deborah ettinger 1

Autism and Eligibility2014 ACSA Every Child Counts Symposium

Deborah Ettinger, Esq. Lozano Smith

Sara JochamAssistant Superintendent, Special Education

Capistrano Unified School District

Friday, January 17, 201410:15 a.m. – 11:45 a.m.

Introduction

• This presentation will review eligibility requirements for special education, and in particular under the category of autistic-like behavior.

• We will also review case law and provide insight through the lens of an attorney and Assistant Superintendent for Special Education (former speech and language pathologist).

Defining Autism ― Federal

• The IDEA defines autism as: “[A] developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child's educational performance.

Defining Autism – Federal (Cont’d.)

Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.”

(34 C.F.R. § 300.8(c)(1)(i).)

Defining Autism ― California

• California Code of Regulations defines “autistic-like behaviors” as:

(1) An inability to use oral language for appropriate communication.(2) A history of extreme withdrawal or relating to people inappropriately and continued impairment in social interaction from infancy through early childhood.(3) An obsession to maintain sameness.

Defining Autism ― California (Cont’d.)

(4) Extreme preoccupation with objects or inappropriate use of objects or both.(5) Extreme resistance to controls.(6) Displays peculiar motoric mannerisms and motility patterns.(7) Self–stimulating, ritualistic behavior.

(Cal. Code Regs., tit. 5 § 3030, subd. (g).)

Individuals with Exceptional Needs

• California defines “individuals with exceptional needs” as: – A student identified by an IEP team as a

child with a disability, and– The student’s impairment requires

instruction and services which cannot be provided with modification of the regular school program.

(Cal. Ed. Code § 56026, subd. (a), (b).)

Individuals with Exceptional Needs

• Administrative law judges and courts use the Rowley benefit standard in determining whether a student qualifies for special education. Hood v. Encinitas Union School District, 486 F.3d 1009 (9th Cir. 2007).

Practical Application

• Look beyond a doctor’s note or private evaluation for eligibility

• Discuss both prongs at the IEP meeting• Once eligible does not mean always

eligible for special education services• Keep documentation of progress in

order to reduce/eliminate services

Dublin Unified School District v. Student, No. 2006060896 (OAH 2006)

• When student was two years old she received early intervention services and was diagnosed with Pervasive Developmental Disorder, Not Otherwise Specified (“PDD-NOS”).

• At three years old, student began receiving special education services under the eligibility category of autistic-like behaviors. She split attendance between a diagnostic preschool and general education preschool.

• A few months later she began attending general education preschool exclusively.

Dublin Unified School District v. Student, (Cont’d.)

• Prior to entering kindergarten, student was evaluated and diagnosed with high functioning autism. The developmental pediatrician found student met six of the twelve criteria for autism in the DSM-IV.

• Student attended general education kindergarten. A shadow aide assisted student. She received resource specialist program tutoring, behavioral consultation from a non-public agency (“NPA”), and social skills training from the NPA.

Dublin Unified School District v. Student, (Cont’d.)

• During kindergarten, student performed at an average level in most academic areas. Student’s teacher noted she needed improvement in doing neat and careful work.

• Her teacher noted student’s difficulty sharing and beginning work is typical for kindergarten students.

Dublin Unified School District v. Student, (Cont’d.)

• In her triennial reassessment, district school psychologist found student did not manifest behaviors consistent with an autism diagnosis or with criteria for the special education eligibility category of autistic-like behaviors. – Student had average intellectual skills.– Displayed some deficits in social skills and

adaptive behavior skills.

Dublin Unified School District v. Student, (Cont’d.)

• Students’ speech-language assessment found she scored in the average range on tests of functional language skills, receptive language, and expressive language.

• A behavioral and social skills assessment was conducted. Student was appropriately on-task in the classroom, played with other children on the playground, initiated social activities, and did not display unusual behaviors.

Dublin Unified School District v. Student, (Cont’d.)

• Assessors concluded Student’s social and academic skills were within the average range when compared to typical peers in her kindergarten class and she did not require specialized services.

Dublin Unified School District v. Student, (Cont’d.)

• At the IEP meeting, district recommended that Student be exited from special education because she no longer met the eligibility criteria and no longer required special education.

• District proposed that student be referred to the Student Study Team for ongoing monitoring

• Parents did not consent to District’s proposal.

Dublin Unified School District v. Student, (Cont’d.)

• Parents requested an independent evaluation.

• A psychologist found that while Student made good progress, she was still autistic and needed services in behavior, social skills, and communication. – Student was functional in structured situations,

but had difficulty generalizing skills to unstructured situations.

– Student engaged in “fantasy talk” about Disney characters, particularly Aladdin.

Dublin Unified School District v. Student, (Cont’d.)

• An independent speech-language pathologist found: – Student scored in average range on most

standardized tests. – Student had difficulty in spontaneous

language and generalizing language skills to less structured settings.

Dublin Unified School District v. Student, (Cont’d.)

• Student’s developmental pediatrician determined she met five of the twelve DSM-IV criteria for autism and concluded student continued to have PDD-NOS. – Student demonstrated significant social deficits. – Repetitive use of language.– Overly intense and restricted preoccupation with

Disney movie Aladdin.– Insistence on matching colors of clothes and

eating utensils.

Inquiring Minds want to know….

• Would you take this case to hearing?• What are the strengths of the case?• What are the concerns about the case?

Dublin Unified School District v. Student, (Cont’d.)

• District filed for due process • ALJ held student was not eligible for

special education under the category of autistic-like behaviors.

• ALJ considered three criteria in making her decision: – Oral Language– Social Behavior– Self-Stimulatory, Ritualistic Behaviors

Dublin Unified School District v. Student, (Cont’d.)

• Oral Language– “There is ample evidence of Student's

appropriate oral communication.” – Student greets others, makes requests, asks

questions, verbally participates in class, described as “chatty.”

– Student uses idiosyncratic language, makes out-of-context statements, and makes grammar or syntax errors.

– But student is able to engage in appropriate conversations and tests in the average range.

Dublin Unified School District v. Student, (Cont’d.)

• Oral Language– ALJ held despite occasional difficulties

Student communicates appropriately using oral language.

– “Having some deficits in higher-level language skills does not constitute an inability to use oral language for appropriate communication.”

Dublin Unified School District v. Student, (Cont’d.)

• Social Behavior– ALJ describes student as having a

“friendly, social personality, and she frequently initiates social interactions.”

– No persuasive evidence of a history of extreme withdrawal.

– Thus, issue is whether student has history of relating to people inappropriately and continued impairment in social interaction.

Dublin Unified School District v. Student, (Cont’d.)

• Social Behavior– ALJ found that at school student functioned

academically and socially within the normal range for her age.

– Student’s experts argued she had poor social reciprocity, poor understanding of social norms, lack of joint attention, and rudimentary interactive play skills.

– ALJ noted student plays and interacts appropriately with peers, is concerned with others, and does not have any unusual social deficits.

Dublin Unified School District v. Student, (Cont’d.)

• Self-Stimulatory, Ritualistic Behaviors– Student’s experts argued she engaged in

nonfunctional, repetitive fantasy talk about Disney characters, particularly Aladdin. Student insisted on wearing matching clothes and her clothes match those of her mother and sister.

– ALJ found “extensive evidence” that student talked about a variety of topics.

Dublin Unified School District v. Student, (Cont’d.)

• Self-Stimulatory, Ritualistic Behaviors– ALJ found no evidence that student’s fantasy talk

excluded other behaviors. • Student participates in school.• Engages with different toys.• Sought out different types of play activities.

– ALJ held student’s desire to match clothing does not meet criterion for self-stimulatory, ritualistic behaviors.

• Not unusual for girls student’s age to want matching clothes.

• Behavior only occurred at home.

Dublin Unified School District v. Student, (Cont’d.)

• ALJ found district established that student was not eligible for special education under the category of autistic-like behaviors.

Practical Application

• Did anything surprise you in the Hearing decision?

• Are there any “take-aways” from the case that you can use?

Student v. La Mesa-Spring Valley School District, No. 2009050311 (OAH 2009)

• Parents enrolled five-year-old student at a certified NPS.

• NPS did not have a kindergarten. Student was placed in a first grade class of five students.

• Parents requested special education evaluation.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• Student Study Team (“SST”) met and found the following about student: – Smart, verbal at home, good language skills,

creative, artistic, performing at grade level in a first grade class.

– Difficulty transitioning, inflexible, difficulty expressing wants/needs, frustrated easily, often threw tantrums.

• SST referred student for special education evaluation. Parents requested autism assessment.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• District evaluation found no speech or language deficit and no need for OT services.

• Psycho-Educational evaluation found student displayed behaviors related to autism, but student was “nonspectrum.” Student’s behaviors were associated to Asperger’s Syndrome.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• Student’s autistic-like behavior included avoiding eye contact, withdrawal, remaining aloof, staring at hands or objects, acting stand-offish in groups, and tantrums when given directions.

• At first IEP meeting, District team members agreed with school psychologist and found student ineligible for special education as he did not meet categories for autistic-like behaviors.

• Parents did not consent to IEP.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• District conducted second evaluation and again concluded student did not qualify for special education at a subsequent IEP meeting.

• Parents disagreed and requested an IEE.

• District agreed to fund an IEE.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• In the IEE, clinical psychologist found student failed to greet others, had poor eye contact, was easily distracted, often played with his watch and pencils, constantly squirmed and was restless, chewed/mouthed on his shirt, and required frequent redirection to stay on task.

• Clinical psychologist diagnosed student with Asperger’s Disorder with significant attention issues and also Bipolar Mood Disorder.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• District staff observed student. Student was not distracted and remained on task in noisy classroom. Student worked independently, followed instructions, and participated in class.

• District staff did not see signs of perseveration. Student made constant eye contact and was not distracted in the classroom.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• After the IEE, an IEP meeting was conducted.

• The IEP team reviewed five criteria for eligibility under autistic-like behaviors and again found student ineligible.

• District team members noted student's disability did not have a significant impact on student academically or socially.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• Student was also not eligible under Other Health Impaired due to attention problems because there was no adverse effect on his educational performance.

• Parents refused to consent to the IEP team’s determination.

Inquiring Minds want to know….

• Would you take this case to hearing?• What are the strengths of the case?• What are the concerns?

Student v. La Mesa-Spring Valley School District (Cont’d.)

• Parents filed for due process.• ALJ held student was not eligible for

special education services. • ALJ noted student is possibly on autism

spectrum with Asperger’s Syndrome. • But student did not meet six criteria for

autistic-like behaviors. Also, Student did not require special instruction to be given FAPE.

Student v. La Mesa-Spring Valley School District (Cont’d.)

• ALJ emphasized student was not eligible for special instruction. – Student received excellent grades, even while in

a first grade classroom at five years old. – No evidence of tantrums or noise sensitivity at

school.– Stayed on task and followed directions.– Maintained eye contact with teacher and peers.– Not distracted by noise or unruly classmates.– Attempted social interactions with peers.

Practical Application

• Did anything surprise you in the Hearing decision?

• Are there any “take-aways” from the case that you can use?

Mr. & Mrs. I v. Main School Administrative District 55, 416 F.Supp.2d 147 (D. Maine 2006)• While attending district schools,

student performed well academically, but by fourth and fifth grade she began exhibiting signs of depression and had difficulty with peer relationships. – Very limited group of friends, mostly boys.

One female friend shared her interest in Japanese anime.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• In sixth grade, student tried to change her appearance and study habits to fit in.

• She began skipping school and parent noticed red cuts and scratches on her arms. Teacher noticed student was in bathroom for prolonged periods of time and suspected she was “carving into her arms” in the bathroom.

• Concerned with student’s behavior, teacher and parent proposed a contract with student to complete assignments.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• When signing contract was imminent, student stayed home from school and attempted suicide.

• As a result of her serious suicide attempt, student was evaluated and diagnosed with Asperger’s Syndrome and depressive disorder.

• While student was in the hospital, parents notified district that student would not return to school immediately.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• District offered ten hours of tutoring services per week. Parents accepted offer, but district failed to provide tutor.

• Parents informed district they were planning to enroll student in a private school.

• District held a Pupil Evaluation Team (“PET”) meeting.

• The PET acknowledged student’s diagnosis of Asperger’s Syndrome and Adjustment Disorder with Depressed Mood.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• The PET agreed student needed social skills and pragmatic language instruction.

• The PET concluded, however, that student did not qualify for special education services since there was no adverse impact on her academic progress.

• Instead, the PET offered a 504 plan and accommodations.

Inquiring Minds want to know….

• Would you take this case to hearing?• What are the strengths of the case?• What are the concerns?

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• Parents filed for due process and the hearing officer upheld district’s decision that student did not qualify for special education under the IDEA.

• Hearing officer characterized student’s Asperger’s Syndrome as a “mental health issue.” Thus, district was not obligated to provide services where there was no academic need.

• Parents appealed to district court.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• Meanwhile, at private school, student made progress academically but her social interactions continued to be impaired.

• Peer relationships centered around her interest in Japanese anime.

• She shunned peer contact outside school. • She spent “nearly all waking hours” on the

computer engaging in anime-related activities and only left to use the restroom.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• Student developed new inflexible behaviors: – Refused to go outside except to get into

or out of a vehicle. – Limited her diet to pizza, carrots, red

pepper, macaroni and cheese, and milk.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• The district court addressed two issues: – (1) Whether student’s condition adversely

affects her educational performance. – (2) Whether she needs special education

and services as a result. • Note: Maine broadly defines

“educational performance” to include nonacademic areas including daily life activities, mobility, and extracurricular activities.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• District judge held any adverse effect on educational performance, even slight, meets the definition.

• Judge acknowledged a mere diagnosis of Asperger’s Syndrome or Adjustment Disorder with Depressed Mood does not qualify child for special education under the IDEA.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• District court held student’s Asperger’s Syndrome adversely affects her educational performance – Student very bright, excelled in school,

and was nondisruptive in class. – Problems in school were as a result of her

Asperger’s Syndrome. These include: poor communication, self-injurious behavior during class time, and failure to adapt or accept others’ views.

Mr. & Mrs. I v. Main School Administrative District 55 (Cont’d.)

• Whether student “needs” special education as a result of her Asperger’s Syndrome was not determined by the hearing officer.

• District court held the PET, experts, district, and parents all initially believed student needed the identified services.

• Thus, student is eligible for special education services under the IDEA because her Asperger’s Syndrome adversely affected her educational performance.

Practical Application

• Did anything surprise you in the Hearing decision?

• Are there any “take-aways” from the case you can use?

Student v. Dublin Unified School District, No. 2007100454 (OAH 2008)

• Student was diagnosed with Nonverbal Learning Disability (“NLD”) and Attention Deficit Hyperactivity Disorder (“ADHD”).

• In third and fourth grade, student was found eligible for special education services under the other health impaired category due to ADHD.

• After making substantial progress, district exited student from special education.

Student v. Dublin Unified School District (Cont’d.)

• Student had difficulty transitioning to sixth grade. A 504 Plan meeting was held and a 504 Plan was established.

• 504 Plan addressed concerns regarding NLD and ADHD. The 504 team did not note any concerns about social or peer relationships.

• When student began seventh grade, parents informed district that he had been diagnosed with Pervasive Developmental Disorder, Asperger’s Type. Parents requested special education services.

Student v. Dublin Unified School District (Cont’d.)

• District and parents conducted a 504 Plan meeting pending the outcome of parents’ request for an IEP.

• Student was referred to the district’s psychologist and other accommodations were agreed upon.

Student v. Dublin Unified School District (Cont’d.)

• Psychological assessment – Student displayed anxiety during testing.– Blinked, made distressed faces, cleared his

throat, had difficulty maintaining eye contact.– Student reported he often forgot things, had

trouble paying attention, and hated school.– Overall, scores on assessments in average range,

with some deficits in comparative processing speed and visual attention.

Student v. Dublin Unified School District (Cont’d.)

• Academic achievement assessment – Student’s sixth grade GPA: 3.333.– Student made different facial gestures

when deep in thought.– Scored from average to superior ranges,

no deficits noted.

Student v. Dublin Unified School District (Cont’d.)

• IEP meeting conducted and found student was not eligible for special education under either SLD or autistic-like behaviors. – No significant discrepancy between his cognitive

ability and academic achievement.– Medical diagnosis of Asperger’s not

determinative because it did not address educational criteria.

– Asperger’s characteristics are not the equivalent of autistic-like behaviors.

Student v. Dublin Unified School District (Cont’d.)

• More specifically, the IEP team found:– Student was able to use oral language to

communicate appropriately with peers and teachers.

– No history of extreme withdrawal from infancy through early childhood.

– No record of extreme resistance to controls, of self-stimulating, ritualistic behaviors, nor evidence of obsession to maintain sameness.

– Mild deficits in processing speed and visual attention.

– History of inappropriate relations with his peers in early school years through third grade.

Student v. Dublin Unified School District (Cont’d.)

• Student completed seventh grade with the 504 Plan addressing his deficits.

• At the end of seventh grade, parents requested “reopening” student’s IEP assessments for the upcoming eighth grade year. – Student’s grades had declined.– Medical advice suggested student needed

a “more protective environment.”

Student v. Dublin Unified School District (Cont’d.)

• District responded by interviewing student’s teachers.

• Student’s teachers reported: – 504 Plan was being followed.– Student was not isolated or a loner, interacted

appropriately with peers, actively participated in class, and appropriately participated in group discussions.

– Student sometimes lost focus and needed redirection.

– Student had ongoing problems completing homework.

Student v. Dublin Unified School District (Cont’d.)

• District concluded no new or different information would obligate district to reassess student’s eligibility.

• Instead, a 504 Plan meeting was conducted.

Student v. Dublin Unified School District (Cont’d.)

– Preferred seating – Extra time to write by

hand– Making eye contact– Keeping student

focused– Assistance organizing

binders– Study buddy – Parental notification of

missing assignments

– Extra books for home use

– Homework hotline, website for math class

– Email status reports to parents

– Encouraging group work – Putting new

assignments in binder

A number of accommodations were agreed to:

Student v. Dublin Unified School District (Cont’d.)

• During eighth grade, student’s grades declined, which was attributable to student’s problems getting work in on time.

• Student was absent a significant number of days

• GPA: 2.5 (within average range)

Student v. Dublin Unified School District (Cont’d.)

• Student’s eighth grade teachers reported: – Student did well academically and socially. – Participated regularly in class. – Required some redirection to stay focused. – Smart, has advanced vocabulary. – Interacted appropriately with peers. – Student struggled getting homework done and

turned in on time. – Struggled keeping binders and notebooks

organized.

Student v. Dublin Unified School District (Cont’d.)

• Parents sought an independent evaluation of student.

• Independent psychologist diagnosed student with Asperger’s Disorder (mild to moderate impairment in social interaction), ADHD – predominately inattentive type, and indications of Tourette’s Disorder (motor/vocal tics, making “bug eyes”).

• Independent psychologist recommended student attend a private high school with a small, well-structured class environment.

Student v. Dublin Unified School District (Cont’d.)

• In May of student’s eighth grade year, another 504 Plan meeting was held.

• District agreed to conduct social/adaptive behavior assessments with the school psychologist and behaviorist to determine whether and what supports he might need in order to transition to high school.

Student v. Dublin Unified School District (Cont’d.)

• School psychologist observed student eating lunch alone, but then joined a group of boys and had reciprocal conversations.

• Student had skills to join a group and actively participate in sustained positive interactions with peers.

• Student’s formal test scores revealed autistic-like behaviors, but no such behaviors were observed in the school setting.

Student v. Dublin Unified School District (Cont’d.)

• In June prior to student entering ninth grade, IEP team met.

• IEP team reviewed all assessments, staff observations, and school reports.

• Consensus was, looking forward to high school, student was eligible for special education under autistic-like behavior.

• 504 Plan would not provide sufficient support in high school.

Student v. Dublin Unified School District (Cont’d.)

• IEP team was concerned about a new campus, student’s need to create new peer relationships, increased sophistication in relationships, increased academic workload, and need for more organizational supports.

• Student’s Asperger’s, ADHD, and slow processing needs required addressing student’s attention, organization, pragmatic language, and social skills.

Student v. Dublin Unified School District (Cont’d.)

• District offered special education and services. – Participate in general education for academic

subjects, PE, lunch, passing periods.– 55 minutes of RSP class once per day.– Behavior management services 55 minutes once

per month. – Social skills instruction for 30 minutes for 10

weeks. – Extended time on tests.

Student v. Dublin Unified School District (Cont’d.)

• District IEP offer (Cont’d.) – Preferential seating.– Resource assistance with classroom notes and

assignments. – Word processing access. – Double sets of books. – Homework expectations coordinated between

parent/student and resource teacher. – Asperger’s training by board certified behavior

analysts to all appropriate high school staff.

Inquiring Minds want to know….

• Would you take this case to hearing?• What are the strengths of the case?• What are the concerns?

Student v. Dublin Unified School District (Cont’d.)

• Parents placed student in private school and filed for due process.

• Student contended that the district had notice he was diagnosed with Asperger’s and should have been eligible for special education and related services under the category of autistic-like behaviors in middle school.

• Student further contended that the IEP offers were inappropriate and denied him FAPE.

Student v. Dublin Unified School District (Cont’d.)

• ALJ held district properly found student ineligible for special education in sixth grade.– Student performed at or above grade

level.– Organizational defects addressed by

accommodations in general education classroom.

– Student made educational progress.– 504 Plan was sufficient.

Student v. Dublin Unified School District (Cont’d.)

• ALJ held district did not deny student FAPE by failing to find him eligible for special education during seventh grade. – Student was engaged in academic and

social interactions with peers and teachers.

Student v. Dublin Unified School District (Cont’d.)

• ALJ found procedural violation of FAPE. District failed to make a clear written offer for social skills services at the IEP meeting. ALJ, however, held it was harmless error and did not constitute a denial of FAPE.

• ALJ held district’s IEP offer addressed student’s unique needs and provided special education and services in the least restrictive environment.

Student v. Dublin Unified School District (Cont’d.)

• ALJ held student was not entitled to compensation for any denials of FAPE.

• Further, ALJ held student was not entitled to reimbursement for tuition and transportation for private school.

Practical Application

• Did anything surprise you in the hearing decision?

• What are the strengths of the case?• What are the concerns?

Closing Points

• Finding a student has a disability is the first part of the analysis.

• IEP teams must analyze whether there is any adverse educational impact.

• Educational impact includes academic and social performance.

• It is possible for students to be exited from special education and related services.

• It is possible for a student who is previously found ineligible for special education to later meet eligibility requirements.

Closing Points

• Keep appropriate data on how the student is functioning.

• Look at social-emotional issues, as well as academic issues.

• If a student may no longer be eligible for special education, start the discussion with the parents early and often.

Thank you

Deborah U. EttingerLozano Smith

dettinger@lozanosmith.com

Sara JochamCapistrano Unified School District

SRJOCHAM@capousd.org

Autism and Eligibility