Marcy gutierrez

AUTISM AND THE LAW:
EMPOWER YOURSELF BY
KNOWING WHAT THE JUDGES
ARE SAYING

Agenda
1.

Autism Trends
a. California Statistics
b. Autism Cases Before OAH
2. Assessment
a. Appropriate Assessments
b. Case Law: What Judges are Saying
3. Eligibility
a. Eligibility Definition
3

Copyright © 2014 Lozano Smith

Agenda (cont.)
4.

Educational Intervention/Methodology
a. Overview
4. Private vs. Public Service Providers
5. Assistive Technology
6. SB 946

4


1. Autism Trends

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


5

Students with Autism in California

6


Number of OAH Cases 2008-2012

7


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.

8


2. Assessment Overview
a. Appropriate Assessments

9


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.

10


•
•
•
•
•
•

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
11


• 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).

12


• 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).

13


• 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.

14


Autism Assessments: A Tale of Two Cases
Berkeley Unified Sch. Dist. (CA SEA
2008) 108 LRP 34227.

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

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

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

– 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.


– Structured and unstructured
play
– Observations
– Parent interview
– Standardized tests

• RESULT: The assessment was
adequate because it was complete
and accurate.
15

3. Eligibility
a. Eligibility

16


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)

17


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).
18


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).
19


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).

20


Eligibility
• Is a medical diagnosis of autism:
– Sufficient for eligibility?
– Necessary for eligibility?
– Recommended for eligibility?
21


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.

22


Case Law: Eligibility
•
•
•
•

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

23


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.

24


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.

25


Behaviors Outside of School
• 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.

26


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

27


Eligibility: Autism or ED?
• 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.

28


4.

Educational Intervention/Methodology

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

29


The Methodology Debate
•
•
•
•
•
•
•
•
•
•

ABA
TEACCH
Discrete Trial Training
Relationship
Development
Intervention
Floor time
SCERTS
Social Stories
Visual Cues/Schedules
PECS
Others

30


“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).

31


Eclectic/Mixed Models
•
•
•
•

Specific program not based on peerreviewed research
Effectively tailored to unique needs
Supervised and administered by
qualified personnel
Program based on accepted principles
in field of autism education
K.S. v. Fremont Unified School District (9th Cir. 2011) 56 IDELR 190 (unpublished).

32


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.
33


Choosing the Methodology
• Must the district provide . . .
– the methodology requested by the parent?
– the “best” methodology?

34


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.

35


Case Law: Methodology
G.D. v. Torrance Unified School District
(C.D. Cal. 2012) 2012 WL 751014.
• Parents requested ABA schoolbased program and ABAtrained 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.
36


Case Law: Methodology
J.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

37


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.

38


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.

39


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

40


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.
41


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.


42

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)
43


I hope this presentation was informative.
• Any final questions or concerns?

44


Disclaimer:
These materials and all discussions of these materials are for instructional purposes only
and do not constitute legal advice. If you need legal advice, you should contact your
local counsel or an attorney at Lozano Smith. If you are interested in having other inservice
programs presented, please contact clientservices@lozanosmith.com or call
(559) 431-5600.
All rights reserved. No portion of this work may be copied, or sold or used for any
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solely for the internal purposes of such client.

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