The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

EDUCATION:

SCHOOLS AND SCHOOL DISTRICTS:

Determining child's eligibility for special education services and programs
A child whose disabling condition meets the federal definition of autism, but not Michigan's definition of that disability, may not on that basis be denied the special education services necessary to provide the child with a free appropriate public education as required by the Individuals with Disabilities Education Act.


Opinion No. 7058

July 27, 2000


Honorable Laura Baird
State Representative
The Capitol
Lansing, MI


You have asked if a child whose disabling condition meets the federal definition of autism, but not Michigan's definition of that disability, may on that basis be denied the special education services necessary to provide the child with a free appropriate public education as required by the Individuals with Disabilities Education Act.

Your request expresses a concern that autistic children in Michigan may be found ineligible for special education programs and services because the Michigan administrative rule defining autism contains a list of specific characteristics that must be present whereas the federal regulation defining autism is more general and, in part, simply describes the characteristics associated with autism. Answering your inquiry requires an analysis of the interplay between the state and federal special education statutes and their respective implementing rules.

Children with disabilities have certain rights and protections as provided under both state and federal law. In Michigan, the Revised School Code, 1976 PA 451, MCL 380.1 et seq; MSA 15.4001 et seq, requires that local school districts "provide special education programs and services designed to develop the maximum potential" of children with disabilities. Section 1751. Under federal law, the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq, provides federal funding to state and local agencies to ensure that all children with disabilities have available to them a "free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." Section 1400(d)(1)(A). IDEA is also designed "to ensure that the rights of children with disabilities and parents of such children are protected." Section 1400(d)(1)(B).

When evaluating a child who potentially qualifies for special education services, the first step under federal and state special education statutes and their implementing regulations is to determine if a child meets the definition of "a child with a disability" who needs special education services. A multidisciplinary individualized education program team composed of parents, school district personnel and designated others is established to make this determination. Once it is determined that a child is a child with a disability who needs special education and related services, an Individual Education Program (IEP) is developed to determine what specific services the child will receive. An individualized education program team develops a specialized program to provide the child with a free appropriate public education. 20 USC 1414. While the parents participate in the IEP process, it is the school district that determines the services the child will receive. If the parents disagree, they are given opportunities to present and resolve complaints as to any matter relating to the identification, evaluation or educational placement of their child and the provision of a free appropriate public education. 20 USC 1415(b)(6).

IDEA and its implementing regulations define the term "child with a disability." See 20 USC 1401(3)(A) and 34 CFR 300.7. The statute includes children with "autism" in the definition of "child with a disability." Section 1401(3)(A)(i). But section 1412(a)(3)(B) of IDEA acknowledges that children need not be classified by the federal definitions of disability.

Nothing in this chapter requires that children be classified by their disability so long as each child who has a disability listed in section 1401 of this title and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under this subchapter.

(Emphasis added.)

Consistent with section 1412(a)(3)(B) of IDEA, states may, and indeed do, use different definitions of disability in administering their special education programs. This flexible approach to defining disabilities for purposes of providing special education and related services has been consistently supported in policy letters issued by the federal agencies that administer IDEA.1 Letter to Pawlisch, 24 IDELR 959 (OSEP, 1995); Letter to Presto, EHLR 213:121 (OSEP, 1988); Letter to Stainback, EHLR 211:389 (OSERS, 1986); Letter to Van Wart, 20 IDELR 1217 (OSEP, 1992). This flexibility is permissible so long as each child who is disabled within the meaning of section 1401 of IDEA is regarded as "a child with a disability" for purposes of receiving special education and related services. See 20 USC 1412(a)(3)(B) quoted above.



(1) "Autism" means a lifelong developmental disability which is typically manifested before 30 months of age. "Autism" is characterized by disturbances in the rates and sequences of cognitive, affective, psychomotor, language, and speech development.

(2) The manifestation of the characteristics specified in subrule (1) of this rule and all of the following characteristics shall determine if a person is autistic:

(a) Disturbance in the capacity to relate appropriately to people, events, and objects.

(b) Absence, disorder, or delay of language, speech, or meaningful communication.

(c) Unusual or inconsistent response to sensory stimuli in 1 or more of the following:
(i) Sight.
(ii) Hearing.
(iii) Touch.
(iv) Pain.
(v) Balance.
(vi) Smell.
(vii) Taste.
(viii) The way a child holds his or her body.

(d) Insistence on sameness as shown by stereotyped play patterns, repetitive movements, abnormal preoccupation, or resistance to change.

(3) To be eligible under this rule, there shall be an absence of the characteristics associated with schizophrenia, such as delusions, hallucinations, loosening of associations, and incoherence.

(4) A determination of impairment shall be based upon a comprehensive evaluation by a multidisciplinary evaluation team. The team shall include, at a minimum, a psychologist or psychiatrist, a teacher of speech and language impaired, and school social worker.

(5) A determination of impairment shall not be based solely on behaviors relating to environmental, cultural, or economic differences.

The above Michigan rule definition of autism differs from that found in federal regulations. Federal regulations implementing IDEA specify that the term "child with a disability" means a child (1) evaluated in accordance with certain procedures set forth in the regulations as having a disability, including autism, and (2) who, by reason of that disability, needs special education and related services. 34 CFR 300.7(a)(1). Subsection 7(c)(1) of the federal regulation defines the term "autism" as follows:

(1)(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, 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. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (b)(4) of this section.

(ii) A child who manifests the characteristics of "autism" after age 3 could be diagnosed as having "autism" if the criteria in paragraph (c)(1)(i) of this section are satisfied.

There is little case law addressing the effect of differences between federal and state definitions of disability for special education purposes. In Muller v Committee on Special Education of East Islip School Dist, 145 F3d 95 (CA 2, 1998), the court applied both the New York and federal regulations defining "emotional disturbance." There, as here, the state definition included additional requirements not found in the federal regulations. The court concluded that, based on the record in that case, the child seeking services was seriously emotionally disturbed and, therefore, entitled to a free appropriate public education under both the state and federal definitions of "emotional disturbance." Thus, the court determined that "this difference between the federal and state regulation is of no concern here." Muller, supra, 145 F3d at 103, n 5. Your question poses the issue that the Muller court did not have to address, namely, what result obtains when a child's condition meets the federal definition but not the more restrictive state definition of the disability in question. Research discloses no reported decision on this question.

The federal Office of Special Education Programs (OSEP), however, has addressed the question of a child's eligibility for services in a state which has a disability category outside of IDEA's 13 categories. The State of Ohio has a category titled "Severe Behavioral Handicapped," a disability not defined in 34 CFR 300.7. In Letter to Anonymous, 22 IDELR 454, 456 (OSEP, 1994), the OSEP concluded that while a state need not use the same categories for defining disabilities, children eligible for special education and related services under one of the federal definitions are entitled to a free appropriate public education "regardless of how they are classified under the State's system":

Federal funds under Part B are made available to States to ensure that all eligible children with one or more of the specified disabilities have available to them a free appropriate public education (FAPE). The Part B regulations at 34 CFR � 300.7 define thirteen separate disabling conditions which, if present, may require the provision of special education and related services to the child. In some cases, States do not necessarily have the same classification system for defining the disabling conditions as specified in Part B or its regulations. However, all students who would be eligible for special education and related services under the Federal definition must receive FAPE, regardless of how they are classified under the State's system. The children with disabilities that a State may count for purposes of determining their Part B grant award must have one or more of the specified disabilities as defined in 34 CFR � 300.7.

(Emphasis added.)

It is my opinion, therefore, that a child whose disabling condition meets the federal definition of autism, but not Michigan's definition of that disability, may not on that basis be denied the special education services necessary to provide the child with a free appropriate public education as required by the Individuals with Disabilities Education Act.



JENNIFER M. GRANHOLM
Attorney General

1 The U.S. Department of Education's Office of Special Education and Rehabilitative Services (OSERS) and Office of Special Education Programs (OSEP).