The number of children diagnosed with autism spectrum disorders (ASD) has increased dramatically in recent years. In the coming years, these children identified with ASD in early life will be reaching adolescence and early adulthood. Their sheer numbers – according to the CDC, an average of 1 in 110 children – will shape in unprecedented ways the transition of special education students from high school to the world of work and college. This article will review the federal law and the court cases governing transition for all special education students including those with ASD as well as raise emerging questions concerning transition.
In l990, the Individuals with Disabilities Act (IDEA) first introduced the concept of transition services, providing a passageway for those leaving high school into higher education, jobs, and other facets of post-high school life. The IDEA, which guarantees a free and appropriate education (FAPE) for all children with disabilities, federally mandated that each Individualized Education Plan (IEP) must include a statement concerning “transition services.” The IDEA defined “transition services” as a set of coordinated activities established for each individual child. The goal was to strengthen the child’s academic and functional abilities to prepare them for post-secondary outcomes such as employment, college, vocational training, adult services, independent living, or community participation.
Despite the introduction of this promising concept, the success of transition planning and implementation of such services remains untested. The IDEA requires that a statement of transitional services be included in the child’s IEP as early as needed, but no later than the child’s 16th birthday. However, the transition plan for each student does not have to be a separate, extensive document. The case law has been clear that this requirement of the IDEA is satisfied even if there is one sentence stating that transition services are needed for the child. The result of this minimal requirement is that often the child does not receive any actual transition services.
Additionally, there are other federal laws that affect the transition process including: (1) Fair Labor Standards Act (FLSA), (2) Rehabilitation Act of 1990, (3) 1994 School to Work Transition Act, and (4) Americans with Disabilities Act of 1990 (ADA). Each law provides rights for children and adults with disabilities. These laws affect transition in a variety of ways: by ensuring that minimum labor standard guidelines apply to students with disabilities in vocational training, which helps them prepare for long-term employment after high school graduation; by creating school-to-work programs and obtaining federal grants to ensure that each district can create and maintain such programs; and by increasing awareness of the rights of all individuals with disabilities and ensuring equal opportunities. At this time, lawmakers and the courts are merely skimming the surface of this issue and not exploring the adverse consequences that inadequate transition services affect the future of children with disabilities.
The problem is exacerbated by the lack of legal scholarship on the subject. However, there have been several non-legal articles and guidebooks that address transition services and propose guidelines for educators to ensure successful transition. Currently, organizations such as the Association of University Centers on Disabilities (AUCD) and the American Academy of Pediatrics (AAP) are working together to address the lack of transition services for teens with disabilities, particularly in health care. Individual states have also worked to ensure their educational laws conform to the requirements of IDEA (Massachusetts, New Jersey, and New York have implemented regulations concerning the transition process since 1990). Some states have even required more than the federal law concerning transition services. In particular, New York has enacted a regulation stating that transitional support services must be provided to students with ASD at the recommendation of a special education teacher with background in teaching students with autism. Federal law does not require a specific provision of services based on a student’s disability.
In addition to federal and local involvement in providing transition services, the courts also have provided oversight of the IEP transition planning process. During the first decade of the twenty-first century, parents increasingly have brought claims in federal district courts, under the IDEA, seeking monetary awards and compensatory education, as well as adjustments to their child’s IEP and transition plan or its goals. In most cases, the courts have applied a two-part test to analyze the appropriateness of an IEP, and its statement regarding transition services. In order to pass the test, the school district must have complied with the procedures set forth in the IDEA regarding transition services, and the IEP must have been reasonably calculated to provide the child with educational benefits.
The steady but slow increase in these claims is evidence of the court’s growing involvement in the transition process. Currently, there exist no more than 50 cases that discuss transition from school to adulthood for children with disabilities. Of these cases, a mere 15 provide insight into the guidelines and measurements a court uses to determine whether the transition plan (providing for transition to adulthood), was proper. In general, most of the cases involve claims concerning the implementation of a child’s IEP, i.e. whether there was a transition plan or whether it included a statement for transition planning. A few involve claims concerning the content of the transition plan, i.e. whether the child’s IEP was complete in light of a one-page transition plan that abruptly ended mid-sentence. Currently, there are a handful of cases that involve children with ASD. However, the majority of these ASD claims are limited to short-term transition plans, such as a young child’s transition from one district to another, or transition from public to private (or at home) settings. Overall, they fail to explore long-term transition planning, such as preparing an adolescent for employment and/or higher education. Nonetheless, the cases hint at the courts’ future involvement in ensuring each IEP includes an appropriate transition plan; one that hopefully addresses the unique needs of an adolescent with ASD.
Unfortunately, the case law that does exist highlights shortcomings in the area of transition. The cases fail to cover a wide array of disabilities (including ASD as well as other disabilities with behavior, emotional, and learning impairments), and the courts rarely comment or establish measurements for the substance of the transition plan. Further, many important questions are left unanswered, causing a delay in the development of the transition process. For instance, the amount of transition planning required in an IEP to ensure FAPE is still unknown. Courts in the future should aim to answer this question and ensure that a bare transition plan is not the goal of school districts.
On a positive note, the existence of cases that discuss transition, no matter how scarce, is proof that transition claims will become more common over time. Current and upcoming issues that the case law highlights include: (1) improper evaluation methods used in transition planning; (2) the role of the transition coordinator in the transition process; (3) the presence of insufficiently specific goals in the child’s transition plan; (4) distinguishing between state law and federal law in analyzing a proper transition plan; and (5) whether a statement of transition services is sufficient, or whether a separate section in the IEP should be dedicated to the transition plan and its goals.
The above description of the law summarizes the efforts of the legislative bodies, the courts, and school districts to ensure the implementation of transition services. Transition affects every teenager and can be a very exciting experience, but it can also be a difficult experience for those with special needs without the proper resources and support systems. Indeed, for the adolescent with ASD or other disabilities, the need for such resources and supports is critical to success after high-school. As the ASD numbers of older children grow, it is hoped that parents and advocates will seize the potential of the law’s transitional provisions and work to ensure well-tailored transition services are provided to each young adult with ASD and other disabilities.
In addition to being a proud parent of an adolescent daughter with ASD, Sheryl Dicker, JD is Assistant Clinical Professor of Pediatrics and Family and Social Medicine at Albert Einstein College of Medicine, the Children’s Hospital at Montefiore, Rose F. Kennedy University Center for Excellence in Developmental Disabilities. Sheryl has been working for over three decades as an advocate on behalf of those challenged by developmental disabilities, poverty and the child welfare system. Sheryl was appointed by President Clinton to the President’s Committee on Mental Retardation and served as then Governor Clinton’s General Counsel of the Department of Human Services. Before joining the faculty at Einstein, Sheryl was the Executive Director of the NY Permanent Judicial Commission on Justice for Children (the nation’s first children’s commission based in the judiciary).
Kristina Majewski is the sibling of an adolescent with special needs and has a long history of advocacy for individuals with disabilities. Kristina is a law student at Cardozo Law School, Class of 2010 and is a LEND Law Student Fellow at the Einstein College of Medicine.
