All Things Considered. Autism Eligibility Revisited

Transcription

1 All Things Considered Autism Eligibility Revisited 1

2 What We ll Consider... Overview of Legal Standards and Framework for Eligibility Recognizing and Assessing Autism: Child Find, Need for Assessment and Appropriate Assessment Procedures Recent Cases Focusing on Autism Eligibility Case Study: Tustin USD Case Study: Los Angeles USD Case Study: Irvine USD Case Study: Hacienda La Puente USD 2

3 Overview of Legal Standards and Framework for Eligibility 3

4 Introduction When California s special education regulations were amended in 2014 to conform to IDEA, previous regulatory definition of autism was significantly revised Before examining the new definition, let s recap eligibility requirements... 4

5 Definition of Eligible Student To be eligible under IDEA and California law, student must: 1. Meet definition of at least one of 13 identified disabilities; and 2. Require special education and related services as a result of such disability (34 C.F.R ; Ed. Code, 56026) 5

6 The 13 Eligibility Categories 1. Autism 2. Deaf-Blindness 3. Deafness 4. Emotional Disturbance 5. Hearing Impairment 6. Intellectual Disability 7. Multiple Disabilities 8. Orthopedic Impairment 9. Other Health Impairment 10. Specific Learning Disability 11. Speech or Language Impairment 12. Traumatic Brain Injury 13. Visual Impairment, including blindness (34 C.F.R ; Cal. Code Regs., tit. 5, 3030) 6

7 Definition of Autism (prior to 7/1/14) Autistic-Like Behaviors Any combination of: Inability to use oral language History of extreme withdrawal Obsession to maintain sameness Extreme preoccupation/inappropriate use of objects Extreme resistance to controls Peculiar motoric mannerisms/motility patterns Self-stimulating, ritualistic behaviors (Cal Code Regs., tit. 5, 3030, subd. (g) (superseded)) 7

8 Definition of Autism: IDEA and New California Regulations (after 7/1/14) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction adversely affecting a child s educational performance Does it need to be all three? Guidance gleaned from OAH decisions indicate that yes, it does What about adverse effect on educational performance? Neither term is defined by law Court and ALJs interpret on case-by-case basis (34 C.F.R (c); Cal Code Regs., tit. 5, 3030, subd. (b)(1)) 8

9 Definition of Autism: IDEA and New California Regulations (after 7/1/14) Generally evident before age 3... (but)... a child who manifests the characteristics of autism after age 3 could be identified as having autism if other criteria are satisfied For example, if behaviors are just starting to manifest in eighth grade, then it could be due to autism, but it could be due to other factors too (34 C.F.R (c); Cal Code Regs., tit. 5, 3030, subd. (b)(1)) 9

10 Definition of Autism: IDEA and New California Regulations (after 7/1/14) 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 Serve as examples, not primary definition (34 C.F.R (c); Cal Code Regs., tit. 5, 3030, subd. (b)(1)) 10

11 Definition of Autism: IDEA and New California Regulations (after 7/1/14) A student does not qualify as a child with autism if his educational performance is adversely affected primarily because the child has an emotional disturbance But... student can have a secondary eligibility of ED (with a primary of autism) (34 C.F.R (c); Cal Code Regs., tit. 5, 3030, subd. (b)(1)) 11

12 Need for Special Education Don t forget! Even if it is established that student meets autism definition, second step in determining eligibility is that student must require special education and related services as a result of his or her autism Without such need, student cannot be found eligible 12

13 DSM-5 and Autism Diagnostic and Statistical Manual of Mental Disorders ( DSM-5 ) Released May 2013 Five previous categories of autism collapsed into singular diagnosis of autism spectrum disorder ( ASD ) Degree rated Severe Moderate Mild 13

14 DSM-5 and Autism Relevancy to Special Education Eligibility Special education standards control DSM criteria can be considered but do not trump legal eligibility rules Historically DSM not accorded significant role in court decisions on eligibility Will this change with new DSM-5? Has not been the case so far 14

15 Recognizing and Assessing Autism: Child Find, Need for Assessment and Appropriate Assessment Procedures 15

16 Recognizing Autism Particularly given nature of autism, often there is disconnect between concerns expressed by parents about child s behavior and how district interprets those concerns in school setting Nonetheless, law clearly puts burden on districts to recognize disabilities for which child may need to be assessed 16

17 Recognizing Autism Identify, locate and evaluate Threshold for suspicion is relatively low Inquiry is whether student should be referred for assessment not whether he or she 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) 17

18 Remember... Assessment process is: Collection of information Variety of sources Compilation of that information Analysis of that information Conclusions based on that analysis Eligibility, strengths, academic and functional levels, needs Documented into IEP 18

19 Assessment Procedures Districts have obligation to conduct initial assessment when it is suspected that student has autism and needs special education and related services as a result Parents may ask for an assessment at any time Assessments for autism eligibility, like all other assessments, must be conducted by individuals who are both knowledgeable of the student's disability and competent to perform the assessment, as determined by the school district, county office, or special education local plan area (Ed. Code, 56320, subd. (g), and ) 19

20 Assessment Process What testing instruments do we use? Take into consideration Area of suspected disability Previous assessment tools administered Variety of measures/no single measure Technically sound instruments that assess relative contribution of cognitive, behavioral, physical, and developmental factors (34 C.F.R (b)(3)) 20

21 Recent Cases Focusing on Autism Eligibility 21

22 Case Study #1: Tustin USD (OAH 2016) Facts Student diagnosed with autism at age 2 Assessed during preschool and found eligible Attended SDC programs for preschool and kindergarten Repeated kindergarten in gen ed program District conducted triennial assessment in September of Student s third-grade year 22

23 Case Study #1: Tustin USD (OAH 2016) Facts (cont d) Assessment team determined Student no longer met eligibility criteria for autism Weaknesses in social skills and sensory processing did not appear to be impacting his educational performance or socialemotional functioning Student demonstrated advanced skills in academics and play abilities; desired to be social and initiated interaction with peers Team recommended gen ed strategies and accommodations and also recommended that Student be exited from special ed Parents IEE indicated autism, but did not apply legal criteria 23

24 Case Study #1: Tustin USD (OAH 2016) Issues at Due Process: Parents challenged exiting decision Believed autism and autistic-like behaviors were the same thing Believed nothing has changed with Student ; he still has autism, and therefore, he should still be eligible for special education services as a child with autism District contended Student did not meet legal definition of autism because deficits did not adversely affect educational performance 24

25 Case Study #1: Tustin USD (OAH 2016) Decision: For District ALJ: It is clear Student remains a child with autism under a medical diagnosis of autism. Autism does not simply disappear; however, the intensity or impact of a child's deficits may change. Further, autism is a spectrum disorder, indicating a range of disability, some of which allow a child to appropriately function without special education. As a result, a medical diagnosis alone is not sufficient to support a finding of eligibility for special education. 25

26 Case Study #1: Tustin USD (OAH 2016) Decision (cont d) Student s areas of weakness and deficits could be monitored in gen ed setting Student performed at or above grade level in all subjects Occasional difficulties with social participation, but could resolve peer conflict without adult interventions Even Parents IEE report observed Student engaging in games with peers during recess and successfully transitioning back to classroom (Tustin Unified School Dist. v. Student (OAH 2016) Case No ) 26

27 Case Study #1: Tustin USD (OAH 2016) Compliance Key Case illustrates common misconception that medical diagnosis of autism or assessment concluding that student exhibits various autism characteristics automatically makes student eligible But to warrant eligibility finding, assessment must show that impairment not only adversely affects student s education, but also that degree of impairment is such that student needs special education and related services (Ed. Code, 56026; Cal. Code Regs., tit. 5, 3030, subd. (a)) 27

28 Case Study #2: Los Angeles USD (OAH 2016) Facts Student originally eligible for special education under category of developmental delay As Student aged out of developmental delay eligibility, District conducted triennial assessment, which included psychoeducational evaluation Suspected disabilities addressed in assessment were autism and SLD 28

29 Case Study #2: Los Angeles USD (OAH 2016) Facts (cont d) Assessment included observations, standardized testing and interviews with teachers and Parents Results indicated no indication of autism (or SLD) Student was able to access gen ed curriculum without supports, used verbal and non-verbal communication for social contact and did not engage in unusual behaviors Parents reported Student was different person at home Chose to play alone, was nonverbal unless spoken to, was unduly fascinated by certain things (hair, clouds), cried for hours and was not independent 29

30 Case Study #2: Los Angeles USD (OAH 2016) Issues at Due Process: Parents disagreed with decision that Student was not eligible and asked for IEE District defended appropriateness of psychoeducational assessment and asked ALJ to authorize its decision to exit Student from special education 30

31 Case Study #2: Los Angeles USD (OAH 2016) Decision: For District ALJ found District s psychoeducational assessment met all legal requirements and Parents were not entitled to an IEE at public expense District also properly determined that Student did not meet eligibility criteria for autism or SLD Student did not, in classroom setting, exhibit any behaviors associated with autism School psychologist, Student s teacher and resource specialist did not observe any significant behavioral issues Student was able to perform at grade level and teacher had no concerns about academics 31

32 Case Study #2: Los Angeles USD (OAH 2016) Decision (cont d) To the extent that Student exhibited some indicia of autism or [SLD] in the home setting, it was not enough to affect his educational performance Although Parents were very concerned regarding disparity between Student s behavior at school and home, behaviors that most worried Parents did not manifest in school setting (Los Angeles Unified School Dist. v. Student (OAH 2016) Case No ) 32

33 Case Study #2: Los Angeles USD (OAH 2016) Compliance Key As this case shows, a student does not qualify as eligible student with a disability merely because he or she exhibits emotional or behavioral problems associated with autism outside of school Only when student s emotional or behavioral problems resulting from autism interfere with his/her educational performance will he or she be eligible for special education and related services 33

34 Practice Pointers Do not forget to consider behavior problems and peer interaction when determining if disability adversely affects educational performance If social or behavior difficulties occurring outside of school begin to negatively impact classroom performance, do not delay starting assessment process if there is knowledge of or reason to suspect disability Needs can change frequently closely monitor effectiveness of accommodations 34

35 Case Study #3: Irvine USD (OAH 2016) Facts District assessed Student at age 3, concluding he did not meet eligibility criteria for autism because classroom performance/activities were not being adversely affected Parents expressed concerned about Student s social skills deficits Student rarely interacted with other children, required adult prompting, had limited coordination and required adult assistance to communicate 35

36 Case Study #3: Irvine USD (OAH 2016) Facts (cont d) Parents requested IEP team to gather more information from Student s private therapists and to observe Student in his early intervention class Team complied with request, but did not revise determination that Student was not eligible Parents obtained psychoeducational and speech/language IEEs IEE report indicated District s assessment ignored red flags in Parents responses about Student s behavior and ignored collateral information gathered from other sources 36

37 Case Study #3: Irvine USD (OAH 2016) Issues at Due Process: Parents contended that District denied Student FAPE by failing to find him eligible for special education and related services under category of autism District asserted Student was not eligible because assessments indicated that Student did not require special education and related services in order to access his education 37

38 Case Study #3: Irvine USD (OAH 2016) Decision: For Parents District denied Student FAPE by failing to find him eligible under category of autism District IEP team members gave less weight to the information collected from the people who worked with Student extensively and knew him well, than to the observations of District staff... and to the results of standardized tests IEP team discounted Mother s observations of Student, even though three of the District s assessors... testified Mother is an accurate historian of Student s behaviors 38

39 Case Study #3: Irvine USD (OAH 2016) Decision (cont d) IEP team did not appropriately consider IEE report, which concluded that even though Student s language skills tested in the average range, he was unable to apply those skills functionally in social situations ALJ: Evidence demonstrated that Student s verbal communication, nonverbal communication and social interaction skills were all impaired to significant degree District failed to recognize Student will not progress on his delayed social skills unless he continues to have interventions provided through special education (Student v. Irvine Unified School Dist. (OAH 2016) Case No ) 39

40 Case Study #3: Irvine USD (OAH 2016) Compliance Key This case illustrates importance of considering all sources of information when making autism eligibility determinations Over-relying on standardized test scores and unduly discounting information collected from individuals such as parents and private therapists who often are in best position to report on student s behaviors can lead to finding that assessment was flawed 40

41 Case Study #4: Hacienda La Puente USD (OAH 2015) Facts Student diagnosed with Asperger syndrome during first grade District assessed Student in second grade, finding he was not eligible for special education Parent obtained private diagnosis of autism and ADHD when Student was in third grade District conducted another assessment, again finding Student was not eligible 41

42 Case Study #4: Hacienda La Puente USD (OAH 2015) Facts (cont d) District s third-grade assessment: School psychologist reported that Student did not have any deficits in socialization or pragmatic communication and had no characteristics consistent with autism District s SLP observed Student over nine different days in class and on the playground, reporting he was fully engaged and initiated conversations Student also did not require OT or PT Student s responses on standardized tests produced score that fell within average range for boys of his age 42

43 Case Study #4: Hacienda La Puente USD (OAH 2015) Issues at Due Process: Parents disagreed with IEP team s decisions that Student was not eligible District asserted that it had twice comprehensively evaluated Student for special education, utilizing numerous assessments and multiple observations by qualified assessors 43

44 Case Study #4: Hacienda La Puente USD (OAH 2015) Decision: For District Both of District s assessments were legally sufficient Parents expert witness criticized SLP s assessment as not being comprehensive ALJ disagreed: SLP meticulously documented observations of Student during informal exchanges, formal testing, the classroom, at lunch, and on the playground, over nine different days Student was observed using higher language skills and concepts, and he maintained appropriate eye contact Unlike SLP s assessment, IEE obtained by Parents related only to Student s socialization deficits 44

45 Case Study #4: Hacienda La Puente USD (OAH 2015) Decision (cont d) District appropriately considered Parent s IEE, but found it unpersuasive Independent assessor never observed Student with other children or at school Characteristics of autism described by Parent (engagement in repetitive activities and unusual responses to sensory experiences, including perseveration, stuttering and mumbling) did not occur within the educational environment (Student v. Hacienda La Puente Unified School Dist. (OAH 2015) Case No ) 45

46 Case Study #4: Hacienda La Puente USD (OAH 2016) Compliance Key ALJ s opinion indicates that, in order to be eligible under autism, student needs to have developmental disability that significantly affects all three areas listed in definition verbal communication, nonverbal communication and social interaction not just one of those areas Therefore, if there is question or concern about communication, speech and language assessment likely will be key component of autism eligibility determination 46

47 Practice Pointers Know all areas that need to be assessed in order to make informed determination Review all existing data, including developmental history, information from parents and evaluations from other agencies Assign assessors as soon as possible so that they have sufficient opportunity to test, observe, review results and draft the report 47

48 Take Aways... Just as there is no category for ED-like or OHI-like, eligibility category is autism, and not autistic-like Despite this change in terminology, districts are still not diagnosing a student with autism they are determining whether student meets eligibility criteria And even if such definition is met, in order to find the student eligible, IEP team must conclude that student requires special education and related services 48

49 Take Aways... Understanding complex autism eligibility requirements is challenging But equally as important is developing collaborative relationship with parents that continues throughout the eligibility determination process and beyond Never lose focus on developing and fostering culture that places priority on students and their needs! 49

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51 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. 51

52 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. 52