Ninth Circuit Affirms School District’s Determination That 1:1 Aide May Actually Hinder Social Skills of Student with Autism

Summary: On March 2, 2015, the US Court of Appeals, Ninth Circuit released an unpublished decision in which it affirmed a school district’s reliance on a behavioral specialist’s opinion that, despite a parent’s insistence on the student being provided with a 1:1 aide to assist with socialization, the presence of an aide might lead to the student becoming more socially isolated and less independent. [Lainey C. v. Department of Education, State of Hawaii, 13-16903 (March 2, 2015) affirming Lainey C. v. Department of Education, State of Hawaii, 12-00223 SOM/BMK (April 30, 2013).]

Facts: Student was a 12-year-old child with autism eligible to receive special education and related services under the IDEA. Compared to other students with autism, Student was described as a “high-functioning individual.” Student’s general education teacher had 32 students in her class at the beginning of the 2010-2011 school year, however that number was reduced to 22 student when, in October 2010, the school added another teacher to her classroom. The teacher subdivided her class into small groups of four to five students to teach socialization and social etiquette skills. In the small groups, the children were taught to interact, to help and care for each other, to share things and to “group problem solve.”

An IEP team meeting was held on August 4, 2011 at which multiple goals and objectives were developed.  To address Student’s socialization and communication needs, one of the goals and objectives in this IEP called for Student to work independently, have necessary materials, follow an organizational checklist, and participate appropriately in large academic group settings. Another goal in the August 4, 2011 IEP called for Student to use coping skills, appropriate personal space, to take on the perspective of others, to control emotions, work on body language, stay on topic, and refrain from inappropriate comments.

In addition, Student was provided with social skills group training, autism consultation for four hours per month, modeling, and preferential seating next to on-task peer which, based on a behavior health specialist’s opinion, were appropriate to address Student’s behavioral needs. The specialist further opined that Student did not require a 1:1 aide “as having a 1:1 can lead to social isolation and less independence.”

At hearing, Student challenged the District’s decision not to provide her with a 1:1 aide and offered the testimony of her general education teacher who said that in the first semester of Student’s fourth-grade year, it would have been “helpful” to have an aide for Student. Student also relied on the expert testimony of a psychologist who suggested that Student needed a social skills program with “a lot of direct practice, one on one learning about emotions in herself and learning about perspectives of other people before it would make sense for her to really do a lot of social skills work with other people.”

Issue: Under these circumstances, did the District deny Student FAPE by failing to provide the Student with a 1:1 aide to address Student’s social skills needs?

Conclusion: No, the District appropriately determined that student did not require a 1:1 to address her social skills needs.

Discussion: Here, the behavior specialist credibly testified that at the August 4, 2011 IEP meeting, the team wanted to try a social skills group and autism consultation before implementing a 1:1 aide. The specialist testified that when a student is shadowed by an adult helper, “the risk is that you become even more socially isolated, that you become less independent,” and that an aide “doesn’t necessarily improve socialization.”

With respect to the general education teacher’s testimony that a 1:1 aide would have been “helpful” for Student to have, the court said that “’helpful’ is not the same as being necessary for the provision of FAPE.” Regarding the psychologist’s testimony, the court determined that the hearing officer was not required to order a 1:1 aide based on a single expert opinion and that the District reasonably determined that an aide was not necessary under these circumstances.

Practice Tip: Parental insistence on 1:1 aides and the willingness to file for due process and/or go to hearing over the matter seems to be a growing trend in special education for a variety of reasons, not all of which are related to student needs. This case underscores that, while a 1:1 aide may be appropriate in some cases, their use can actually have unintended consequences. Thus, an IEP team should not agree to provide a 1:1 aide because it would be “helpful” or simply to placate a parent/guardian and should do so only when it is necessary to provide a student with FAPE.


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