Deborah ettinger 1

Autism and Eligibility
2014 ACSA Every Child Counts Symposium
Deborah Ettinger, Esq.
Lozano Smith

Sara Jocham
Assistant Superintendent, Special Education
Capistrano Unified School District

Friday, January 17, 2014
10:15 a.m. – 11:45 a.m.

Introduction
• This presentation will review eligibility
requirements for special education,
and in particular under the category of
autistic-like behavior.
• We will also review case law and
provide insight through the lens of an
attorney and Assistant Superintendent
for Special Education (former speech
and language pathologist).

Defining Autism ― Federal
• The IDEA defines autism as:
“[A] developmental disability significantly
affecting verbal and nonverbal
communication and social interaction,
generally evident before age three, that
adversely affects a child's educational
performance.

Defining Autism – Federal (Cont’d.)
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.”
(34 C.F.R. § 300.8(c)(1)(i).)

Defining Autism ― California
• California Code of Regulations defines
“autistic-like behaviors” as:
(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.

Defining Autism ― California (Cont’d.)
(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).)

Individuals with Exceptional Needs
• California defines “individuals with
exceptional needs” as:
– A student identified by an IEP team as a
child with a disability, and
– The student’s impairment requires
instruction and services which cannot be
provided with modification of the regular
school program.
(Cal. Ed. Code § 56026, subd. (a), (b).)

Individuals with Exceptional Needs
• Administrative law judges and courts
use the Rowley benefit standard in
determining whether a student
qualifies for special education. Hood v.
Encinitas Union School District, 486
F.3d 1009 (9th Cir. 2007).

Practical Application
• Look beyond a doctor’s note or private
evaluation for eligibility
• Discuss both prongs at the IEP meeting
• Once eligible does not mean always
eligible for special education services
• Keep documentation of progress in
order to reduce/eliminate services

Dublin Unified School District v. Student,
No. 2006060896 (OAH 2006)
• When student was two years old she
received early intervention services and was
diagnosed with Pervasive Developmental
Disorder, Not Otherwise Specified (“PDDNOS”).
• At three years old, student began receiving
special education services under the
eligibility category of autistic-like behaviors.
She split attendance between a diagnostic
preschool and general education preschool.
• A few months later she began attending
general education preschool exclusively.

(Cont’d.)
• Prior to entering kindergarten, student was
evaluated and diagnosed with high
functioning autism. The developmental
pediatrician found student met six of the
twelve criteria for autism in the DSM-IV.
• Student attended general education
kindergarten. A shadow aide assisted
student. She received resource specialist
program tutoring, behavioral consultation
from a non-public agency (“NPA”), and social
skills training from the NPA.

(Cont’d.)
• During kindergarten, student
performed at an average level in most
academic areas. Student’s teacher
noted she needed improvement in
doing neat and careful work.
• Her teacher noted student’s difficulty
sharing and beginning work is typical
for kindergarten students.

(Cont’d.)
• In her triennial reassessment, district
school psychologist found student did
not manifest behaviors consistent with
an autism diagnosis or with criteria for
the special education eligibility
category of autistic-like behaviors.
– Student had average intellectual skills.
– Displayed some deficits in social skills and
adaptive behavior skills.

(Cont’d.)
• Students’ speech-language assessment found
she scored in the average range on tests of
functional language skills, receptive
language, and expressive language.
• A behavioral and social skills assessment was
conducted. Student was appropriately ontask in the classroom, played with other
children on the playground, initiated social
activities, and did not display unusual
behaviors.

(Cont’d.)
• Assessors concluded Student’s social
and academic skills were within the
average range when compared to
typical peers in her kindergarten class
and she did not require specialized
services.

(Cont’d.)
• At the IEP meeting, district recommended
that Student be exited from special
education because she no longer met the
eligibility criteria and no longer required
special education.
• District proposed that student be referred to
the Student Study Team for ongoing
monitoring
• Parents did not consent to District’s
proposal.

(Cont’d.)
• Parents requested an independent
evaluation.
• A psychologist found that while Student
made good progress, she was still autistic
and needed services in behavior, social skills,
and communication.
– Student was functional in structured situations,
but had difficulty generalizing skills to
unstructured situations.
– Student engaged in “fantasy talk” about Disney
characters, particularly Aladdin.

(Cont’d.)
• An independent speech-language
pathologist found:
– Student scored in average range on most
standardized tests.
– Student had difficulty in spontaneous
language and generalizing language skills
to less structured settings.

(Cont’d.)
• Student’s developmental pediatrician
determined she met five of the twelve DSMIV criteria for autism and concluded student
continued to have PDD-NOS.
– Student demonstrated significant social deficits.
– Repetitive use of language.
– Overly intense and restricted preoccupation with
Disney movie Aladdin.
– Insistence on matching colors of clothes and
eating utensils.

Inquiring Minds want to know….
• Would you take this case to hearing?
• What are the strengths of the case?
• What are the concerns about the case?

(Cont’d.)
• District filed for due process
• ALJ held student was not eligible for
special education under the category of
autistic-like behaviors.
• ALJ considered three criteria in making
her decision:
– Oral Language
– Social Behavior
– Self-Stimulatory, Ritualistic Behaviors

(Cont’d.)
• Oral Language
– “There is ample evidence of Student's
appropriate oral communication.”
– Student greets others, makes requests, asks
questions, verbally participates in class,
described as “chatty.”
– Student uses idiosyncratic language, makes outof-context statements, and makes grammar or
syntax errors.
– But student is able to engage in appropriate
conversations and tests in the average range.

(Cont’d.)
• Oral Language
– ALJ held despite occasional difficulties
Student communicates appropriately
using oral language.
– “Having some deficits in higher-level
language skills does not constitute an
inability to use oral language for
appropriate communication.”

(Cont’d.)
• Social Behavior
– ALJ describes student as having a
“friendly, social personality, and she
frequently initiates social interactions.”
– No persuasive evidence of a history of
extreme withdrawal.
– Thus, issue is whether student has history
of relating to people inappropriately and
continued impairment in social
interaction.

(Cont’d.)
• Social Behavior
– ALJ found that at school student functioned
academically and socially within the normal
range for her age.
– Student’s experts argued she had poor social
reciprocity, poor understanding of social norms,
lack of joint attention, and rudimentary
interactive play skills.
– ALJ noted student plays and interacts
appropriately with peers, is concerned with
others, and does not have any unusual social
deficits.

(Cont’d.)
• Self-Stimulatory, Ritualistic Behaviors
– Student’s experts argued she engaged in
nonfunctional, repetitive fantasy talk
about Disney characters, particularly
Aladdin. Student insisted on wearing
matching clothes and her clothes match
those of her mother and sister.
– ALJ found “extensive evidence” that
student talked about a variety of topics.

(Cont’d.)
• Self-Stimulatory, Ritualistic Behaviors
– ALJ found no evidence that student’s fantasy talk
excluded other behaviors.
• Student participates in school.
• Engages with different toys.
• Sought out different types of play activities.

– ALJ held student’s desire to match clothing does
not meet criterion for self-stimulatory, ritualistic
behaviors.
• Not unusual for girls student’s age to want matching
clothes.
• Behavior only occurred at home.

(Cont’d.)
• ALJ found district established that
student was not eligible for special
education under the category of
autistic-like behaviors.

• Did anything surprise you in the
Hearing decision?
• Are there any “take-aways” from the
case that you can use?

Student v. La Mesa-Spring Valley School
District, No. 2009050311 (OAH 2009)
• Parents enrolled five-year-old student
at a certified NPS.
• NPS did not have a kindergarten.
Student was placed in a first grade class
of five students.
• Parents requested special education
evaluation.

District (Cont’d.)
• Student Study Team (“SST”) met and found
the following about student:
– Smart, verbal at home, good language skills,
creative, artistic, performing at grade level in a
first grade class.
– Difficulty transitioning, inflexible, difficulty
expressing wants/needs, frustrated easily, often
threw tantrums.

• SST referred student for special education
evaluation. Parents requested autism
assessment.

• District evaluation found no speech or
language deficit and no need for OT
services.
• Psycho-Educational evaluation found
student displayed behaviors related to
autism, but student was
“nonspectrum.” Student’s behaviors
were associated to Asperger’s
Syndrome.

• Student’s autistic-like behavior included
avoiding eye contact, withdrawal, remaining
aloof, staring at hands or objects, acting
stand-offish in groups, and tantrums when
given directions.
• At first IEP meeting, District team members
agreed with school psychologist and found
student ineligible for special education as he
did not meet categories for autistic-like
behaviors.
• Parents did not consent to IEP.

• District conducted second evaluation
and again concluded student did not
qualify for special education at a
subsequent IEP meeting.
• Parents disagreed and requested an
IEE.
• District agreed to fund an IEE.

• In the IEE, clinical psychologist found student
failed to greet others, had poor eye contact,
was easily distracted, often played with his
watch and pencils, constantly squirmed and
was restless, chewed/mouthed on his shirt,
and required frequent redirection to stay on
task.
• Clinical psychologist diagnosed student with
Asperger’s Disorder with significant attention
issues and also Bipolar Mood Disorder.

• District staff observed student. Student
was not distracted and remained on
task in noisy classroom. Student
worked independently, followed
instructions, and participated in class.
• District staff did not see signs of
perseveration. Student made constant
eye contact and was not distracted in
the classroom.

• After the IEE, an IEP meeting was
conducted.
• The IEP team reviewed five criteria for
eligibility under autistic-like behaviors
and again found student ineligible.
• District team members noted student's
disability did not have a significant
impact on student academically or
socially.

• Student was also not eligible under
Other Health Impaired due to attention
problems because there was no
adverse effect on his educational
performance.
• Parents refused to consent to the IEP
team’s determination.

Inquiring Minds want to know….
• Would you take this case to hearing?
• What are the concerns?

• Parents filed for due process.
• ALJ held student was not eligible for
special education services.
• ALJ noted student is possibly on autism
spectrum with Asperger’s Syndrome.
• But student did not meet six criteria for
autistic-like behaviors. Also, Student
did not require special instruction to be
given FAPE.

• ALJ emphasized student was not eligible for
special instruction.
– Student received excellent grades, even while in
a first grade classroom at five years old.
– No evidence of tantrums or noise sensitivity at
school.
– Stayed on task and followed directions.
– Maintained eye contact with teacher and peers.
– Not distracted by noise or unruly classmates.
– Attempted social interactions with peers.

Mr. & Mrs. I v. Main School
Administrative District 55, 416 F.Supp.2d
147 (D. Maine 2006)
• While attending district schools,
student performed well academically,
but by fourth and fifth grade she began
exhibiting signs of depression and had
difficulty with peer relationships.
– Very limited group of friends, mostly boys.
One female friend shared her interest in
Japanese anime.

Administrative District 55 (Cont’d.)
• In sixth grade, student tried to change her
appearance and study habits to fit in.
• She began skipping school and parent
noticed red cuts and scratches on her arms.
Teacher noticed student was in bathroom for
prolonged periods of time and suspected she
was “carving into her arms” in the bathroom.
• Concerned with student’s behavior, teacher
and parent proposed a contract with student
to complete assignments.

• When signing contract was imminent,
student stayed home from school and
attempted suicide.
• As a result of her serious suicide attempt,
student was evaluated and diagnosed with
Asperger’s Syndrome and depressive
disorder.
• While student was in the hospital, parents
notified district that student would not
return to school immediately.

• District offered ten hours of tutoring services
per week. Parents accepted offer, but district
failed to provide tutor.
• Parents informed district they were planning
to enroll student in a private school.
• District held a Pupil Evaluation Team (“PET”)
meeting.
• The PET acknowledged student’s diagnosis of
Asperger’s Syndrome and Adjustment
Disorder with Depressed Mood.

• The PET agreed student needed social skills
and pragmatic language instruction.
• The PET concluded, however, that student
did not qualify for special education services
since there was no adverse impact on her
academic progress.
• Instead, the PET offered a 504 plan and
accommodations.

• Parents filed for due process and the hearing
officer upheld district’s decision that student
did not qualify for special education under
the IDEA.
• Hearing officer characterized student’s
Asperger’s Syndrome as a “mental health
issue.” Thus, district was not obligated to
provide services where there was no
academic need.
• Parents appealed to district court.

• Meanwhile, at private school, student made
progress academically but her social
interactions continued to be impaired.
• Peer relationships centered around her
interest in Japanese anime.
• She shunned peer contact outside school.
• She spent “nearly all waking hours” on the
computer engaging in anime-related
activities and only left to use the restroom.

• Student developed new inflexible
behaviors:
– Refused to go outside except to get into
or out of a vehicle.
– Limited her diet to pizza, carrots, red
pepper, macaroni and cheese, and milk.

• The district court addressed two issues:
– (1) Whether student’s condition adversely
affects her educational performance.
– (2) Whether she needs special education
and services as a result.

• Note: Maine broadly defines
“educational performance” to include
nonacademic areas including daily life
activities, mobility, and extracurricular
activities.

• District judge held any adverse effect
on educational performance, even
slight, meets the definition.
• Judge acknowledged a mere diagnosis
of Asperger’s Syndrome or Adjustment
Disorder with Depressed Mood does
not qualify child for special education
under the IDEA.

• District court held student’s Asperger’s
Syndrome adversely affects her
educational performance
– Student very bright, excelled in school,
and was nondisruptive in class.
– Problems in school were as a result of her
Asperger’s Syndrome. These include: poor
communication, self-injurious behavior
during class time, and failure to adapt or
accept others’ views.

• Whether student “needs” special education
as a result of her Asperger’s Syndrome was
not determined by the hearing officer.
• District court held the PET, experts, district,
and parents all initially believed student
needed the identified services.
• Thus, student is eligible for special education
services under the IDEA because her
Asperger’s Syndrome adversely affected her
educational performance.

Hearing decision?
• Are there any “take-aways” from the
case you can use?

Student v. Dublin Unified School District,
No. 2007100454 (OAH 2008)
• Student was diagnosed with Nonverbal
Learning Disability (“NLD”) and Attention
Deficit Hyperactivity Disorder (“ADHD”).
• In third and fourth grade, student was found
eligible for special education services under
the other health impaired category due to
ADHD.
• After making substantial progress, district
exited student from special education.

Student v. Dublin Unified School District
(Cont’d.)
• Student had difficulty transitioning to sixth
grade. A 504 Plan meeting was held and a
504 Plan was established.
• 504 Plan addressed concerns regarding NLD
and ADHD. The 504 team did not note any
concerns about social or peer relationships.
• When student began seventh grade, parents
informed district that he had been diagnosed
with Pervasive Developmental Disorder,
Asperger’s Type. Parents requested special
education services.

(Cont’d.)
• District and parents conducted a 504
Plan meeting pending the outcome of
parents’ request for an IEP.
• Student was referred to the district’s
psychologist and other
accommodations were agreed upon.

(Cont’d.)
• Psychological assessment
– Student displayed anxiety during testing.
– Blinked, made distressed faces, cleared his
throat, had difficulty maintaining eye contact.
– Student reported he often forgot things, had
trouble paying attention, and hated school.
– Overall, scores on assessments in average range,
with some deficits in comparative processing
speed and visual attention.

(Cont’d.)
• Academic achievement assessment
– Student’s sixth grade GPA: 3.333.
– Student made different facial gestures
when deep in thought.
– Scored from average to superior ranges,
no deficits noted.

(Cont’d.)
• IEP meeting conducted and found student
was not eligible for special education under
either SLD or autistic-like behaviors.
– No significant discrepancy between his cognitive
ability and academic achievement.
– Medical diagnosis of Asperger’s not
determinative because it did not address
educational criteria.
– Asperger’s characteristics are not the equivalent
of autistic-like behaviors.

(Cont’d.)
• More specifically, the IEP team found:

– Student was able to use oral language to
communicate appropriately with peers and
teachers.
– No history of extreme withdrawal from infancy
through early childhood.
– No record of extreme resistance to controls, of
self-stimulating, ritualistic behaviors, nor
evidence of obsession to maintain sameness.
– Mild deficits in processing speed and visual
attention.
– History of inappropriate relations with his peers
in early school years through third grade.

(Cont’d.)
• Student completed seventh grade with
the 504 Plan addressing his deficits.
• At the end of seventh grade, parents
requested “reopening” student’s IEP
assessments for the upcoming eighth
grade year.
– Student’s grades had declined.
– Medical advice suggested student needed
a “more protective environment.”

(Cont’d.)
• District responded by interviewing student’s
teachers.
• Student’s teachers reported:

– 504 Plan was being followed.
– Student was not isolated or a loner, interacted
appropriately with peers, actively participated in
class, and appropriately participated in group
discussions.
– Student sometimes lost focus and needed
redirection.
– Student had ongoing problems completing
homework.

(Cont’d.)
• District concluded no new or different
information would obligate district to
reassess student’s eligibility.
• Instead, a 504 Plan meeting was
conducted.

(Cont’d.)
A number of accommodations were
agreed to:
– Preferred seating
– Extra time to write by
hand
– Making eye contact
– Keeping student
focused
– Assistance organizing
binders
– Study buddy
– Parental notification of
missing assignments

– Extra books for home
use
– Homework hotline,
website for math class
– Email status reports to
parents
– Encouraging group work
– Putting new
assignments in binder

(Cont’d.)
• During eighth grade, student’s grades
declined, which was attributable to
student’s problems getting work in on
time.
• Student was absent a significant
number of days
• GPA: 2.5 (within average range)

(Cont’d.)
• Student’s eighth grade teachers reported:
–
–
–
–
–
–

Student did well academically and socially.
Participated regularly in class.
Required some redirection to stay focused.
Smart, has advanced vocabulary.
Interacted appropriately with peers.
Student struggled getting homework done and
turned in on time.
– Struggled keeping binders and notebooks
organized.

(Cont’d.)
• Parents sought an independent evaluation of
student.
• Independent psychologist diagnosed student
with Asperger’s Disorder (mild to moderate
impairment in social interaction), ADHD –
predominately inattentive type, and
indications of Tourette’s Disorder
(motor/vocal tics, making “bug eyes”).
• Independent psychologist recommended
student attend a private high school with a
small, well-structured class environment.

(Cont’d.)
• In May of student’s eighth grade year,
another 504 Plan meeting was held.
• District agreed to conduct
social/adaptive behavior assessments
with the school psychologist and
behaviorist to determine whether and
what supports he might need in order
to transition to high school.

(Cont’d.)
• School psychologist observed student eating
lunch alone, but then joined a group of boys
and had reciprocal conversations.
• Student had skills to join a group and actively
participate in sustained positive interactions
with peers.
• Student’s formal test scores revealed
autistic-like behaviors, but no such behaviors
were observed in the school setting.

(Cont’d.)
• In June prior to student entering ninth
grade, IEP team met.
• IEP team reviewed all assessments,
staff observations, and school reports.
• Consensus was, looking forward to high
school, student was eligible for special
education under autistic-like behavior.
• 504 Plan would not provide sufficient
support in high school.

(Cont’d.)
• IEP team was concerned about a new
campus, student’s need to create new peer
relationships, increased sophistication in
relationships, increased academic workload,
and need for more organizational supports.
• Student’s Asperger’s, ADHD, and slow
processing needs required addressing
student’s attention, organization, pragmatic
language, and social skills.

(Cont’d.)
• District offered special education and
services.
– Participate in general education for academic
subjects, PE, lunch, passing periods.
– 55 minutes of RSP class once per day.
– Behavior management services 55 minutes once
per month.
– Social skills instruction for 30 minutes for 10
weeks.
– Extended time on tests.

(Cont’d.)
• District IEP offer (Cont’d.)
– Preferential seating.
– Resource assistance with classroom notes and
assignments.
– Word processing access.
– Double sets of books.
– Homework expectations coordinated between
parent/student and resource teacher.
– Asperger’s training by board certified behavior
analysts to all appropriate high school staff.

(Cont’d.)
• Parents placed student in private school and
filed for due process.
• Student contended that the district had
notice he was diagnosed with Asperger’s and
should have been eligible for special
education and related services under the
category of autistic-like behaviors in middle
school.
• Student further contended that the IEP
offers were inappropriate and denied him
FAPE.

(Cont’d.)
• ALJ held district properly found student
ineligible for special education in sixth
grade.
– Student performed at or above grade
level.
– Organizational defects addressed by
accommodations in general education
classroom.
– Student made educational progress.
– 504 Plan was sufficient.

(Cont’d.)
• ALJ held district did not deny student
FAPE by failing to find him eligible for
special education during seventh
grade.
– Student was engaged in academic and
social interactions with peers and
teachers.

(Cont’d.)
• ALJ found procedural violation of FAPE.
District failed to make a clear written offer
for social skills services at the IEP meeting.
ALJ, however, held it was harmless error and
did not constitute a denial of FAPE.
• ALJ held district’s IEP offer addressed
student’s unique needs and provided special
education and services in the least restrictive
environment.

(Cont’d.)
• ALJ held student was not entitled to
compensation for any denials of FAPE.
• Further, ALJ held student was not
entitled to reimbursement for tuition
and transportation for private school.

hearing decision?
• What are the concerns?

Closing Points
• Finding a student has a disability is the first
part of the analysis.
• IEP teams must analyze whether there is any
adverse educational impact.
• Educational impact includes academic and
social performance.
• It is possible for students to be exited from
special education and related services.
• It is possible for a student who is previously
found ineligible for special education to later
meet eligibility requirements.

Closing Points
• Keep appropriate data on how the
student is functioning.
• Look at social-emotional issues, as well
as academic issues.
• If a student may no longer be eligible
for special education, start the
discussion with the parents early and
often.

Thank you
Deborah U. Ettinger
Lozano Smith
dettinger@lozanosmith.com
Sara Jocham
Capistrano Unified School District
SRJOCHAM@capousd.org

Autism and Eligibility

Deborah ettinger 1

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