SES Spring 2013 - Special Education in the Modern Age

49
1 Special Education in the Modern Age Eligibility Decisions for Students on the Autism Spectrum

description

Eligibility decisions for students on the autims spectrum.

Transcript of SES Spring 2013 - Special Education in the Modern Age

Page 1: SES Spring 2013 - Special Education in the Modern Age

1

Special Education in the Modern Age

Eligibility Decisions for Students on the Autism

Spectrum

Page 2: SES Spring 2013 - Special Education in the Modern Age

2

Overview Legal Standards for ASD Eligibility Emerging and Contentious Issues

The New DSM-5Recognizing “Autistic-Like Behaviors”Appropriate Assessment ProceduresMeeting CriteriaDetermining Need for Special EducationAppropriate Services vs. Eligibility

Classification

Page 3: SES Spring 2013 - Special Education in the Modern Age

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

Page 4: SES Spring 2013 - Special Education in the Modern Age

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)

Page 5: SES Spring 2013 - Special Education in the Modern Age

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)

Page 6: SES Spring 2013 - Special Education in the Modern Age

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 behaviorsEd. Code § 56846.2; Cal. Code Regs., tit. 5, § 3030, subd. (g)

Page 7: SES Spring 2013 - Special Education in the Modern Age

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)

Page 8: SES Spring 2013 - Special Education in the Modern Age

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”

Page 9: SES Spring 2013 - Special Education in the Modern Age

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

Page 10: SES Spring 2013 - Special Education in the Modern Age

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?

Page 11: SES Spring 2013 - Special Education in the Modern Age

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?

Page 12: SES Spring 2013 - Special Education in the Modern Age

12

The New DSM-5 Relevancy to Eligibility

Legal standards trump DSM criteriaHistorically

Not accorded significant role in court decisions on eligibility

Will this change with new DSM-5?

Page 13: SES Spring 2013 - Special Education in the Modern Age

13

The New DSM-5 Practice Pointers

Watch for it! Inform, brief staff on changesAnticipate questions from parents

Explain that law has not changed Remind of differences between medical

diagnosis and special education eligibility

Page 14: SES Spring 2013 - Special Education in the Modern Age

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

Page 15: SES Spring 2013 - Special Education in the Modern Age

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]

Page 16: SES Spring 2013 - Special Education in the Modern Age

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]

Page 17: SES Spring 2013 - Special Education in the Modern Age

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

Page 18: SES Spring 2013 - Special Education in the Modern Age

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

Page 19: SES Spring 2013 - Special Education in the Modern Age

19

Recognizing “Autistic-Like Behaviors”

Practice Pointers

Know and watch for warning signs of autism

Listen to parents’ description of behaviorPay attention to staff

observations/commentsFollow up on assessment requests

Page 20: SES Spring 2013 - Special Education in the Modern Age

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

Page 21: SES Spring 2013 - Special Education in the Modern Age

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

Page 22: SES Spring 2013 - Special Education in the Modern Age

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

Page 23: SES Spring 2013 - Special Education in the Modern Age

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

Page 24: SES Spring 2013 - Special Education in the Modern Age

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

Page 25: SES Spring 2013 - Special Education in the Modern Age

25

Appropriate Assessment Procedures

Practice Pointers

Know areas that need to be assessed to make informed determination

Review all existing data, other evaluationsMake sure there’s enough time Preserve all documents (important when

using outside evaluators)

Page 26: SES Spring 2013 - Special Education in the Modern Age

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)

Page 27: SES Spring 2013 - Special Education in the Modern Age

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

Page 28: SES Spring 2013 - Special Education in the Modern Age

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

Page 29: SES Spring 2013 - Special Education in the Modern Age

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

Page 30: SES Spring 2013 - Special Education in the Modern Age

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

Page 31: SES Spring 2013 - Special Education in the Modern Age

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

Page 32: SES Spring 2013 - Special Education in the Modern Age

32

Meeting Criteria for Autism Practice Pointers

Understand each criterion under the lawRemember: “Combination” of behaviors

requiredOther factors may be underlying cause Assessment report should explain criteria,

discuss why (or why not) criteria are met

Page 33: SES Spring 2013 - Special Education in the Modern Age

33

Determining Need for Special Ed Results of assessment must show student requires

special education and related services

No eligibility if student requires relatedservices, 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)

Page 34: SES Spring 2013 - Special Education in the Modern Age

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

Page 35: SES Spring 2013 - Special Education in the Modern Age

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

Page 36: SES Spring 2013 - Special Education in the Modern Age

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

Page 37: SES Spring 2013 - Special Education in the Modern Age

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

Page 38: SES Spring 2013 - Special Education in the Modern Age

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

Page 39: SES Spring 2013 - Special Education in the Modern Age

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

Page 40: SES Spring 2013 - Special Education in the Modern Age

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

Page 41: SES Spring 2013 - Special Education in the Modern Age

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

Page 42: SES Spring 2013 - Special Education in the Modern Age

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

Page 43: SES Spring 2013 - Special Education in the Modern Age

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

Page 44: SES Spring 2013 - Special Education in the Modern Age

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

Page 45: SES Spring 2013 - Special Education in the Modern Age

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

Page 46: SES Spring 2013 - Special Education in the Modern Age

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

Page 47: SES Spring 2013 - Special Education in the Modern Age

47

Services vs. Classification Practice Pointers

Appropriateness of services is essentialStrive for classifications that accurately

identify autism and all other disabilitiesCommunicate with parents on why’s and

how’s of testing for secondary eligibility category

Know how, when and why classification matters

Page 48: SES Spring 2013 - Special Education in the Modern Age

48

Take Aways . . . Understand eligibility rules Watch for warning signs Listen to parents Always focus

on child’s needs!!

Page 49: SES Spring 2013 - Special Education in the Modern Age

49

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 .