Eligibility under the Category of Autism / Autistic Like Behaviors

The national organization Autism Speaks reports that it is currently estimated that one in every 110 children is diagnosed with Autism, and that the prevalence rate is increasing by 10-15 percent per year. (Source: What is Autism? www.autismspeaks.org) With those numbers, leading some people to refer to an "Autism epidemic" it is no wonder that eligibility for special education under the category of Autism is sometimes a hot topic.

The IDEA definition of Autism:

Autism means 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. 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. section 300.8(c)(1). The IDEA also notes that students who exhibit the characteristics of Autism after age 3 can also be eligible if the other criteria is met.

State Criteria for Autism Eligibility:

State special education laws have their own specific criteria for eligibility under the Autism category. Many states have criteria that is focused not on whether there is an actual diagnosis of Autism, but whether there is the presentation of characteristics associated with Autism, and because of these needs the child requires special education and related services. Here are some examples:

California defines this category as "Autistic Like Behaviors." Just this label itself is helpful for broadening the availability of special education and related services under this category to include students who may not have an actual medical diagnosis of Autism. In California, defines Autistic Like Behaviors as follows:

A pupil exhibits any combination of the following autistic-like behaviors, to include but not limited to:
(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.

Title 5, California Code of Regulations, section 3030(g).

Another list, with more thorough explanations, is found in the Wisconsin education laws, which specifically require that two or more of the behaviors be exhibited:

1. The child displays difficulties or differences or both in interacting with people and events. The child may be unable to establish and maintain reciprocal relationships with people. The child may seek consistency in environmental events to the point of exhibiting rigidity in routines.

2. The child displays problems which extend beyond speech and language to other aspects of social communication, both receptively and expressively. The child’s verbal language may be absent or, if present, lacks the usual communicative form which may involve deviance or delay or both. The child may have a speech or language disorder or both in addition to communication difficulties associated with autism.

3. The child exhibits delays, arrests, or regressions in motor, sensory, social or learning skills. The child may exhibit precocious or advanced skill development, while other skills may develop at normal or extremely depressed rates. The child may not follow normal developmental patterns in the acquisition of skills.

4. The child exhibits abnormalities in the thinking process and in generalizing. The child exhibits strengths in concrete thinking while difficulties are demonstrated in abstract thinking, awareness and judgment. Perseverant thinking and impaired ability to process symbolic information may be present.

5. The child exhibits unusual, inconsistent, repetitive or unconventional responses to sounds, sights, smells, tastes, touch or movement. The child may have a visual or hearing impairment or both in addition to sensory processing difficulties associated with autism.

6. The child displays marked distress over changes, insistence on following routines, and a persistent preoccupation with or attachment to objects. The child’s capacity to use objects in an age—appropriate or functional manner may be absent, arrested or delayed. The child may have difficulty displaying a range of interests or imaginative activities or both. The child may exhibit stereotyped body movements.

Wisconsin Administrative Code; PI 11.36(8).

As each state has their own criteria, it is important to identify what the applicable standard is for your state specifically. Remember that assessments should be done in all areas of suspected disability, and should provide the IEP team with enough information to make determinations of eligibility and need for special education and related services. Thus, when a school district is assessing for a possible eligibility under the category of Autism, that assessment should be looking at the applicable list of characteristics and behaviors, even if the assessor does not "diagnose" under the DSM-IV (see below).

Diagnosis versus Eligibility:

Diagnosis of Autism under the DSM-IV is different than a determination of eligibility under the category of Autism or Autistic Like Behaviors. Different standards, and sometimes different procedures, are used. Thus, if a child does not have a diagnosis by a qualified professional of Autism, this should not necessarily stand in the way of eligibility if the school district does a proper assessment. Here is a little bit more about diagnosis:

DSM-IV Criteria for Diagnosing Autism:

I. A total of six (or more) items from heading (A), (B), and (C), with at least two from (A), and one each from (B) and (C):

(A) Qualitative impairment in social interaction, as manifested by at least two of the following:

• Marked impairments in the use of multiple nonverbal behaviors such as eye-to- eye gaze, facial expression, body posture, and gestures to regulate social interaction.
• Failure to develop peer relationships appropriate to developmental level.
• A lack of spontaneous seeking to share enjoyment, interests, or achievements with other people, (e.g., by a lack of showing, bringing, or pointing out objects of interest to other people).
• A lack of social or emotional reciprocity.

(B) Qualitative impairments in communication as manifested by at least one of the following:

• Delay in or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime).
• In individuals with adequate speech, marked impairment in the ability to initiate or sustain a conversation with others.
• Stereotyped and repetitive use of language or idiosyncratic language.
• Lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level.

(C) Restricted repetitive and stereotyped patterns of behavior, interests and activities, as manifested by at least two of the following:

• Encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus.
• Apparently inflexible adherence to specific, nonfunctional routines or rituals.
• Stereotyped and repetitive motor mannerisms (e.g. Hand or finger flapping or twisting, or complex whole-body movements).
• Persistent preoccupation with parts of objects.

II. Delays or abnormal functioning in at least one of the following areas, with onset prior to age 3 years:

(A) Social interaction.
(B) Language is used in social communication.
(C) Symbolic or imaginative play.

III. The disturbance is not better accounted for by Rett's Disorder or Childhood Disintegrative Disorder.

Source: Diagnostic and Statistical Manual of Mental Disorders; Fourth

Qualifications to Assess:

The qualifications for being able to diagnose a child under the DSM-IV criteria and being able to assess a child for special education eligibility may be different. Generally, if a school psychologist or other assessor for the school district is using the term "diagnose" you should ask for information about their qualifications to do so, and about whether they were evaluating in order to ascertain a "diagnosis" or a disability as defined in educational criteria.

Meaning of "Adverse Effect on Educational Performance"

The IDEA requires consideration of whether the student's Autism "adversely affects educational performance." This in turn becomes something up for interpretations, and given that many states have also not clearly defined the meaning of either "adverse effect" or "educational performance," it becomes the subject of dispute between parents and school districts. The term "adverse effect" has been noted not to require evidence of a "significant impact" on educational performance in some cases, while others have noted that it requires more than "slight impact" on educational performance. The term "educational performance," which seems pretty straightforward, can actually be even more tricky. Again, this is an area where you will have to investigate your state laws to see how "educational performance" is defined.

What may be included in "educational performance?" The obvious answer is academic skills / achievement. However, it could possibly also include non-academics such as behavior, social skills, communication skills, interactions with peers, etc. If you think about this, it makes perfectly logical sense. Ask any teacher what children are expected to learn and do in class, and the list will undoubtedly include appropriate classroom behaviors and learning to get along with others. Look at your state's educational content standards, and there are likely to be ones related to communication and listening skills. Take a look at your child's report card carefully, and you'll notice "citizenship" or "effort" scores that are likely related not to what academic skills were performed, but how your child behaved and interacted in the classroom. All of these things are part of the educational environment and expectations for kids, and there is an argument to be made that this makes them part of what should be considered in "educational performance."

Eligibility under the category of "Developmental Delay"

Understanding the eligibility category that is designated on your child's IEP is important because it enables you to come from the same "starting place" as an IEP team. With so many categories and "labels," it can definitely be confusing, particularly for parents who are new to the "system." For preschool aged students, understanding the longer term relevance of the category designated is also important.

The IDEA allows for eligibility under the category of "Developmental Delay," which is a unique category with different rules than the other categories, and only applies to a particular age group.

Developmental Delay as an eligibility category is an option.

States can choose to recognize DD as an eligibility and create guidelines for determining eligibility under this category. Then, if the state has set forth DD as an option, individual school districts can choose whether to adopt DD as a category. The state cannot force the District to adopt DD for eligibility purposes, but if the state itself doesn't adopt DD, then the school districts are not allowed to use that category. (The 1997 amendments of the IDEA changed the provisions related to Developmental Delay to make the adoption of this category in the discretion of both the SEA and the LEA, rather than solely in the discretion of the SEA). If the state chooses to adopt DD as an eligibility category, then a school district that chooses to use this category must apply the state's definition of DD and the state's determination of age range. A district cannot deviate from the definition of developmental delay or the age range adopted by the state. 34 C.F.R. section 300.111(b)(3).

Definition of Developmental Delay

The IDEA: Developmental delay includes a student who is experiencing developmental delays as defined by the state and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development. 34 C.F.R. 300.8(b)(1).

Of course, as stated above, the states have the power to define "developmental delay," including adding details to the definition above, or setting the specific date range that is covered by this category. Included below is a list of the details / criteria from California's definition of DD, since that is the one I am familiar with, as well as a few others I've been able to locate.

State: California
Legal Citation: Title 5, California Code of Regulations, section 3031
Age Range: through age 4 years and nine months
Criteria: There are three ways to meet the criteria. (1) Child must be functioning at or below 50% of his / her chronological age level in any one of the identified skill areas (gross or fine motor, receptive or expressive language, social or emotional development, cognitive development, visual development); or (2) Child must be functioning between 51% and 75% of his / her chronological age in any two of the identified skill areas (see above); or (3) Child has a disabling medical condition or congenital syndrome which the team determines has a high predictability of requiring intensive special education services (i.e. "at risk" category).

State: Maryland
Legal Citation: COMAR 13A.05.01.03B(69)
Age Range: school districts have the option of utilizing the DD category for students age 3 to 5, or for students up to any age not exceeding 9.
Criteria: There are three ways to meet the criteria - (1) Child has 25% or greater delay in adaptive, cognitive, communicative, emotional, physical or social development as measured and verified by appropriate diagnostic instruments and procedures; or (2) Child has atypical development or behavior, which is demonstrated by abnormal quality of performance and function in one or more of the specified areas, and which interferes with current development and is likely to result in subsequent delay; or (3) Child has a diagnosed physical or mental condition (elsewhere defined in the statute) which has a high probability of resulting in a developmental delay, including students with sensory impairments inborn errors of metabolism, microcephaly, fetal alcohol syndrome, epilepsy, Down Syndrome, and other chromosomal abnormalities.

State: Wisconsin
Legal Citation: Wisconsin Administrative Code, PI 11.02 (11)
Age: through age 5 or "below the age for compulsory education"
Criteria: (1) First, all other suspected areas of eligibility must be ruled out; (2) Child must demonstrate delays in development that significantly challenge the child in two or more of five specifically identified "major life activities" including: physical activity in gross motor skills; cognitive activities; communication; emotional activities; and adaptive activities; and (3) These delays must be documented via quantitative and qualitative measures.

What's Important to Know about the Developmental Delay Category

It's important to realize that based on the IDEA and your state's regulations, there may be a "cut off date" for eligibility under the DD category. Some school districts interpret this to mean that a child is to be automatically exited from special education at that age. This isn't an accurate interpretation or appropriate approach. Rather, if a child's sole category of eligibility has been under DD, then the school district should reevaluate before the "cut off age" in order to determine if the child meets the criteria in another area. Remember - school districts are obligated to assess a child in all areas of suspected disability, so the reevaluation should be sufficient to identify other possible areas in which the child may have needs that require special education and related services.