Students in Dallas, Houston, Austin, and elsewhere in Texas can seek accommodations for Autism Spectrum Disorders (ASD). In the 2022-23 school year, over a thousand Texas primary and secondary school students were eligible for services and accommodations for ASD. However, accommodations for ASD do not stop when a student graduates but continue at the college or university level. The law governing accommodations depends on the student's educational level, and federal and Texas laws cover different aspects.
The Lento Law Firm is a Nationwide Student Defense Firm
The Lento Law Firm is a nationwide firm of experienced education attorneys. The Lento Law Firm represents parents and students fighting for accommodations that adequately address their needs and disabilities. The Lento Law Firm Student Defense Team can help if a student's disability has led to academic issues, even if the student has failed to inform the university and request accommodation. Wherever you are in the accommodation process, the Lento Law Firm can assist you in protecting your rights as a person with a disability. Call 888.535.3686 or provide your details online, and we will contact you.
Federal vs. Texas State Law of Disability
Most students with ASD begin receiving accommodations during primary or secondary school within the special education process. Laws surrounding special education are largely federal, but Texas state laws and regulations also govern how special education is offered and funded. The most significant federal law governing special education is the Individuals with Disabilities Act (IDEA), which requires states to provide all students a Free Appropriate Public Education (FAPE) and prepare an Individualized Education Plan, or an IEP. The Education of students with disabilities is also governed by Section 504 of the Federal Rehabilitation Act.
While special education law governs what services the school must provide, all schools, colleges, or universities must accommodate and not discriminate against a student with a disability under Section 504 of the Federal Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). A disability is a condition that substantially limits one or more major life activities. Before the 2008 Amendments to the ADA, the status of ASD as a disability was unclear. But 29 CFR §1630.2(j)(3)(iii) specifically lists autism as a disability under the ADA. Use care if referencing older materials under the ADA, as this law has been amended repeatedly. At this point, if your student has a diagnosis of ASD, their college or university will have an obligation to accommodate them and to refrain from discriminating against your student.
Autism Defined Under Federal and State Laws
The definition of autism for purposes of school disability law is found federally at 34 CFR §300.8(c)(1), which provides that:
(I) 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 include engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.
The Texas Commissioner's Rules concerning autism services are found in the Texas Administrative Code §89.1040(c)(1), which states:
(1) Autism. A student with autism is one who has been determined to meet the criteria for autism as stated in 34 CFR, §300.8(c)(1). Students with pervasive developmental disorders are included under this category. The team's written report of evaluation must include specific recommendations for behavioral interventions and strategies.
Standards for Eligibility for ASD Students for Special Education
Under these standards, autism is defined as a developmental disability affecting communication and interaction characterized by:
- Repetitive interest and movements.
- Resistance to changes in routines and habits.
- Unique responses to sound, sight, and other stimuli.
Typically, autism is diagnosed before the age of 3. However, the federal definition provides that autism may be identified in children older than three if other criteria in the definition are met.
This concern about early diagnosis is also present in Texas law, where insurance coverage is guaranteed only for those diagnosed before age 10. This aspect of Texas law may prove troublesome, especially for girls diagnosed with autism, since they are often misdiagnosed or diagnosed later than boys.
Definition of ASD in DSM 5
The American Psychiatric Association sets forth the criteria for a diagnosis of ASD in the Diagnostic Statistical Manual Fifth Edition (DSM 5). To satisfy the criteria, students must demonstrate deficits in all three areas of Social Communication and two of four areas of Restricted, Repetitive Patterns of Behavior, Interests, or Activities.
Three Areas of Social Communication
Autism involves a persistent deficit in all three areas of social communication.
- Social-emotional reciprocity.
This measures the ability of a student to engage in back-and-forth sharing of information and ideas and the ability to start a conversation or other communication with another person. It also measures the ability to respond when another person initiates a conversation or indicates that they wish to interact with the student.
- Nonverbal communication behaviors.
This measures a student's ability to make eye contact, use body language, or make facial expressions while speaking. This area concerns how verbal communication, body language, and facial expressions “go together” and are consistent.
- Developing and maintaining relationships.
This measures difficulties in making friends, engaging in play, or being interested in peer relationships. It might involve difficulty adjusting to social situations.
Restricted, repetitive patterns of behavior, interests, or activities.
A person must show at least two of the following four patterns of behavior:
- Stereotyped or repetitive movements or use of objects or speech.
This might involve repeating certain phrases, making repeated hand gestures, or arranging belongings in a particular way.
- Resistance to change, insisting on rigid rules or rituals in speech or nonverbal behavior.
The student might react emotionally if rules are not followed closely, or routines are flexible. They may have a ritual in greeting people or in their speech, and they may eat the same thing every day for long periods.
- Fixation of Interests with a high degree of intensity and focus.
The student may show a fixation or an in-depth study of a particular interest or hobby or an obsession with a subject or object.
- Either overreacts to sensory stimuli or is indifferent.
This might involve an extreme reaction to minor touching, such as a tag on the back of a shirt. The person may also be unaware of hot or cold or indifferent to temperature extremes. A student with ASD might be fascinated by light, sound, or movement.
Levels of Severity of Autism Spectrum Disorder
The types of accommodation required by a student will depend on the level or severity of the ASD.
Level 1 – Requires support.
A student at Level 1 will have some difficulty initiating social interaction with peers and others. They will have some challenges to independent living and will require support.
Level 2 – Requires substantial support.
At level 2, a student will limit social interaction to narrow interests and have difficulty initiating interaction with others. The student will engage in many repetitive behaviors and needs substantial support services.
Level 3 – Requires very substantial support.
A student at Level 3 will have great difficulty with verbal or nonverbal communication. They will experience distress over routine changes and need very substantial support services.
Eligibility for Special Education for Autistic Students
Many parents think of a diagnosis of autism spectrum disorder as something a physician or other health professional must make. That is true for a diagnosis of ASD. However, in determining whether a student is eligible for special education, that diagnosis is not controlling. The student must have ASD, and it must significantly impact that student's educational performance.
In Texas, this concept is covered by Texas Commissioners Rules Concerning Special Education, TAC §89.1040(c)(1), which provides that the ARD Committee must provide a written report with specific recommendations for accommodations and strategies.
Admission, Review, and Dismissal Committee (ARD)
In Texas, the Admission, Review, and Dismissal Committee (ARD) determines whether a child is an eligible child with a disability. Under the Texas Administrative Code, 19 TAC §89.1050, the ARD is a group of qualified professionals, including:
- The parents of the student.
- A regular education teacher.
- A special education teacher.
- A representative of the school district.
- An individual qualified to interpret evaluation results.
- Other individuals with knowledge or special expertise.
- The student, if appropriate.
- In some situations, a representative of an agency that will provide transition services or a representative for career or technical education.
Medicaid Waiver
Medicaid waiver programs in Texas allow a child to be approved for care without reference to the income of parents and other family members. This allows autistic students who might never qualify for Medicaid services to qualify if they are autistic. There is a waiting list for consideration of this program, so anyone with a recent ASD diagnosis should apply immediately.
Autism Accommodations under Texas Law
Under TAC § 89.1055, Texas recognizes eleven distinct accommodation strategies for students with autism. The ARD Committee should address why each strategy is appropriate or not for a particular student, and strategies are expected to change over time.
- Extended educational programming.
This involves an extended school day (ESD) or an extended school year (ESY), where programs are offered after school or during school breaks.
- Daily schedules of minimal unstructured time and active engagement in learning.
This involves planning in short blocks to accommodate a short attention span and limit much unstructured time.
- In-home and community-based training to assist in acquiring social and behavioral skills.
A student may need training in the home or community for living and social skills, such as grocery shopping, using an ATM, or assisting with at-home skills.
- Positive behavior support strategies (PBS).
These strategies involve modifying the student's environment to help them learn new ways of communicating or coping. A Behavior Intervention Plan (BIP) will outline steps to prevent bad or problem behaviors. A Functional Behavior Assessment (FBA) can identify what causes or precedes a behavior and what consequences a child receives if the behavior occurs.
- Futures planning.
Plan for skills necessary to live, work, attend school, and function in a community in school and after graduation. The student may wish to share their hopes and dreams, and the parent may share their hopes and concerns. This is a constant work in progress.
- Parent or family training and support.
This might involve a workshop or other training or educational materials. Some parents might need specific materials from the school.
- Staff to Student Ratio.
The ratio is necessary for a student to learn. For some activities, the ratio may be quite high. For other activities, such as early learning in math, the student may need one-on-one instruction.
- Communication interventions.
This includes speech services and communication assistance, such as voice-activated or picture communication methods. Every student will need some way to communicate, even if it is nonverbal.
- Social skill support.
This may involve teaching various social skills or manners or practicing social interactions. It may also involve peer support, for example, at recess.
- Teacher and staff support.
Staff working with students need training and other support.
- Teaching strategies based on evidence-based practices and peer-reviewed articles.
Applied behavior analysis (ABA), social skills training, discrete trial learning, and other strategies.
Issues with Accommodation for Students with Autism
The Texas Education Agency provides guidance for issues that may arise for each type of accommodation in the Autism Supplement:
- Extended School Day or School Year
The Committee must consider the student's communication, interpersonal, and behavioral skills and determine if additional instruction is necessary. If instruction is necessary beyond a “normal” school day or school year, the school must provide it. This is particularly true if the student has lost critical skills because of a failure to receive adequate instruction. The Committee must use a variety of tools to make an honest assessment of the student's abilities and needs.
- Daily Schedules and Minimal Unstructured Time.
The vast majority of ASD students benefit from a daily schedule accommodation. Students will need a daily schedule and alternative schedules for special events. It is crucial to limit unstructured time for most students.
- In-home and community-based training.
Because ASD students often have difficulty generalizing skills from one setting to another, home-based or community-based training may be necessary. The school may use viable alternatives, and the definition of “viable” depends on the skills and needs of the student. These alternatives might include video, inviting parents to the classroom, or informal visits to observe the student. In-home training may be a direct service or an indirect service, but many students would need direct services to be effective.
- Positive behavior support strategies (PBS).
A Functional Behavior Assessment (FBA) may be used to provide the basis of a Behavioral Intervention Plan (BIP). For most of these plans, a parent must consent, and a parent who disagrees with a child's FBA has a right to an independent examination (IEE) at no expense (paid for by the school). The parent should be comfortable with this accommodation.
- Futures planning.
A plan for the greatest degree of independent skills possible should begin informally as soon as the student starts school. This starts with assistance with problem-solving and decision-making. Before the student turns 14, a more formal futures plan should begin. Living skills should be emphasized and included in future planning for all students.
- Parent or family training and support.
Schools should provide parents with information and training opportunities. This training should focus on issues in the IEP and be offered in various formats, such as one-on-one or group settings.
- Staff-to-Student Ratios
The staff-to-student ratio for any particular activity or lesson must be determined for the student in question. An acceptable ratio will vary from one activity to another. To determine the best staff-to-student ratio, the Committee must look at the student's communication ability, the setting, and the level of competence for a particular task. This level of competence may be:
- Level One – Acquisition
- Level Two – Fluency
- Level Three – Maintenance
- Level Four – Generalization.
At Level One, the student will need an extremely low ratio and may need one-on-one instruction. As the student moves to fluency and maintenance, this ratio can rise, and effective learning will still be possible. Students attempting to generalize a skill from one setting to another may also need special instruction. The goal of generalization is independence.
- Communication Interventions.
While communication interventions center around a Speech-Language Pathologist (SLP), this series of accommodations can be much broader than that. Communication interventions may involve other therapies or the increasing use of assistance technology devices.
- Social Skill Supports.
This accommodation might involve peer facilitators, social skill therapy, or video modeling. The level of support required depends on the student.
- Teacher and Staff Support.
The school must provide training to all staff working with your student.
- Teaching strategies based on evidence-based practices and peer-reviewed articles.
This broad category might include applied behavioral analysis, social skills training, structured learning, and augmentative communication. If you want a particular strategy used with your student, you must show research emphasizing reliability and validity.
Testing Accommodations
There are three levels of primary and secondary school testing accommodation in Texas:
- Level 1 - Accessibility
This is an accommodation the student uses regularly in the classroom and can use independently. It might include online adaptive technology the student uses routinely in the classroom. The school does not need to notify or seek TEA permission to offer this accommodation. These accommodations might include:
- Zoom Feature
- Use of notepad
- Sticky notes
- Line Reader
- Level 2 – Locally Approved Designated Supports
This is a locally approved accommodation for students meeting specific criteria. The school does not need to notify or seek TEA permission to offer this accommodation. These accommodations might include:
- Text-to-Speech
- ASL
- Calculator use
- Speech-to-text
- Level 3 – TEA Approved Designated Supports
The school must seek TEA permission to offer additional designated support. The four TEA-approved designated supports are:
- Complex Transcribing
- Mathematics Scribe
- Extra Day
- Other
College or University Accommodations
All the testing accommodations listed above may also be appropriate for the college or university level. For example, a college student might seek accommodations for language issues, ask for a language interpreter, or take a written test orally. A student with autism might ask for a note taker or other accommodation and assistance in taking notes.
The procedure for requesting accommodations varies from institution to institution in Texas. Students at the University of Texas at Austin must register with the Disability and Access Office. They may then seek an Accommodation Letter online at a disability access portal.
College-level accommodations often center around accommodations for testing and note-taking assistance. The campus seeks volunteers to take and upload available notes to students who have registered online. The Campus Testing Center handles testing accommodations: all arrangements and appointments are made through the online portal.
Academic Discipline and Disability
At the college level, a student may fail to register as having a disability despite having years of accommodation in middle and high school. Such a student may find themselves in academic trouble without accommodation but may be overwhelmed with how to begin asking for accommodation and help. Even if things have progressed to expulsion, call the Lento Law Firm. You can take action to inform the university of your disability and to ask for accommodation now. This accommodation may involve a fresh start and the help of note-takers and testing accommodations. Your student can succeed if given the opportunity and the flexibility that the college is required to provide under federal law. It is not a favor – it's the law.
The Lento Law Firm Student Defense Team Can Help
Wherever you are in the process of securing accommodations for your student, the Lento Law Firm can help. If you are fighting for the necessary services for your middle or high school student, we are experienced and can help you get the services you need. If you or your child has started college but is overwhelmed without adequate accommodation, we can assist you in working with the university to create a plan for success. If you or your child is facing discipline or failing to progress academically, the Lento Law Firm Student Defense Team can help you assert your rights to disability accommodation for your ASD. Call 888.535.3686 or provide your details online, and we will contact you.
