This document discusses legal standards and emerging issues related to eligibility decisions for students on the autism spectrum. It provides an overview of key topics such as the definition of autism under IDEA and state law, appropriate assessment procedures, determining if criteria for autism are met, and whether a student requires special education. It examines case examples related to each topic and offers practice pointers for determining eligibility.

1. 1
Special Education
in the Modern Age
Eligibility Decisions for
Students on the Autism
Spectrum

2. 2
Overview
 Legal Standards for ASD Eligibility
 Emerging and Contentious Issues
 The New DSM-5
 Recognizing “Autistic-Like Behaviors”
 Appropriate Assessment Procedures
 Meeting Criteria
 Determining Need for Special Education
 Appropriate Services vs. Eligibility Classification

3. 3
A Little History . . .
 Term “autism” first used in early 1900s
 Associated with schizophrenia
 Early causation theory: “Cold mothers”
 1970s: “Treated” with medication (LSD)
 1990s: Behavior therapy

4. 4
Legal Definition of Autism
 IDEA
 Developmental disability significantly affecting
verbal and nonverbal communication and social
interaction that adversely affects educational
performance
 Engagement in repetitive activities and
stereotyped movements, resistance to change,
unusual responses to sensory experiences
34 C.F.R. § 300.8(c)(1)

5. 5
Legal Definition of Autism
 IDEA
 Characteristics generally manifest by age 3, but
no prohibition on eligibility if they become
apparent later
 No autism classification if educational
performance adversely affected primarily
because of emotional disturbance
34 C.F.R. § 300.8(c)(1)(ii)-(iii)

6. 6
Legal Definition of Autism
 California: “Autistic-Like Behaviors”
 Any combination of:
 Inability to use oral language for appropriate
communication
 History of extreme withdrawal or relating to people
inappropriately
 Obsession to maintain sameness
 Extreme preoccupation/inappropriate use of objects
 Extreme resistance to controls
 Peculiar motoric mannerisms/motility patterns
 Self-stimulating, ritualistic behaviors
Ed. Code § 56846.2; Cal. Code Regs., tit. 5, § 3030, subd. (g)

7. 7
Need for Special Education
 Demonstrating criteria not enough
 Student must require special education and related
services
 Differentiated instruction
 Teachers with specialized knowledge/training
 Both components required for eligibility
20 U.S.C. § 1401(c)(3); Ed. Code § 56026; Cal. Code Regs., tit. 5, §3030, subd. (g)

8. 8
Emerging Issues: The New DSM-5
 Current (DSM-IV) (1994)
 Umbrella term “Pervasive Developmental
Disorders”
 Five distinct categories, diagnostic criteria
 “Autistic Disorder”
 “Rett’s Disorder”
 “Childhood Disintegrative Disorder”
 “Asperger’s Disorder”
 “PDD – Not Otherwise Specified”

9. 9
The New DSM-5
 New (DSM-5)
 Significant changes -- to be released May 2013
 Five categories collapsed into singular diagnosis
of ASD
 Degree to be rated
 Severe
 Moderate
 Mild

10. 10
The New DSM-5
 Potential Effects – Divergent Views
 Diagnosis for “higher-functioning” students
 Some children with Asperger’s syndrome or PDD-NOS
no longer on spectrum?
or
 Criteria more inclusive; lead to more children
diagnosed with ASD?

11. 11
The New DSM-5
 Potential Effects – Divergent Views
 Broader definition
 Better communication between clinicians and special
education personnel?
or
 Confusing to parents who identify strongly with
specific diagnoses?

12. 12
The New DSM-5
 Relevancy to Eligibility
 Legal standards trump DSM criteria
 Historically
 Not accorded significant role in court decisions on
eligibility
 Will this change with new DSM-5?

13. 13
The New DSM-5
Practice Pointers
 Watch for it! Inform, brief staff on changes
 Anticipate questions from parents
 Explain that law has not changed
 Remind of differences between medical diagnosis and
special education eligibility

14. 14
Recognizing “Autistic-Like Behaviors”
 “Identify, locate and evaluate”
 Burden on district to recognize
potential disability
 Threshold for suspicion is “relatively low”
 Inquiry is whether child should be referred for
assessment -- not whether child 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

15. 15
Recognizing “Autistic-Like Behaviors”
 Case Example: “Relatively Low” Threshold
 Parents said Student exhibited many symptoms
“consistent with autism”
 Student did not respond to speech and language therapy
 After subsequent assessment indicated “severe” autism,
Student placed in SDC
Orange County Unified School Dist. v. C.K. (C.D. Cal. 2012) No. SACV 11-1253
[59 IDELR 74]

16. 16
Recognizing “Autistic-Like Behaviors”
 Case Example: “Relatively Low” Threshold
 Court: District should have listened to observations
 Expressed concerns met “relatively low” threshold of
suspicion for autism
 Timely assessment would have allowed special ed
teacher to participate in IEP meetings
Orange County Unified School Dist. v. C.K. (C.D. Cal. 2012)
No. SACV 11-1253 [59 IDELR 74]

17. 17
Recognizing “Autistic-Like Behaviors”
 Case Example: Failure to Follow Up
 Parent delivered letter requesting assessment
 District sent consent for assessment form
 Parent never received it; believed intentionally being
ignored
Student v. Huntington Beach Elementary School Dist. (OAH 2006) Case No.
N2005080264, 106 LRP 49239

18. 18
Recognizing “Autistic-Like Behaviors”
 Case Example: Failure to Follow Up
 ALJ: District violated child find duty
 Negligently failed to follow up when Parents didn’t
respond within reasonable time
 District ordered to reimburse for IEEs
Student v. Huntington Beach Elementary School Dist. (OAH 2006) Case No.
N2005080264, 106 LRP 49239

19. 19
Recognizing “Autistic-Like Behaviors”
Practice Pointers
 Know and watch for warning signs of autism
 Listen to parents’ description of behavior
 Pay attention to staff observations/comments
 Follow up on assessment requests

20. 20
Appropriate Assessment Procedures
 Assessments must be conducted by individuals
“knowledgeable of the student's disability” and
“competent to perform the assessment”
 Numerous, complex and very specific legal
requirements apply
34 C.F.R. § 300.304(b); Ed. Code § 56320

21. 21
Appropriate Assessment Procedures
 Case Example: Comprehensive Assessment
 Good example of appropriate
assessment
 Assessors understood all the
legal criteria and followed all
the rules
Student v. Amador County Unified School Dist. (OAH 2010) Case No. 2010031647,
55 IDELR 241

22. 22
Appropriate Assessment Procedures
 Case Example: Test Administration Flaw
 Assessment designed to be completed by Parents;
assigned to aide
 Portion left blank
 Scores very different when
done correctly
Yucaipa-Calimesa Joint Unified School Dist. v. Student (OAH 2007) Case No. N2006100272, 47 IDELR 236

23. 23
Appropriate Assessment Procedures
 Case Example: Insufficient Time
 Delayed scheduling until two weeks before IEP meeting
 Forced to observe Student during illness; no time to
observe ABA program at home or preschool
 No time to contact private therapist
Student v. Berkeley Unified School Dist. (OAH 2008) Case No. N2007080099, 108 LRP 34227

24. 24
Appropriate Assessment Procedures
 Case Example: Failure to Document
 Outside evaluator destroyed test protocols
 Parents requested review of protocols due to
dispute over accuracy of results
 Destruction of protocols impeded
participation in IEP process
S.F. v. McKinney Indep. School Dist. (E.D. Tex. 2012) 58 IDELR 157

25. 25
Appropriate Assessment Procedures
Practice Pointers
 Know areas that need to be assessed to make
informed determination
 Review all existing data, other evaluations
 Make sure there’s enough time
 Preserve all documents (important when using
outside evaluators)

26. 26
Meeting Criteria for Autism
 Requires two or more behaviors from non-
exclusive list of seven
 If assessment appropriately concludes
student does not exhibit “autistic-like
behaviors,” do not have to reach question of
“adverse effect”
Cal. Code Regs., tit. 5, § 3030, subd. (g)

27. 27
Meeting Criteria for Autism
 Case Example: Ritualistic Behaviors
 Repetitive fantasy talk about Disney princess characters
 But: Talk didn’t exclude other behaviors
 Experts: Imaginative talk about favorite characters not
indicative of autism; rather, lack of imaginative play is
Dublin Unified School Dist. v. Student (OAH 2006) Case No. N2006060896, 106 LRP 65227

28. 28
Meeting Criteria for Autism
 Case Example: Obsession for Sameness
 Criterion established by Student’s need for “perfect
academic performance”
 Obsessed about completing work, taking tests
 But: No other criteria present – had friends, spoke to
peers, made eye contact, was well-liked
Student v. Manteca Unified School Dist. (OAH 2009) Case No. 2009060164, 109 LRP 74895

29. 29
Meeting Criteria for Autism
 Case Example: Extreme Withdrawal
 Parents of 3-year-old spoke English and Japanese;
Grandparents spoke Chinese
 Described as “in her own world”; remained aloof and
withdrawn at preschool
 Behavior consistent with child attempting to acquire
three languages, not autism
Irvine Unified School Dist. v. Student (OAH 2012) Case No. 2012030516, 112 LRP 41895

30. 30
Meeting Criteria for Autism
 Case Example: Inability to Use Oral
Language Appropriately
 Student repeated familiar phrases; didn’t use language
to initiate social contact
 But: Understood many words, expressed interest in
language, used expression in voice
 Only “anecdotal” evidence of inability to communicate
Student v. Los Altos School Dist. (OAH 2007) Case No. N2006060394, 48 IDELR 25

31. 31
Meeting Criteria for Autism
 Case Example: Preoccupation with Objects
 Student repeatedly lined up, inspected, touched, sniffed
toy cars and trains
 But: Could be redirected away from preferred objects
 Extreme preference for toys did not equate to being
consumed or fixated with them
Student v. Los Altos School Dist. (OAH 2007) Case No. N2006060394, 48 IDELR 25

32. 32
Meeting Criteria for Autism
Practice Pointers
 Understand each criterion under the law
 Remember: “Combination” of behaviors required
 Other factors may be underlying cause
 Assessment report should explain criteria,
discuss why (or why not) criteria are met

33. 33
Determining Need for Special Ed
 Results of assessment must show student requires special
education and related services
 No eligibility if student requires related
services, but not special education
 Even if student doesn’t require special education, still may
be eligible under Section 504
20 U.S.C. § 1401(c)(3); 34 C.F.R. § 300.8(a)(2)(i); Ed. Code § 56026; 29 U.S.C. §
705(20)(B)

34. 34
Determining Need for Special Ed
 Case Example: At-home vs. At-school
Behaviors
 Tantrums at home, failed to follow instructions,
distracted by vacuum
 Autistic-like behaviors did not interfere with education
 Excelled in class, followed directions, not distracted by
loud jet noise or unruly classmates
Student v. La Mesa-Spring Valley School Dist. (OAH 2009) Case No. 2009050311, 109
LRP 54643

35. 35
Determining Need for Special Ed
 Other Cases: At-home vs. At-school
Behaviors
 Newark USD: At-home tantrums; fine at school;
diagnosis relied on non-school sources of information
 Riverside USD: Autistic-like behaviors at home; did not
need assistance to function in school setting
 Hopkins ISD: No friendships outside of school;
impairment had no impact on performance
Newark Unified School Dist v. Student (OAH 2007) Case No. N2007040381, 48 IDELR
171; Riverside Unified School Dist. v. Student (OAH 2007) Case No. N2007020300, 49
IDELR 83; Hopkins Indep. School Dist. (SEA MN 2008) 50 IDELR 30

36. 36
Determining Need for Special Ed
 Case Example: General Classroom Supports
 Student found ineligible, but given numerous supports:
quiet place to work, social skills instruction
 IHO upheld assessment findings despite clear need for
various supports
 “Nothing on the list of services constituted special
education,” including social skills instruction
In re: Student with a Disability (SEA WV 2011) 58 IDELR 85

37. 37
Determining Need for Special Ed
 Case Example: 504 Plan Adequate
 Tenth-grade Student with PDD-NOS found ineligible;
given 504 plan with classroom accommodations
 504 plan effective; Student did not need special
education
 “Held his own” in class work, understood lessons,
actively participated
Student v. San Jose Unified School Dist. (OAH 2010) Case No. 2009101232, 110 LRP
28774

38. 38
Determining Need for Special Ed
 Case Example: 504 Plan Inadequate
 Received classroom aide, OT and “quiet place” under
504 plan
 Serious behavior problems that aide couldn’t manage
 Student required special education to address needs
Student v. Monrovia Unified School Dist. (OAH 2012) Case No. SN02-01155, 38 IDELR 84

39. 39
Determining Need for Special Ed
Practice Pointers
 Difficulties outside of school won’t trigger need
to assess unless impact classroom performance
 Agreeing to provide unnecessary services can
lead to trouble
 Needs can change frequently – closely monitor
effectiveness of accommodations

40. 40
Services vs. Classification
 “Child’s entitlement is not to a specific
disability classification or label, but to FAPE”
 Proper IEP addresses student’s needs
regardless of eligibility category
 But misclassification
can have consequences
Letter to Fazio (OSEP 1994) 21 IDELR 572

41. 41
Services vs. Classification
 Case Example: It’s Progress that Counts
 Student eligible as “speech-language impaired”
 Parents believed classification of “autistic-like behaviors”
would have resulted in more appropriate program
 Placed in program to address language needs, social
skills deficits; included children with autism
Student v. Paso Robles Joint Unified School Dist. (OAH 2012) Case No. 2011070195, 112
LRP 33905

42. 42
Services vs. Classification
 Case Example: It’s Progress that Counts
 ALJ: No showing that change of classification would
have resulted in change of services
 Student progressed on goals; no behavior issues
 Parents claimed classification deprived Student of ABA;
but methodology is up to District
Student v. Paso Robles Joint Unified School Dist. (OAH 2012) Case No. 2011070195, 112
LRP 33905

43. 43
Services vs. Classification
 Case Example: Autism or ED?
 Student initially eligible based on Asperger’s syndrome
 Triennial evaluation revealed anxiety and depression;
social skills deficits more attributable to ED
 Assessments supported change in classification;
depression anxiety evident to teachers
George West Indep. School Dist. (SEA TX 2011) 57 IDELR 88

44. 44
Services vs. Classification
 Case Example: Autism and ID?
 Student with autism found to have below average
intellectual functioning; District added ID category
 No substantive denial of FAPE by adding ID category
 No indication that secondary ID classification would
reduce expectations for Student
Student v. Ocean View School Dist. (OAH 2012) Case Nos. 2011080856 and 2011090503,
59 IDELR 117

45. 45
Services vs. Classification
 Case Example: Why Classification Matters
 Student classified with “mental retardation”; challenged
by Parents seeking “autistic-like behaviors” eligibility
 ALJ upheld District’s assessment but classification flawed
-- should have been eligible under both categories
 Student received educational benefit from SDC
placement
Weissburg v. Lancaster School Dist. (9th Cir. 2010) 591 F.3d 1255, 53 IDELR 249

46. 46
Services vs. Classification
 Case Example: Why Classification Matters
 9th Circuit awarded Parents attorney fees
 No IDEA right to proper classification, but District erred
by “failing to consider legal ramifications of change”
 Adding autism category entitled Student to placement
with teacher qualified to teach students with autism
Weissburg v. Lancaster School Dist. (9th Cir. 2010) 591 F.3d 1255, 53 IDELR 249

47. 47
Services vs. Classification
Practice Pointers
 Appropriateness of services is essential
 Strive for classifications that accurately identify
autism and all other disabilities
 Communicate with parents on why’s and how’s
of testing for secondary eligibility category
 Know how, when and why classification matters

48. 48
Take Aways . . .
 Understand eligibility rules
 Watch for warning signs
 Listen to parents
 Always focus
on child’s needs!!

49. 49
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