marcy gutierrez

WELCOME TO ACSA

AUTISM AND THE LAW: EMPOWER YOURSELF BY

KNOWING WHAT THE JUDGES ARE SAYING

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Agenda1. Autism Trends

a. California Statisticsb. Autism Cases Before OAH

2. Assessmenta. Appropriate Assessmentsb. Case Law: What Judges are Saying

3. Eligibilitya. Eligibility Definitionb. Case Law: What Judges are Saying

Copyright © 2014 Lozano Smith

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Agenda (cont.)

4. Educational Intervention/Methodologya. Overviewb. Case Law: What Judges are Saying

5. Private vs. Public Service Providers6. Assistive Technology7. SB 946


5www.autismspeaks.org (CDC Study based on medical and school records)

1. Autism Trends


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Students with Autism in California


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Number of OAH Cases 2008-2012


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2013 OAH Cases

• Between January 1, 2013 and September 30, 2013, a total of 2,659 due process cases were filed with OAH, 892 of which were related to autism.


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2. Assessment Overview

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a. Appropriate Assessments b. Case Law: What Judges are Saying

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Appropriate Assessments

• A school district’s failure to conduct appropriate assessments or to assess in all areas of suspected disability may constitute a procedural or substantive denial of a FAPE.

Ed. Code, § 56320, subd. (f); Park v. Anaheim Union High School District, et al. (9th Cir. 2006) 464 F.3d 1025, 1031-1033.


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• Assess in all areas of suspected disability • Conduct appropriate observations• Be thorough and complete• Interview parents, teachers, providers • Consider private reports• Use a variety of tools


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Appropriate Assessments• Assess in all areas of suspected disability.20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); Ed. Code, § 56320, subd. (f).

• Use a variety of assessment tools and strategies to gather relevant information.

20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1).

• Do not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability.

20 U.S.C. § 1414(b)(2)(B); 34 C.F.R. § 300.304(b)(2); Ed. Code § 56320, subd. (e).


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• Sufficiently comprehensive to identify all of the child’s special education and related service needs, whether or not commonly linked to the disability category of the child.

34 C.F.R. § 300.304(c)(6).

• Sufficiently comprehensive and tailored to evaluate specific areas of educational need.

Ed. Code, § 56320, subd. (c).


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• Assessment materials must be valid and reliable for the purposes for which the assessments are used.

20 U.S.C. § 1414(b)(3)(A)(iii); Ed. Code, § 56320, subd. (b)(2).

• Must be administered by trained, knowledgeable and competent personnel, as determined by the LEA.

20 U.S.C. § 1414(b)(3)(iv); Ed. Code, §§ 56320, subd. (b)(3) & 56322.



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Autism Assessments: A Tale of Two CasesBerkeley Unified Sch. Dist. (CA SEA

2008) 108 LRP 34227.

• Medical diagnosis of autism at age 1½ • Displayed at least 2 nonexclusive factors for autistic-like• Assessment included:

– Records review– Parent interview– Observation of student for 1.5

hours– Standardized tests

• RESULT: The assessment was flawed because it failed to take into account all information, and incorrectly applied the law.

Vista Unified Sch. Dist. (CA SEA 2013)113 LRP 8884.

• Parents suspected autism at age 4• Private assessment (ADOS): not eligible• District transdisciplinary assessment:

– Structured and unstructured play

– Observations– Parent interview– Standardized tests

• RESULT: The assessment was adequate because it was complete and accurate.


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3. Eligibility

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a. Eligibilityb. Case Law: What Judges are Saying

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Eligibility: The Big Picture

• Federal & State Law Eligibility Criteria– IDEA: Autism– California: Autistic-like

• TIP: Federal & State Law Differ– Autism: 34 C.F.R. 300.8(c)– Autistic-like: 5 C.C.R. 3030(g)


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Definition: Federal Law (IDEA)

• Autism is a developmental disability that: – (1) significantly affects verbal and nonverbal

communication and social interaction, – (2) is generally evident before age 3, and – (3) adversely affects a child's educational performance.

• Other associated characteristics:– engagement in repetitive activities and stereotyped

movements, – resistance to environmental changes or changes in daily

routines, and – unusual responses to sensory experiences.

34 C.F.R. § 300.8 (c)(1)(i).


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Definition: Federal Law (IDEA)• Exception:

– A student does not qualify as a child with autism if his/her educational performance is adversely affected primarily because the child has an emotional disturbance.

• It is more difficult to be eligible under the category of autism if identified after age 3.– However, a child who manifests these

characteristics after age 3 could be identified as having autism if he or she meets the other eligibility criteria.

34 C.F.R. § 300.8 (c)(1)(ii), (iii).


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Definition: California Law• Autistic-like means any combination of:

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.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).


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Eligibility

• Is a medical diagnosis of autism:

– Sufficient for eligibility?

– Necessary for eligibility?

– Recommended for eligibility?

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Eligibility Category

• Does the eligibility category matter?– What matters is that the IEP offers a FAPE.– Individualized education program.– Focus on needs, not eligibility category, as

what should drive the IEP process.

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Case Law: Eligibility

• Educational Performance• Behaviors At School• Behaviors Outside of School• Compare Two Cases


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Educational Performance

• Students must not only show they exhibit the behaviors of autism, but also that the behaviors adversely effect educational performance.

Cal. Code Regs., tit. 5, § 3030, subd. (g); See also Berkeley Unified Sch. Dist. (SEA CA 2008) 5 ECLPR 141.


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Behaviors At School

• Not every child who has difficulties with communication, social interaction or change will be eligible for IDEA services as a child with autism.

• Newark Unified Sch. Dist. (CA SEA) 48 IDELR 171. – The child’s behaviors, such as throwing tantrums, refusing

to listen to instructions, and speaking frequently about a particular subject are a normal part of child development.

– RESULT: Child was not eligible under the category of autistic-like.


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• A student does not qualify as a child with autism under the IDEA simply because he or she exhibits some traits of autism outside of the educational setting.

• La Mesa-Spring Valley School District (SEA CA 2009) 109 LRP 54643. – Child experienced tantrums, social difficulties and

sensitivity to noise outside of school. – In school, he followed directions, made appropriate eye

contact with his teacher and classmates, stayed on task, and attempted to interact socially with classmates.

– RESULT: ALJ agreed that student was not eligible.

Behaviors Outside of School


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Eligibility: A Tale of Two Cases Paso Robles Joint Unified School District

(CA SEA 2012) 112 LRP 33905.

• Student diagnosed with PDD-NOS, parents reported lack of compliance• Found eligible under SLI• Offered speech-language services and language-based, social skills program • Conducted more assessments; changed eligibility to autism• RESULT: no denial of FAPE

Orange Unified School District v. C.K. (C.D. Cal. 2012) 59 IDELR 74.

• Parents reported toileting issues, lack of eye contact, limited vocabulary• Found eligible under SLI• District offered speech-language services only• Conducted more assessments; changed eligibility to autism• RESULT: denial of FAPE

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• Student eligible under autistic-like.• Severely autistic, extremely aggressive, self-injurious

behaviors, anxiety, depression, and assaultive behaviors.

• Private psychologist found ED and argued for mental health services.

• RESULT: District did not deny FAPE by not listing ED as an eligibility category.

Baldwin Park Unified Sch. Dist. (CA SEA 2012) 59 IDELR 177.

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Eligibility: Autism or ED?

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4. Educational Intervention/Methodology

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a. Methodology Debateb. “Based on Peer Reviewed Research”c. Case Law: What Judges are Saying

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The Methodology Debate • ABA• TEACCH• Discrete Trial Training • Relationship

Development Intervention

• Floor time• SCERTS• Social Stories• Visual Cues/Schedules• PECS• Others

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“Based on Peer Reviewed Research”

• Must include a statement of special education and related services and supplementary aids and services, based on peer reviewed research to the extent practicable, to be provided to the child.

34 C.F.R. § 300.320(a)(4).


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Eclectic/Mixed Models

• Specific program not based on peer-reviewed research

• Effectively tailored to unique needs• Supervised and administered by

qualified personnel• Program based on accepted principles

in field of autism educationK.S. v. Fremont Unified School District (9th Cir. 2011) 56 IDELR 190 (unpublished).

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Methodology on the IEP?

• IDEA does not require that a specific instructional methodology be specified in the IEP.

• But should the IEP team identify the methodology on the IEP?

• It is IEP team’s decision.• Note: If it’s on the IEP, it must be provided.• Consider: Flexibility and teacher discretion.

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Choosing the Methodology

• Must the district provide . . .

– the methodology requested by the parent?

– the “best” methodology?

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Choosing a Methodology

• What do judges consider when evaluating whether a district is appropriately educating students with autism?– Whether the program is reasonably calculated to

provide a child with an educational benefit, rather than focusing on selection of a particular educational methodology, an area where districts are accorded broad discretion.


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Case Law: Methodology

• Parents requested ABA school-based program and ABA-trained 1:1 aide.

• District’s program was based partly on ABA, DTT, and Social Skills Training.

• RESULT: The behavioral services offered by the district were appropriate.

G.D. v. Torrance Unified School District (C.D. Cal. 2012) 2012 WL 751014.

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Case Law: MethodologyJ.A. v. Rocklin Unified School District

(9th Cir. 2009) 319 Fed.Appx. 692 (unpublished).

• District’s program provided an eclectic approach to implement the IEP

• Parents wanted ABA program• RESULT: Eclectic program was appropriate and did not

result in a denial of FAPE


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5. Private vs. Public Service Providers • NPA aide vs. District aide

– Student originally had 1:1 NPA aide – IEP offered a plan to transition the student from

NPA aide to District aide – Parents refused District aide– RESULT: District’s offer of aide services was

appropriate

Carlsbad Unified School District (CA SEA 2012) 59 IDELR 87.

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Changes from NPA to NPA

• NPA vs. NPA– Student received behavioral intervention services

from a NPA– District and NPA terminated their agreement and

the District hired another NPA to provide the same services

– RESULT: Changing the NPA providing the services did not deny Student a FAPE

Z.F. v. Ripon Unified Sch. Dist. (E.D. Cal. 2013) 60 IDELR 137.


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6. Assistive Technology

• Device– Item used to increase,

maintain or improve a child’s functional capabilities

• Services – Directly assists a child

with a disability in the selection, acquisition, or use of an AT device

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Assistive Technology for Students with Autism

• Student initially used no communications assistance

• In NPS placement, Student used PECS• District did not conduct AT evaluation• IEP team determined Student did not

need AT• RESULT: No denial of FAPE

Baldwin Park Unified School District(CA SEA 2012) 112 LRP 21708.

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Assistive Technology for Students with Autism

• 9-year-old student used iPad to attract social attention

• IEP included use of iPad to facilitate social interaction, but not as AAC device

• RESULT: Student did not require an iPad to receive a FAPE

Carlsbad Unified School District (CA SEA 2012) 59 IDELR 87.

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SB 946: Insurance for Autism Therapy

• Amended Health & Safety Code• Requires insurance companies to

provide health insurance coverage for behavioral therapy for children with autism

• Physician, surgeon or psychologist may prescribe “behavioral health treatment”

• Does not affect or reduce any obligation to provide services under an IEP or ISP

– Health & Safety Code, § 1374.73, subd. (a)(4)


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• Any final questions or concerns?

I hope this presentation was informative.


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marcy gutierrez

Health & Medicine

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