The Individuals with Disabilities Education Act (IDEA) is the federal law that governs the education of children with disabilities, including autism. Congress’ purpose in passing IDEA 48 years ago was to open the school doors for children with disabilities and provide them “a free appropriate education” (FAPE). Over the years, the law has been reauthorized and the case law in the field of special education has sought to further solidify and improve educational opportunities for children with IEPs and special needs. For example, in Endrew F. v. Douglas County School District, 137 S. Ct. 988, the Supreme Court ruled that Individualized Education Plans (IEPs) must give students with disabilities more than a de minimus, or minimal, educational benefit.
Rights Under The Individuals with Disabilities Education Act
Some of the most notable rights under IDEA include:
- Every child with a disability is entitled to a Free Appropriate Public Education (FAPE). This includes special education programming, related services, supports, and an Individualized Education Plan (IEP), if eligible, that must be designed to meet a child’s “unique needs and prepare them for further education, employment, and independent living.”
- The IEP is a written plan, developed by an IEP team (which includes the student’s parents), that includes a student’s present levels of educational performance, annual goals and objectives, programming, services, accommodations/modifications, and more. An IEP should include the strengths of a particular child, any concerns of parent/student and the specific “academic, developmental, and functional needs” of the student.
- School districts need to conduct “appropriate evaluations” in all areas of suspected disability. Evaluations must be conducted by trained evaluators, utilize sound materials and procedures, be administered on a non-discriminatory basis, and be geared toward planning for the child’s education and future instruction. Evaluations should include recommendations regarding a child’s eligibility and/or needs for special education services.
- The Supreme Court, in Endrew F., affirmed that the vision and intent of IDEA is that children with disabilities will make meaningful educational benefit and progress in our education system, achieve “appropriately ambitious” objectives, and “some benefit” is not enough.
- Under the IDEA, a student is guaranteed placement in the Least Restrictive Environment (LRE) Therefore, an IEP team must explore appropriate alternatives to enable students to participate in the general education classroom.
- Transition planning is meant to consider and facilitate the student’s move from school to post-school activities. The transition planning must:
- start before the student turns 16 (or earlier depending on your state’s regulations);
- be individualized;
- be based on the student’s strengths, preferences, and interests; and
- include opportunities to develop functional skills for work and community life.
- Procedural safeguards to help parents and students enforce their rights under federal law. Safeguards protect parental access to information and procedures allow for resolution of disagreements between parents and school districts. If disagreements arise, parents have the right to request mediation or due process hearings with state-level education agencies, and beyond that may appeal the decision in state or federal court.
Parental Rights
In 2007, the Supreme Court issued a unanimous decision in Winkelman v. Parma Cent. School Dist., 550 U.S. 516 (2007) affirming parental rights, underscoring the importance of parental involvement and the essential role parents play in ensuring that their child receives a FAPE, and concluding that parents have independent, enforceable rights.
Some of the most notable parental rights under IDEA include the fact that parents have the right to:
- Receive an explanation of all procedural safeguards,
- Confidentiality,
- Inspect/review their child’s educational records,
- Participate in meetings related to identification, evaluation, and placement of their child,
- Request an independent educational evaluation of their child,
- Receive parent counseling and training as a related service on their child’s IEP,
- Receive “prior written notice” on matters relating to the identification, evaluation, or placement of their child, and the provision of FAPE to their child,
- Provide or deny their consent before the school may take certain action with respect to their child,
- Disagree with decisions made by the school system on those issues, and
- Use the IDEA’s mechanisms for resolving disputes, complaints and appeals.
Some Other Legal Considerations
- The Americans with Disabilities Act (ADA) protects the civil rights of people with disabilities.
- Children with special needs may be eligible for accommodations under Section 504 of the Rehabilitation Act of 1973.
- Guardianship may allow for a parent to continue having involvement with their child’s medical, financial or other aspects of their child’s lives. Before your child with autism turns 18 years of age, you should consider whether guardianship is an appropriate consideration for your family.
- Estate planning allows your family to plan for the future.
- You should see if your state and your health insurance have required coverage for autism-related treatments.
Tips for Parents
- Learn all you can about your child’s needs and their diagnoses.
- Ask a lot of questions. Listen to answers. Take notes.
- Get extremely organized – find a method for saving and organizing documents and information. Save documents, correspondence, and notes in real time.
- Become well-versed in the laws and regulations that govern special education.
- If concerns or issues arise, you can disagree without becoming disagreeable.
- Knowledge is power. Knowing what you don’t know is equally as powerful.
- Explore creative solutions if you are sensing an impasse.
- Get comfortable with the idea that you have an equal seat at the table and your child is relying on you to make good use of it.
- Get to know your child’s teachers and therapists. Keep open lines of communication. Ask for tips and strategies.
- Trust your gut. If something feels off, it very well may be. Voice concerns respectfully. If you feel like you need advice, you should identify an advocate or an attorney who can help guide you.
Individuals with autism and their families may face a variety of legal questions and issues. By being informed and proactive about your rights, entitlements, and the options available, you can help to protect your child and get them the resources, support, and services they need.
Maria C. McGinley, MST, JD, is Founder and Partner of McGinley Law Group, LLP. For more information, visit mlgsped.com.
After my 21 yr old higher functioning Autistic child is maxed out of his special needs school at 22 years of age this fall, will he be able to go to a community colleg for 2 yrs for culinary arts and will it be paid for or are they still be supported not to pay for their community college 2 year program for cullinary arts?