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Special Education in the Modern Age
Eligibility Decisions for Students on the Autism
Spectrum
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Overview Legal Standards for ASD Eligibility Emerging and Contentious Issues
The New DSM-5Recognizing “Autistic-Like Behaviors”Appropriate Assessment ProceduresMeeting CriteriaDetermining Need for Special EducationAppropriate Services vs. Eligibility
Classification
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A Little History . . . Term “autism” first used in early 1900s Associated with schizophrenia Early causation theory: “Cold mothers” 1970s: “Treated” with medication
(LSD) 1990s: Behavior therapy
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Legal Definition of Autism IDEA
Developmental disability significantly affecting verbal and nonverbal communication and social interaction that adversely affects educational performance
Engagement in repetitive activities and stereotyped movements, resistance to change, unusual responses to sensory experiences
34 C.F.R. § 300.8(c)(1)
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Legal Definition of Autism IDEA
Characteristics generally manifest by age 3, but no prohibition on eligibility if they become apparent later
No autism classification if educational performance adversely affected primarily because of emotional disturbance
34 C.F.R. § 300.8(c)(1)(ii)-(iii)
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Legal Definition of Autism California: “Autistic-Like Behaviors”
Any combination of: Inability to use oral language for appropriate
communication History of extreme withdrawal or relating to
people inappropriately Obsession to maintain sameness Extreme preoccupation/inappropriate use of
objects Extreme resistance to controls Peculiar motoric mannerisms/motility patterns Self-stimulating, ritualistic behaviorsEd. Code § 56846.2; Cal. Code Regs., tit. 5, § 3030, subd. (g)
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Need for Special Education Demonstrating criteria not enough
Student must require special education and related services Differentiated instruction Teachers with specialized knowledge/training
Both components required for eligibility
20 U.S.C. § 1401(c)(3); Ed. Code § 56026; Cal. Code Regs., tit. 5, §3030, subd. (g)
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Emerging Issues: The New DSM-5 Current (DSM-IV) (1994)
Umbrella term “Pervasive Developmental Disorders”
Five distinct categories, diagnostic criteria “Autistic Disorder” “Rett’s Disorder” “Childhood Disintegrative Disorder” “Asperger’s Disorder” “PDD – Not Otherwise Specified”
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The New DSM-5 New (DSM-5)
Significant changes -- to be released May 2013
Five categories collapsed into singular diagnosis of ASD
Degree to be rated Severe Moderate Mild
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The New DSM-5 Potential Effects – Divergent Views
Diagnosis for “higher-functioning” students
Some children with Asperger’s syndrome or PDD-NOS no longer on spectrum?
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Criteria more inclusive; lead to more children diagnosed with ASD?
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The New DSM-5 Potential Effects – Divergent Views
Broader definition Better communication between clinicians and
special education personnel?
or Confusing to parents who identify strongly with
specific diagnoses?
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The New DSM-5 Relevancy to Eligibility
Legal standards trump DSM criteriaHistorically
Not accorded significant role in court decisions on eligibility
Will this change with new DSM-5?
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The New DSM-5 Practice Pointers
Watch for it! Inform, brief staff on changesAnticipate questions from parents
Explain that law has not changed Remind of differences between medical
diagnosis and special education eligibility
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Recognizing “Autistic-Like Behaviors” “Identify, locate and evaluate” Burden on district to recognize
potential disability Threshold for suspicion is “relatively low” Inquiry is whether child should be referred
for assessment -- not whether child actually qualifies for services
20 U.S.C. § 1412(a)(3); Ed. Code § 56300; Dept. of Educ. v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp.2d 1190, 35 IDELR 90
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Recognizing “Autistic-Like Behaviors” Case Example: “Relatively Low” Threshold
Parents said Student exhibited many symptoms “consistent with autism”
Student did not respond to speech and language therapy
After subsequent assessment indicated “severe” autism, Student placed in SDC
Orange County Unified School Dist. v. C.K. (C.D. Cal. 2012) No. SACV 11-1253 [59 IDELR 74]
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Recognizing “Autistic-Like Behaviors” Case Example: “Relatively Low”
Threshold Court: District should have listened to observations
Expressed concerns met “relatively low” threshold of suspicion for autism
Timely assessment would have allowed special ed teacher to participate in IEP meetings
Orange County Unified School Dist. v. C.K. (C.D. Cal. 2012) No. SACV 11-1253 [59 IDELR 74]
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Recognizing “Autistic-Like Behaviors” Case Example: Failure to Follow Up
Parent delivered letter requesting assessment
District sent consent for assessment form
Parent never received it; believed intentionally being ignored
Student v. Huntington Beach Elementary School Dist. (OAH 2006) Case No. N2005080264, 106 LRP 49239
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Recognizing “Autistic-Like Behaviors” Case Example: Failure to Follow Up
ALJ: District violated child find duty
Negligently failed to follow up when Parents didn’t respond within reasonable time
District ordered to reimburse for IEEs
Student v. Huntington Beach Elementary School Dist. (OAH 2006) Case No. N2005080264, 106 LRP 49239
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Recognizing “Autistic-Like Behaviors”
Practice Pointers
Know and watch for warning signs of autism
Listen to parents’ description of behaviorPay attention to staff
observations/commentsFollow up on assessment requests
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Appropriate Assessment Procedures Assessments must be conducted by individuals
“knowledgeable of the student's disability” and “competent to perform the assessment”
Numerous, complex and very specific legal requirements apply
34 C.F.R. § 300.304(b); Ed. Code § 56320
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Appropriate Assessment Procedures Case Example: Comprehensive Assessment
Good example of appropriate assessment
Assessors understood all the legal criteria and followed all the rules
Student v. Amador County Unified School Dist. (OAH 2010) Case No. 2010031647, 55 IDELR 241
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Appropriate Assessment Procedures Case Example: Test Administration Flaw
Assessment designed to be completed by Parents; assigned to aide
Portion left blank
Scores very different when done correctly
Yucaipa-Calimesa Joint Unified School Dist. v. Student (OAH 2007) Case No. N2006100272, 47 IDELR 236
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Appropriate Assessment Procedures Case Example: Insufficient Time
Delayed scheduling until two weeks before IEP meeting
Forced to observe Student during illness; no time to observe ABA program at home or preschool
No time to contact private therapist
Student v. Berkeley Unified School Dist. (OAH 2008) Case No. N2007080099, 108 LRP 34227
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Appropriate Assessment Procedures Case Example: Failure to Document
Outside evaluator destroyed test protocols Parents requested review of protocols due to
dispute over accuracy of results Destruction of protocols impeded
participation in IEP process
S.F. v. McKinney Indep. School Dist. (E.D. Tex. 2012) 58 IDELR 157
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Appropriate Assessment Procedures
Practice Pointers
Know areas that need to be assessed to make informed determination
Review all existing data, other evaluationsMake sure there’s enough time Preserve all documents (important when
using outside evaluators)
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Meeting Criteria for Autism Requires two or more behaviors from
non-exclusive list of seven
If assessment appropriately concludes student does not exhibit “autistic-like behaviors,” do not have to reach question of “adverse effect”
Cal. Code Regs., tit. 5, § 3030, subd. (g)
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Meeting Criteria for Autism Case Example: Ritualistic Behaviors
Repetitive fantasy talk about Disney princess characters
But: Talk didn’t exclude other behaviors
Experts: Imaginative talk about favorite characters not indicative of autism; rather, lack of imaginative play is
Dublin Unified School Dist. v. Student (OAH 2006) Case No. N2006060896, 106 LRP 65227
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Meeting Criteria for Autism Case Example: Obsession for Sameness
Criterion established by Student’s need for “perfect academic performance”
Obsessed about completing work, taking tests
But: No other criteria present – had friends, spoke to peers, made eye contact, was well-liked
Student v. Manteca Unified School Dist. (OAH 2009) Case No. 2009060164, 109 LRP 74895
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Meeting Criteria for Autism Case Example: Extreme Withdrawal
Parents of 3-year-old spoke English and Japanese; Grandparents spoke Chinese
Described as “in her own world”; remained aloof and withdrawn at preschool
Behavior consistent with child attempting to acquire three languages, not autism
Irvine Unified School Dist. v. Student (OAH 2012) Case No. 2012030516, 112 LRP 41895
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Meeting Criteria for Autism Case Example: Inability to Use Oral
Language Appropriately Student repeated familiar phrases; didn’t use
language to initiate social contact
But: Understood many words, expressed interest in language, used expression in voice
Only “anecdotal” evidence of inability to communicate
Student v. Los Altos School Dist. (OAH 2007) Case No. N2006060394, 48 IDELR 25
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Meeting Criteria for Autism Case Example: Preoccupation with
Objects Student repeatedly lined up, inspected, touched,
sniffed toy cars and trains
But: Could be redirected away from preferred objects
Extreme preference for toys did not equate to being consumed or fixated with them
Student v. Los Altos School Dist. (OAH 2007) Case No. N2006060394, 48 IDELR 25
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Meeting Criteria for Autism Practice Pointers
Understand each criterion under the lawRemember: “Combination” of behaviors
requiredOther factors may be underlying cause Assessment report should explain criteria,
discuss why (or why not) criteria are met
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Determining Need for Special Ed Results of assessment must show student requires
special education and related services
No eligibility if student requires relatedservices, but not special education
Even if student doesn’t require special education, still may be eligible under Section 504
20 U.S.C. § 1401(c)(3); 34 C.F.R. § 300.8(a)(2)(i); Ed. Code § 56026; 29 U.S.C. § 705(20)(B)
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Determining Need for Special Ed Case Example: At-home vs. At-school
Behaviors Tantrums at home, failed to follow instructions,
distracted by vacuum
Autistic-like behaviors did not interfere with education
Excelled in class, followed directions, not distracted by loud jet noise or unruly classmates
Student v. La Mesa-Spring Valley School Dist. (OAH 2009) Case No. 2009050311, 109 LRP 54643
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Determining Need for Special Ed Other Cases: At-home vs. At-school
Behaviors Newark USD: At-home tantrums; fine at school;
diagnosis relied on non-school sources of information Riverside USD: Autistic-like behaviors at home; did
not need assistance to function in school setting Hopkins ISD: No friendships outside of school;
impairment had no impact on performance
Newark Unified School Dist v. Student (OAH 2007) Case No. N2007040381, 48 IDELR 171; Riverside Unified School Dist. v. Student (OAH 2007) Case No. N2007020300, 49 IDELR 83; Hopkins Indep. School Dist. (SEA MN 2008) 50 IDELR 30
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Determining Need for Special Ed Case Example: General Classroom
Supports Student found ineligible, but given numerous
supports: quiet place to work, social skills instruction
IHO upheld assessment findings despite clear need for various supports
“Nothing on the list of services constituted special education,” including social skills instruction
In re: Student with a Disability (SEA WV 2011) 58 IDELR 85
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Determining Need for Special Ed Case Example: 504 Plan Adequate
Tenth-grade Student with PDD-NOS found ineligible; given 504 plan with classroom accommodations
504 plan effective; Student did not need special education
“Held his own” in class work, understood lessons, actively participated
Student v. San Jose Unified School Dist. (OAH 2010) Case No. 2009101232, 110 LRP 28774
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Determining Need for Special Ed Case Example: 504 Plan Inadequate
Received classroom aide, OT and “quiet place” under 504 plan
Serious behavior problems that aide couldn’t manage
Student required special education to address needs
Student v. Monrovia Unified School Dist. (OAH 2012) Case No. SN02-01155, 38 IDELR 84
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Determining Need for Special Ed
Practice Pointers
Difficulties outside of school won’t trigger need to assess unless impact classroom performance
Agreeing to provide unnecessary services can lead to trouble
Needs can change frequently – closely monitor effectiveness of accommodations
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Services vs. Classification “Child’s entitlement is not to a specific
disability classification or label, but to FAPE”
Proper IEP addresses student’s needs regardless of eligibility category
But misclassification can have consequences
Letter to Fazio (OSEP 1994) 21 IDELR 572
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Services vs. Classification Case Example: It’s Progress that Counts
Student eligible as “speech-language impaired”
Parents believed classification of “autistic-like behaviors” would have resulted in more appropriate program
Placed in program to address language needs, social skills deficits; included children with autism
Student v. Paso Robles Joint Unified School Dist. (OAH 2012) Case No. 2011070195, 112 LRP 33905
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Services vs. Classification Case Example: It’s Progress that Counts
ALJ: No showing that change of classification would have resulted in change of services
Student progressed on goals; no behavior issues
Parents claimed classification deprived Student of ABA; but methodology is up to District
Student v. Paso Robles Joint Unified School Dist. (OAH 2012) Case No. 2011070195, 112 LRP 33905
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Services vs. Classification Case Example: Autism or ED?
Student initially eligible based on Asperger’s syndrome
Triennial evaluation revealed anxiety and depression; social skills deficits more attributable to ED
Assessments supported change in classification;
depression anxiety evident to teachers
George West Indep. School Dist. (SEA TX 2011) 57 IDELR 88
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Services vs. Classification Case Example: Autism and ID?
Student with autism found to have below average intellectual functioning; District added ID category
No substantive denial of FAPE by adding ID category
No indication that secondary ID classification would reduce expectations for Student
Student v. Ocean View School Dist. (OAH 2012) Case Nos. 2011080856 and 2011090503, 59 IDELR 117
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Services vs. Classification Case Example: Why Classification Matters
Student classified with “mental retardation”; challenged by Parents seeking “autistic-like behaviors” eligibility
ALJ upheld District’s assessment but classification flawed -- should have been eligible under both categories
Student received educational benefit from SDC placement
Weissburg v. Lancaster School Dist. (9th Cir. 2010) 591 F.3d 1255, 53 IDELR 249
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Services vs. Classification Case Example: Why Classification Matters
9th Circuit awarded Parents attorney fees
No IDEA right to proper classification, but District erred by “failing to consider legal ramifications of change”
Adding autism category entitled Student to placement with teacher qualified to teach students with autism
Weissburg v. Lancaster School Dist. (9th Cir. 2010) 591 F.3d 1255, 53 IDELR 249
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Services vs. Classification Practice Pointers
Appropriateness of services is essentialStrive for classifications that accurately
identify autism and all other disabilitiesCommunicate with parents on why’s and
how’s of testing for secondary eligibility category
Know how, when and why classification matters
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Take Aways . . . Understand eligibility rules Watch for warning signs Listen to parents Always focus
on child’s needs!!
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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .