classroom procedures and/or making use of IEP accommodations

Interview teacher, parents and student (if appropriate) Determine whether student needs aide support for entire day Include findings of need for aide support in assessment reports Include same findings in IEP notes

19

One-to-One Aides and FAPE:Lessons Learned Weigh Other Options

Before assigning one-to-one aide, IEP teamsshould examine whether student’s needs can be met through other means:

For students with attention difficulties, consider classroom modifications/accommodations or behavior support

For students with aggressive behaviors, consider BIP, behavior support in classroom, staff behavior training

For students with academic difficulties, consider change in curriculum or instructional setting

If student already receives support, ask if needs can be met by adjusting or increasing existing supports or if student needs instruction on using them more effectively

20

II. One-to-One Aides and the LRE Obligation

21

Legal Overview

Where Does LRE Come In? In order for district’s offer of special education

services to constitute a FAPE under Rowley standard, the offer of educational services and/or placement must be:

Designed to meet student’s unique needs Comport with student’s IEP Be reasonably calculated to provide student

with some educational benefit Be in the LRE

22

Legal Overview The LRE Mandate

To the maximum extent appropriate, students with disabilities should be educated with nondisabled students; and

Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily

(34 C.F.R.§ 300.114(a))

23

Legal Overview

LRE Terminology “Full inclusion”: Placement full-time in a general

education classroom with supplementary aids and services (which can include one-to-one aide)

“Mainstreaming”: Placement in special education setting with part-time participation in general education classroom with academic and/or nonacademic support services

24

Legal Overview What Do the Courts Say About LRE

and Inclusion? 9th Circuit: The Rachel H. four-factor balancing test:

1. Educational benefits of general education with supplemental aids/services 2. Non-academic benefits of the general education classroom 3. Effect of student’s presence on others in the general education classroom4. Cost of providing instruction/services in the general education classroom (Rarely litigated)

(Sacramento City Unified Sch. Dist. v. Rachel H. (9th Cir. 1994) 14 F.3d 1398, 20 IDELR 812)

25

Legal Overview

What is the relationship between “some educational benefit,” LRE and the Rachel H. factors in the context of one-to-one aides?

Let’s look at the cases . . .

26

LRE – Case Example #1:Student v. Santa Monica-Malibu USD (OAH 2012) Facts

Student diagnosed with autism at 18 months of age Prior to preschool, Parents requested special ed assessment

Advised District that Student had been in private preschool fortwo weeks but was asked to leave due to behavior difficulties

Student also attended private toddler and parent program (Branches Atelier) on Fridays

District found Student eligible under autism category and offered SDC preschool placement

District then offered collaborative preschool setting after Parents indicated they wanted general ed placement

District believed Student would need constant assistance in general ed preschool, which would create dependence

27

LRE – Case Example #1:Student v. Santa Monica-Malibu USD (OAH 2012) Facts (cont’d)

Parents withdrew Student from collaborative preschool after seven weeks and unilaterally placed him at Branches Atelier with one-to-one aide

District notified Parents it would not reimburse them for private tuition or aide services

Student attended private placement for remainder of school year and all of following year, making some progress with his aide but not meeting all of his annual goals in District’s IEP

Parents filed for due process requesting reimbursement, claiming District denied FAPE by not agreeing to general ed placement with one-to-one aide

28

LRE – Case Example #1:Student v. Santa Monica-Malibu USD (OAH 2012) Decision

ALJ found for District, determining that general ed placement with one-to-one aide was not LRE for Student

Applied all four Rachel H. factors:1. Very little educational benefit to full inclusion even with one-to-one aide because:-- Student required constant teacher interaction-- Student needed structure of special day class with trained special ed teacher

-- Student lacked peer interaction skills, had limited language use, had difficulties with transition and focused on same tasks

29

LRE – Case Example #1:Student v. Santa Monica-Malibu USD (OAH 2012) Decision (cont’d)

2. Severe autism, as well as communication, attention and behavioral needs, “far outweighed” any noneducational benefit in social skills that might be derived from full inclusion

-- Even with trained aide, Student did not pay attention to peers, model or imitate them, or communicate with them

-- Student’s lack of interest in peer interaction demonstrated that, developmentally, he required a more specialized placement

-- Student required collaborative team of special ed professionals and aides in SDC setting

30

LRE – Case Example #1:Student v. Santa Monica-Malibu USD (OAH 2012) Decision (cont’d)

3. Student’s presence in fully included classroom would affect teacher and other students

-- Even with one-to-one aide, Student would require significant amount of teacher’s attention to redirect him to stay on task for lessons

-- Attention span was 10-15 seconds-- Difficulties in previous private preschool general ed

program demonstrated that such setting was not appropriate

-- Presence in general ed classroom would result in taking instructional time away from other students

31

LRE – Case Example #1: Student v. Santa Monica-Malibu USD (OAH 2012) Decision (cont’d)

4. No evidence of cost of mainstreaming Student in general ed setting with one-to-one aide vs. SDC setting

-- Invoices provided by Parents merely indicated costs of placing Student in private preschool

ALJ denied reimbursement, finding SDC setting proposed by District was LRE and offered FAPEALJ’s decision affirmed by U.S. District Court

(Student v. Santa Monica-Malibu Unified School Dist. (OAH 2012) Case Nos. 2011090122 and 2011051000, 59 IDELR 20, aff’d, A.R. v. Santa Monica-Malibu Unified School Dist. (C.D. Cal. 2013) 61 IDELR 213)

32

LRE – Case Example #2: Student v. Julian Union ESD (OAH 2013) Facts

Beginning in 2010, District retained NPA to provide services for Student with intellectual disability

NPA used Relationship Development Intervention (“RDI”) methodology (focusing on development of mentor-apprentice relationship between aide and student)

Student was included in general ed classroom for four days per week with one-to-one aide support

Part of instruction occurred in one-to-one setting outside classroom (Student’s “man cave”)

April 2011 IEP contained BSP and various other behavior interventions

33

LRE – Case Example #2: Student v. Julian Union ESD (OAH 2013) Facts (cont’d)

In September 2011 (second grade), Student’s behavior grew worse when NPA aide was not able to implement RDI protocols, but improved “rapidly and dramatically” when aide was replaced with another who could implement RDI

By June 2012 (end of second grade), Student met only someof his academic goals

But IEP no longer stated that behavior was impeding learning and he had developed some independence from his aide

District’s proposed IEP for 2012-2013 (third grade) recommended that Student be placed in SDC with only small amount of mainstreaming

34

LRE – Case Example #2: Student v. Julian Union ESD (OAH 2013)

Facts (cont’d) IEP team believed that Student would not gain academic

benefit in full inclusion setting with his NPA one-to-one aide

Determined that RDI would not benefit Student academically (reading) and that one-to-one instruction from NPA aide would not teach Student to read

Concluded that Student needed to be with peers who were working on same level of material and needed instruction from special ed teacher

Parents believed Student should continue in full inclusion with NPA aide using RDI methodology, citing social benefits Student gained from full inclusion with his aide

35

LRE – Case Example #2: Student v. Julian Union ESD (OAH 2013) Decision

ALJ: Rachel H. factors “weigh in favor of general education inclusion placement”1. Despite District’s argument to contrary, Student received educational benefit in inclusion setting with RDI-trained aide-- Student progressed on several academic goals despite not progressing on sight-word reading goal-- Reasonable to conclude he would continue making progress in same setting-- District’s view that Student needed peers at same academic level in order to benefit from instruction was contrary to LRE-- Student would still be member of full-inclusion class, despite some pull-out services with one-to-one aide

36

LRE – Case Example #2: Student v. Julian Union ESD (OAH 2013) Decision

2. Student gained nonacademic benefits in general ed placement with his RDI-trained aide-- Had friends in general ed class-- Participated with peers in typical activities-- Enjoyed interacting with classmates3. Student’s behavior no longer interfered with his learning or that of others-- Other students in the class were able to assist Student and he learned from them

37

LRE – Case Example #2:Student v. Julian Union ESD (OAH 2013) Decision (cont’d)

4. Cost factor weighed in favor of general ed placement with one-to-one aide-- District witnesses admitted it would be less expensive to educate Student in general education classroom than it would at the SDC

ALJ found that Student had gained benefit in every area – academically, socially and behaviorally – in full-inclusion setting with his one-to-one aideNo compensatory education or other remedy awarded since District had continued to provide general education placement with NPA-employed, RDI-trained aide as stay-put(Student v. Julian Union Elementary School Dist. (OAH 2013) Case No. 2012100933, 113 LRP 13667)

38

One-to-One Aides and LREOther Noteworthy Cases Student v. Roseville City ESD (OAH 2009)

Although presence of Parent as sixth-grade Student’s one-to-one aide reduced number of disruptive incidents, continuing such service in middle school would be overly restrictive

District’s placement in autism program, with behavior interventions designed to reduce need for aide, offered FAPE

Student v. Oakdale Joint USD (OAH 2012) District’s SDC placement denied FAPE in LRE to Student

with intellectual disability No indication that Student could not access general ed

setting, with necessary supports, including one-to-one aide

39

One-to-One Aides and LRE:Lessons Learned LRE Considerations

When determining whether one-to-one aidein general education setting is LRE for a student, remember the Rachel H. factors used by courts and OAH:

1. Educational benefits in general education2. Nonacademic (social) benefits of general education3. Effect on teacher and other students4. Cost considerations

Also remember that one of the goals of the IDEA is to foster students’ independence

40

One-to-One Aides and LRE:Lessons Learned Fading the Aide

There may come a point where one-to-one aide is providing level of assistance that results in over-dependence and/or isolation from peers

To preserve LRE and prevent potential disputes: Inform parents that student may improve to point where he or she no

longer needs aide Explain purpose for aide Identify skills/behaviors that can be indicators that student is ready to

reduce dependence on aide Collect data regarding student’s progress toward independence Develop “fading plan” with specific, measurable criteria

41

III. Selection and Replacement of One-to-One

Aides

42

Legal Overview Choice of personnel, including one-to-one

aides, is under exclusive discretion of districts

Courts have held that “so long as qualified personnel are available, the ‘[d]eterminations as to which personnel will provide services to a child for services under [IDEA] are left to State and local authorities.’”

(Moubry v. Independent School Dist. No. 696 (D. Minn. 1997) 27 IDELR 469, citing Letter to Williams (OSEP 1994) 21 IDELR 73; see also, N.R. v. San Ramon Valley Unified School Dist. (N.D. Cal. 2007) 47 IDELR 98.)

43

Legal Overview Disputes over whether one-to-one aide

selected by district can meet student’s unique needs can arise in several different contexts

The following cases highlight disputes concerning: Aide’s gender Desire of parents to keep aide “unknown” to

student Change of aide through termination of NPA

contract

44

Aide Selection – Case Example #1: Student v. Newport-Mesa USD (OAH 2011) Facts

Student with autism was enrolled in District preschool SDC District funded five hours per week of NPA home behavior

services Student began kindergarten in District SDC but was removed

unilaterally by Parents in November to nonpublic school with NPA “shadow” aide services

Student returned to District in February and was placed in a general ed classroom with a one-to-one ABA aide from NPA and one hour per month of support from District's autism specialist

During first grade, Student made progress with District’s “independence facilitator” (ABA-trained aide) in his classroom for 30 hours per week and 60 minutes monthly support through District's autism specialist

45

Aide Selection – Case Example #1:Student v. Newport-Mesa USD (OAH 2011) Facts (cont’d)

In summer following first grade, Parents requested IEP team to change Student’s aide to “someone new” to facilitate fading reliance on aide and increasing Student’s independence

Parents also asked for male aide to address Student’s dawdling and playing while in bathroom

District believed it would not be prudent to subject Student to another aide change, but later assigned him new (female) aide

Parents objected to District’s efforts to introduce Student to his aide, claiming only a male aide unknown to Student could facilitate fading and independence, as well as address his bathroom behavior

46

Aide Selection – Case Example #1: Student v. Newport-Mesa USD (OAH 2011) Decision

ALJ supported IEP team’s decision that Student was not ready to have his aide faded and that aide should be identified to Student because he would need redirection

Testimony of NPA representative that Student needed increased aide support was inconsistent with position that Student should be provided with aide unknown to him to facilitate independence

ALJ credited testimony of District’s autism program coordinator

Even if aide was not directly introduced to Student, he would figure out that aide was present for his benefit

Student was not ready to have aide faded because he required much more than minimal prompting

47

Aide Selection – Case Example #1: Student v. Newport-Mesa USD (OAH 2011) Decision (cont’d)

ALJ deferred to District’s selection of personnel, finding that Student did not require male aide to receive FAPE

Other staff was available to check on Student if he dawdledin the bathroom

No evidence that female aide would be unable to encourage Student’s interactions with male peers on playground

School psychologist indicated that Student’s behavior was sexually appropriate and he did not require male aide to help with his participation in sports

(Student v. Newport-Mesa Unified School Dist. (OAH 2011) Case No. 2010071343, 57 IDELR 238)

48

Aide Selection – Case Example #2: Student v. Ripon USD (OAH 2011)

Facts 10-year-old Student with autism had been provided with

one-to-one aide since kindergarten through NPA (Genesis) under contract with District

Student worked with 10 different Genesis aides over four years and did not have difficulty with transitions

All of Student’s IEPs specified he would receive behavior intervention services from any NPA under contract with District

In November 2009, District proposed replacing Genesis with its own one-to-one aides

When Parent objected, District continued to retain Genesis

49

Aide Selection – Case Example #2: Student v. Ripon USD (OAH 2011) Facts (cont’d)

In January 2011, District and Genesis agreed to terminate services effective in February

District notified Parents that another NPA (Learning Solutions) would replace Genesis

District provided Student with transition between aides by arranging Learning Solutions aide to overlap with Genesis aide for four days

However, Student did not attend school for two of those days Parents participated in discussions about transition from

Genesis to Learning Solutions After rejecting District’s proposed IEP in February 2011,

Parents filed for due process

50

Aide Selection – Case Example #2: Student v. Ripon USD (OAH 2011) Decision

ALJ found in favor of District, finding District did not predetermine manner in which Student was transitioned between NPA aide services

Decision affirmed by District Court District within rights to change providers and IEP

permitted such change by not specifically identifying which NPA would provide one-to-one aide services for Student

No relief under IDEA for Parent who does not agree with District’s choice of provider, so long as choice “does not affect substantive quality of IEP”

Parents did not allege Learning Solutions was unqualified to provide services

51

Aide Selection – Case Example #2: Student v. Ripon USD (OAH 2011) Decision (cont’d)

No evidence of predetermination regarding transitionbetween NPAs

Termination of contract with Genesis did not impact IEP team’s decision about transitioning between the two NPAs

“Fair reading of the record suggests District and other IEP team members simply believed [Student] did not require an elaborate transition plan”

Parents had many opportunities to participate meaningfully in developing significant elements of IEP and also had opportunityto provide input on Student’s transition between agencies

(Student v. Ripon Unified School Dist. (OAH 2011) Case No. 2011030842, 111 LRP 58100, aff’d,Z.F. v. Ripon Unified School Dist. (E.D. Cal. 2013) 60 IDELR 137)

52

Selection of One-to-One AidesOther Noteworthy Cases Student v. Amador County USD (OAH 2011)

Replacement of one-to-one aide with substitute aide who had no prior experience working with students with autism affected quality of Student’s program to extent that it denied FAPE

Student began refusing to go to school, demonstrated increased aggression and failed to make academic progress

Student v. Los Angeles USD (OAH 2006) Assigning male aide to 6-year-old girl with autism

was not appropriate Student had unique needs in areas of toileting and self-help

that required use of female aide

53

Selection of One-to-One AidesLessons Learned Discussing Selection of Aide with Parents

Although parents do not drive aide selection process, engaging in dialogue with them aboutIEP team’s choice is important

Consider these communication pointers: Determine if parents have any specific concerns and, if so,

discuss them with selected aide Explain any special training/experience aide has to work

with student If changing the aide, explain reasons why (e.g.,

overdependence) Provide periodic data about how student is progressing

with aide’s assistance

54

Selection of One-to-One AidesLessons Learned Is Gender a Factor?

As cases demonstrate, gender of aide can be an issue of concern (and litigation) for parents

However, be wary of basing aide selection decisions on gender rather than the qualities essential to meeting needs of student

55

Take Aways . . . While some students may need support

of one-to-one aide to receiveeducational benefit in LRE, for othersassigning an aide may be unnecessarilyand inappropriately restrictive

Each decision must weigh both thestudent’s individual needs and thesupports available in the setting wherethe student’s IEP will be implemented

56