WELCOME TO ACSA
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. C...
Agenda (cont.)
4.

Educational Intervention/Methodology
a. Overview
b. Case Law: What Judges are Saying
4. Private vs. Pub...
1. Autism Trends

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

Copyright © 2014 Lozano Smith

5
Students with Autism in California

6

Copyright © 2014 Lozano Smith
Number of OAH Cases 2008-2012

7

Copyright © 2014 Lozano Smith
2013 OAH Cases
• Between January 1, 2013 and
September 30, 2013, a total of 2,659
due process cases were filed with OAH,
8...
2. Assessment Overview
a. Appropriate Assessments
b. Case Law: What Judges are Saying

9

Copyright © 2014 Lozano Smith
Appropriate Assessments
• A school district’s failure to conduct appropriate
assessments or to assess in all areas of susp...
Appropriate Assessments
•
•
•
•
•
•

Assess in all areas of suspected disability
Conduct appropriate observations
Be thoro...
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...
Appropriate Assessments
• Sufficiently comprehensive to identify all of the
child’s special education and related service
...
Appropriate Assessments
• Assessment materials must be valid and reliable
for the purposes for which the assessments are
u...
Autism Assessments: A Tale of Two Cases
Berkeley Unified Sch. Dist. (CA SEA
2008) 108 LRP 34227.

Vista Unified Sch. Dist....
3. Eligibility
a. Eligibility
b. Case Law: What Judges are Saying

16

Copyright © 2014 Lozano Smith
Eligibility: The Big Picture
• Federal & State Law Eligibility Criteria
– IDEA: Autism
– California: Autistic-like

• TIP:...
Definition: Federal Law (IDEA)
• Autism is a developmental disability that:
– (1) significantly affects verbal and nonverb...
Definition: Federal Law (IDEA)
• Exception:
– A student does not qualify as a child with autism if
his/her educational per...
Definition: California Law
•

Autistic-like means any combination of:

1. An inability to use oral language for appropriat...
Eligibility
• Is a medical diagnosis of autism:
– Sufficient for eligibility?
– Necessary for eligibility?
– Recommended f...
Eligibility Category
• Does the eligibility category matter?
– What matters is that the IEP offers a FAPE.
– Individualize...
Case Law: Eligibility
•
•
•
•

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

...
Educational Performance
• Students must not only show they exhibit the
behaviors of autism, but also that the behaviors
ad...
Behaviors At School
• Not every child who has difficulties with
communication, social interaction or change will
be eligib...
Behaviors Outside of School
• A student does not qualify as a child with autism under
the IDEA simply because he or she ex...
Eligibility: A Tale of Two Cases
Paso Robles Joint Unified School District
(CA SEA 2012) 112 LRP 33905.

• Student diagnos...
Eligibility: Autism or ED?
• Student eligible under autistic-like.
• Severely autistic, extremely aggressive, self-injurio...
4.

Educational Intervention/Methodology

a. Methodology Debate
b. “Based on Peer Reviewed Research”
c. Case Law: What Jud...
The Methodology Debate
•
•
•
•
•
•
•
•
•
•

ABA
TEACCH
Discrete Trial Training
Relationship
Development
Intervention
Floor...
“Based on Peer Reviewed Research”
• Must include a statement of special
education and related services and
supplementary a...
Eclectic/Mixed Models
•
•
•
•

Specific program not based on peerreviewed research
Effectively tailored to unique needs
Su...
Methodology on the IEP?
• IDEA does not require that a specific
instructional methodology be specified
in the IEP.
• But s...
Choosing the Methodology
• Must the district provide . . .
– the methodology requested by the parent?
– the “best” methodo...
Choosing a Methodology
• What do judges consider when evaluating
whether a district is appropriately educating
students wi...
Case Law: Methodology
G.D. v. Torrance Unified School District
(C.D. Cal. 2012) 2012 WL 751014.
• Parents requested ABA sc...
Case Law: Methodology
J.A. v. Rocklin Unified School District
(9th Cir. 2009) 319 Fed.Appx. 692 (unpublished).
• District’...
5. Private vs. Public Service Providers
• NPA aide vs. District aide
– Student originally had 1:1 NPA aide
– IEP offered a...
Changes from NPA to NPA
• NPA vs. NPA
– Student received behavioral intervention services
from a NPA
– District and NPA te...
6. Assistive Technology
• Device
– Item used to increase,
maintain or improve a
child’s functional
capabilities

• Service...
Assistive Technology for Students with Autism
• Student initially used no communications
assistance
• In NPS placement, St...
Assistive Technology for Students with Autism
• 9-year-old student used
iPad to attract social
attention
• IEP included us...
SB 946: Insurance for Autism Therapy
• Amended Health & Safety Code
• Requires insurance companies to
provide health insur...
I hope this presentation was informative.
• Any final questions or concerns?

44

Copyright © 2014 Lozano Smith
Disclaimer:
These materials and all discussions of these materials are for instructional purposes only
and do not constitu...
Thank you!
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Marcy gutierrez

  1. 1. WELCOME TO ACSA
  2. 2. AUTISM AND THE LAW: EMPOWER YOURSELF BY KNOWING WHAT THE JUDGES ARE SAYING
  3. 3. 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 b. Case Law: What Judges are Saying 3 Copyright © 2014 Lozano Smith
  4. 4. Agenda (cont.) 4. Educational Intervention/Methodology a. Overview b. Case Law: What Judges are Saying 4. Private vs. Public Service Providers 5. Assistive Technology 6. SB 946 4 Copyright © 2014 Lozano Smith
  5. 5. 1. Autism Trends www.autismspeaks.org (CDC Study based on medical and school records) Copyright © 2014 Lozano Smith 5
  6. 6. Students with Autism in California 6 Copyright © 2014 Lozano Smith
  7. 7. Number of OAH Cases 2008-2012 7 Copyright © 2014 Lozano Smith
  8. 8. 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 Copyright © 2014 Lozano Smith
  9. 9. 2. Assessment Overview a. Appropriate Assessments b. Case Law: What Judges are Saying 9 Copyright © 2014 Lozano Smith
  10. 10. 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 Copyright © 2014 Lozano Smith
  11. 11. Appropriate Assessments • • • • • • 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 Copyright © 2014 Lozano Smith
  12. 12. 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). 12 Copyright © 2014 Lozano Smith
  13. 13. Appropriate Assessments • 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 Copyright © 2014 Lozano Smith
  14. 14. Appropriate Assessments • 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 Copyright © 2014 Lozano Smith
  15. 15. 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. Copyright © 2014 Lozano Smith – Structured and unstructured play – Observations – Parent interview – Standardized tests • RESULT: The assessment was adequate because it was complete and accurate. 15
  16. 16. 3. Eligibility a. Eligibility b. Case Law: What Judges are Saying 16 Copyright © 2014 Lozano Smith
  17. 17. 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 Copyright © 2014 Lozano Smith
  18. 18. 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 Copyright © 2014 Lozano Smith
  19. 19. 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 Copyright © 2014 Lozano Smith
  20. 20. 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 Copyright © 2014 Lozano Smith
  21. 21. Eligibility • Is a medical diagnosis of autism: – Sufficient for eligibility? – Necessary for eligibility? – Recommended for eligibility? 21 Copyright © 2014 Lozano Smith
  22. 22. 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 Copyright © 2014 Lozano Smith
  23. 23. Case Law: Eligibility • • • • Educational Performance Behaviors At School Behaviors Outside of School Compare Two Cases 23 Copyright © 2014 Lozano Smith
  24. 24. 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 Copyright © 2014 Lozano Smith
  25. 25. 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 Copyright © 2014 Lozano Smith
  26. 26. 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 Copyright © 2014 Lozano Smith
  27. 27. 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 Copyright © 2014 Lozano Smith
  28. 28. 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 Copyright © 2014 Lozano Smith
  29. 29. 4. Educational Intervention/Methodology a. Methodology Debate b. “Based on Peer Reviewed Research” c. Case Law: What Judges are Saying 29 Copyright © 2014 Lozano Smith
  30. 30. The Methodology Debate • • • • • • • • • • ABA TEACCH Discrete Trial Training Relationship Development Intervention Floor time SCERTS Social Stories Visual Cues/Schedules PECS Others 30 Copyright © 2014 Lozano Smith
  31. 31. “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 Copyright © 2014 Lozano Smith
  32. 32. 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 Copyright © 2014 Lozano Smith
  33. 33. 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 Copyright © 2014 Lozano Smith
  34. 34. Choosing the Methodology • Must the district provide . . . – the methodology requested by the parent? – the “best” methodology? 34 Copyright © 2014 Lozano Smith
  35. 35. 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 Copyright © 2014 Lozano Smith
  36. 36. 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 Copyright © 2014 Lozano Smith
  37. 37. 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 Copyright © 2014 Lozano Smith
  38. 38. 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 Copyright © 2014 Lozano Smith
  39. 39. 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 Copyright © 2014 Lozano Smith
  40. 40. 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 Copyright © 2014 Lozano Smith
  41. 41. 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 Copyright © 2014 Lozano Smith
  42. 42. 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. Copyright © 2014 Lozano Smith 42
  43. 43. 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 Copyright © 2014 Lozano Smith
  44. 44. I hope this presentation was informative. • Any final questions or concerns? 44 Copyright © 2014 Lozano Smith
  45. 45. 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. Copyright © 2014 Lozano Smith All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client.
  46. 46. Thank you!
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