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Thursday, March 19, 2015

Academic Progress Alone is not FAPE

From the Law Office of Daniel S. Perlman

By Dan Perlman, Esq.
March 18, 2015

A recent Massachusetts Bureau of Special Education Appeals (BSEA) decision makes clear that an Individualized Education Program (IEP) that allows for academic progress is not enough. Even when an IEP is appropriate academically, if it does not provide appropriate services to address other areas of need, such as social and emotional needs, it is a denial of a Free and Appropriate Public Education (FAPE).

In Student v. Acton and Acton-Boxborough Public Schools – BSEA # 14-05736, Hearing Officer Rosa Figueroa supported a family’s decision to unilaterally place their fourteen-year-old child, who has a diagnosis of autism, in a private school.

According to the hearing officer, “the sufficiency of a student’s IEP is not measured solely by academic success … an IEP that provides FAPE must promote a student’s development in all areas of need.”

The student called everyone a friend but did not understand the elements of friendship (e.g., trust, having fun together, etc.). He had limited understanding of perspective taking and the nuances of social norms. After school, he preferred to play video games, watch television, or read by himself.

The social isolation was taking an emotional toll.

The hearing officer gave significant weight to an independent evaluator’s testimony that Acton’s program was fragmented, and it “lacked the type of cohesiveness necessary for the natural development of relationships Student required.”

Parents and independent evaluators asked Acton repeatedly for a goal related to friendship, and for a program that could provide the student with appropriate peers. The hearing officer found that Acton failed to provide these and other necessary elements of an appropriate program.

On the other hand, the private placement (Learning Prep School), provided the student with like peers and direct social skills instruction throughout his school day. As a result, the student made significant social and emotional gains over a short period.

Despite a finding that “from an academic standpoint Acton provided Student a program that offered him a FAPE, and its proposed seventh-grade academic program would have also afforded Student a FAPE,” parents still prevailed. The hearing officer found that Acton’s program did not and would not allow for social and emotional progress.

The hearing officer awarded the family tuition reimbursement and ordered Acton to continue to pay for the student’s placement at Learning Prep School.

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