There are several federal laws that protect individuals with autism and their families by ensuring that students on the spectrum have individualized education plans (IEPs) tailored to their specific needs. These laws are a critical underpinning for our public schools, but more can be done to improve educational opportunities for students with autism.
Individuals with Disabilities Education Act (IDEA)
To understand your student’s rights in America’s public schools, it helps to start with one of the primary laws governing the education of students with disabilities: the Individuals with Disabilities Education Act, most recently ammended by the Individuals with Disabilities Education Improvement Act of 2004 (P.L. 108-446). IDEA is the federal law that guarantees a free and appropriate public education (FAPE) in the least restrictive environment for every person with a disability. This means that if you enroll your student in public school, his/her education should come at no cost to you and should be appropriate for his/her age, ability and developmental level.
IDEA is an amended version of the Education for All Handicapped Children Act (P.L. 94-142), passed in 1975. The law’s 2004 reauthorization through IDEIA (P.L. 108-446) further defined children’s rights to educational services and strengthening the role of parents in the educational planning process for their children.
Keep in mind that IDEA establishes that an appropriate educational program must be provided, not necessarily an “ideal” program or the one you feel is best for your student. The law specifies that educational placement should be determined individually for each person based on his/her specific needs, not solely on the diagnosis or category. No one program or amount of services is appropriate for all individuals with disabilities. It is important that you work with the school to obtain the educational support and services your student needs.
Given the rights your student has to educational services, you must keep in mind that IDEA establishes the minimum requirements schools must provide. For states to receive federal funds, they must meet the eligibility funding criteria of IDEA. States may exceed the requirements and provide more services. They cannot, however, provide fewer services or have regulations or practices that contradict the guidelines of IDEA.
IDEA has six principles that provide the framework around which special education services are designed and provided to students with disabilities. These principles include:
- Free and Appropriate Education (FAPE)
- Appropriate Education
- Individualized Education Program (IEP)
- Least Restrictive Environment (LRE)
- Parent and Student Participation in Decision Making
- Procedural Safeguards
Free and Appropriate Education
IDEA guarantees that each student with a disability will have a free and appropriate public education (FAPE) available to him/her. FAPE refers to special education and related services that:
- Have been provided at public expense, under public supervision and direction, and without charge
- Meet the standards of the state educational agency
- Include an appropriate preschool, elementary or secondary school education
- Are provided in conformity with the Individualized Education Program (IEP)
“Appropriate” is the critical word in FAPE – the education that a student with disabilities receives needs to address his/her specific and individual educational needs. As such, what is appropriate for one student may not be appropriate for another. Determining what is appropriate for each student involves several processes as follows:
- First, an individualized evaluation is conducted, the purpose of which is to identify the student’s areas of strength and weakness in as much detail as possible.
- The second step is for the IEP team to discuss and develop an IEP for the student. The team generates and identifies appropriate goals and objectives for the student to work on throughout the year. Furthermore, placement and type of special education and related services appropriate for the student are identified. This decision is based on the goals and objectives that have been developed as well as the student’s individual needs. In addition to specifying an appropriate placement, the team must identify and provide the supplementary aids and services in order for the student to succeed in the given educational setting.
It is important that the student receive an appropriate education and benefit from it. Students with disabilities have a right to related services to help them learn and receive the maximum benefit from their educational programs. Related services, according to IDEIA, consist of “transportation and such developmental, corrective and other supportive services as are required to assist a child with a disability to benefit from special education.” These services are to be determined on an individualized basis, not by the disability or category of the disability.
If a student needs any of these “related services” to benefit from his/her education, they must be written into the IEP. Frequency and duration of services should be included, as well as relevant objectives. Related services as defined by IDEIA may include, but are not limited to the following:
* Counseling services
* Early identification and assessment of disabilities in children
* Medical services (for diagnostic or evaluation purposes only)
* Occupational therapy
* Parent counseling and training
* Physical therapy
* Psychological services
* Rehabilitation counseling
* School health services
* Social work services
* Speech pathology
The regulation does not limit related services to those mentioned above. If a student requires a particular service to benefit from special education and that service is developmental, corrective or supportive, it is also a “related” service and should be provided. It does not have to be expressly listed in the regulation. Examples of these kinds of services may include a full- or part-time aide or assistive technology, such as a computer.
Getting a Copy of IDEA
Copies of the IDEA law and/or regulations are available from the Government Printing Office or may be available at your public library. Your state senator may also be able to provide you with a copy. Or you can visit the website of the Families and Advocates Partnership for Education (FAPE) project, run by the PACER Center and funded by the U.S. Department of Education, or the IDEA Partnerships website for information on the law and its regulations.
IDEA has both statutes and regulations. The IDEA statute is the governing legislation – the language of the law – and the regulations are instructions on how the law is to be enacted. The law explains what conditions exist; the regulations explain how these conditions are applied. For more information, visit http://idea.ed.gov.
FERPA & Section 504
Two other laws governing the educational rights of students with disabilities are the Family Educational Rights and Privacy Act of 1974 (P.L. 93-380) and Section 504 of the Rehabilitation Act of 1973 (P.L. 93-112).
In brief, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of a student’s educational records and outlines rules for inspection and release of information. Section 504 of the Rehabilitation Act protects the civil rights of persons with disabilities, prohibiting discrimination against a person with a disability by an agency receiving federal funds. Students who are defined as “handicapped” but do not require special education services (such as those served under IDEA) can be provided with a 504 plan. An excellent comparison between IDEA and Section 504 can be found here at WETA’s LD Online.
Elementary and Secondary Education Act (ESEA)
The Elementary and Secondary Education Act (ESEA) is the primary law governing education generally, and it has major impacts on education for students with disabilities. Originally enacted in 1965, ESEA has been the legislative vehicle for most educational policy changes and federal funding of schools. This act is reauthorized; the most recent reauthorization was the No Child Left Behind Act (NCLB).
Under NCLB, the Alternate Assessment based on Alternative Achievement Standards (AA-AAS), was created as a state alternate assessment taken by students with the most significant cognitive disabilities. At some point in their academic experience, the majority of students with the most significant cognitive disabilities take this assessment instead of the regular state assessment — some as early as 3rd grade. NCLB regulations allow a certain number of the proficient and advanced scores on these tests to help schools, local education agencies (LEAs) and states meet performance targets based on the percent of students who are proficient in math, language arts and science.
The cap on the number of scores that can be counted for this purpose is calculated by multiplying the number of students taking any state assessment by 1 percent (e.g., the cap for district A with 10,000 students would be 100). However, the test can only be taken by students with disabilities. Roughly 10 percent of the student population has a disability (district A would have about 1,000 students with disabilities). Therefore, this 1 percent cap, which is based on all students, is equal to about 10 percent of students with disabilities (for district A, the cap of 100 would be applied to the 1,000 students with disabilities, so 10 percent of the 1,000 students could have their proficient and advanced scores counted toward the performance target).
There is no limit on the number of students who can take the assessment, but the number of proficient and advanced scores that exceed the cap will be counted as if they were not proficient. Some states have a much higher percentage than 10 percent of students with disabilities in the AA-AAS, since not every student is proficient.
ESEA Reform and Reauthorization
On March 13, 2010 the Obama Administration released its blueprint for revising the Elementary and Secondary Education Act (ESEA); this plan asks states to adopt college- and career-ready standards and reward schools for producing dramatic gains in student achievement. As of August 2013, 40 states and the District of Columbia have received waivers from certain NCLB requirements “in exchange for rigorous and comprehensive State-developed plans designed to improve educational outcomes for all students, close achievement gaps, increase equity, and improve the quality of instruction.”
The Autism Society is working with the Collaboration to Promote Self-Determination on policy recommendations for the upcoming reauthorization of ESEA, which would include a focus to ensure that students taking Alternative Assessments are not denied access to the general curriculum, and other goals promoting the rights of students with disabilities.