Federal Legislation Laws and Legal Issues Regarding individuals with Autism and Education for People with Disabilities

I know the following information may not be too interesting, but it is necessary in understanding what individuals with Autism really go through. 

Federal Legislation Laws Regarding Education for People with Disabilities.

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) that are 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.

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 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 be 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. In 2004, IDEA was reauthorized (P.L. 108-446), further defining 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 their 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 that 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 state 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 available a free and appropriate public education (FAPE). 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 Individual Education Program (IEP)

“Appropriate” is the critical word in FAPE – the education that a student with disabilities receives needs to address his or 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 IEP 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 therefore benefit from that education. 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, as well as relevant objectives, should be included. Related services as defined by IDEIA may include, but are not limited to the following:

* Audiology * 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 * Recreation * Rehabilitation counseling * School health services * Social work services * Speech pathology * Transportation

The regulation does not limit related services to those specifically 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 Web site 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 Web site 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 an explanation of how the law is to be enacted. The law explains what conditions exist; the regulations explain how these conditions are applied.

ADA

The Americans with Disabilities Act (ADA) was created to protect disabled people from discrimination in the workplace and the community at large. The protection in the workplace only extends to those people who are considered qualified to do the job. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications.

Olmstead

Summary of Olmstead v. L.C., 527 U.S. 581 (1999)

The United States Supreme Court decided in an Opinion issued on June 22, 1999, that a State is required under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, to provide community- based treatment for persons with mental disabilities: 1) when the State’s treatment professionals determine that such placement is appropriate, 2) the affected persons do not oppose such placement, and 3) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities. The Court further stated that nothing in the ADA or its implementing regulations requires community placements for persons unable to handle or benefit from community settings.

The Court upheld the Eleventh Circuit decision that Georgia had violated the ADA by forcing two mentally retarded women to remain in a state mental hospital after their treating professionals had determined them ready for discharge, but remanded the case to the District Court for further consideration of the appropriate range of relief available. Although the Olmstead case involved two individuals with a mental disability, the decision is broad in its scope and can be read to apply to all persons with disabilities covered under the ADA.

The Court held that under the ADA, a State must provide community-based services to qualified individuals and must make “reasonable accommodations” in its programs to do so, unless such alterations would constitute a “fundamental alteration” in the services provided. The Court found that the Eleventh Circuit’s determination that “a cost justification was permissible only in the most limited of circumstances” was too restrictive and would leave the State practically defenseless. The Court instead found that if a State could demonstrate that it has a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the fundamental alteration prong of the reasonable-modifications standard would be met.

In evaluating a State’s fundamental alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the State’s responsibility for maintaining a range of facilities for the care of persons with diverse mental disabilities, and its obligation to mete out those services equitably. The Court specifically recognized that a simple comparison of the cost for providing care for the litigants in the community with the cost of that care in an institution was not sufficient. A State may experience increased overall expenses by funding community placements without being able to take advantage of the savings associated with the closure of institutions.

Community-Based Alternatives for Individuals with Disabilities

President Bush issued his Executive Order on Community-Based Alternatives for Individuals with Disabilities on June 18, 2001, finding that "[u]njustified isolation or segregation of qualified individuals with disabilities through institutionalization is a form of disability-based discrimination prohibited by Title II of the Americans with Disabilities Act of 1990." The President further stated that the federal government must assist the States and localities to implement swiftly the Olmstead decision to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment, and to participate in community life.

The President ordered the Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of Social Security to work cooperatively together and with the states by providing technical assistance to help them assess compliance with Olmstead and achieve the goals of Title II of the ADA. The Secretary of Health and Human Services is designated as the lead secretariat in these efforts.

Each of the above federal agencies was required to evaluate their own policies, programs, statutes and regulations to determine whether any should be revised or modified to improve the availability of community-based services. This preliminary review, Delivering on the Promise: Preliminary Report, was completed January 2, 2002, and may be found along with other information at

Finally, the Attorney General and the HHS Secretary are ordered to fully enforce Title II of the ADA, including investigating and resolving complaints filed on behalf of individuals, working whenever possible cooperatively with the States and using alternative dispute resolution to resolve the complaints.

The Department of Health and Human Services' Office of Civil Rights has been investigating complaints of violations of the ADA since the Olmstead decision in 1999 and offering to provide technical assistance to the states in the development of Olmstead plans. The Olmstead decision itself does not require an Olmstead plan, but the Supreme Court held that a State could successfully defend itself if it has a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings, and a waiting list that moves at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated.

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 inspection and release of information. Section 504 of the Rehabilitation Act protects the civil rights of persons with disabilities. It prohibits 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 students served under IDEA) can be provided with a 504 plan. An excellent comparison between IDEA and Section 504 can be found at

Elementary and Secondary Education Act (ESEA).ESEA is the primary law governing education generally and has major impacts on education for students with disabilities. Originally enacted in 1964, ESEA has been the legislative vehicle for most educational policy changes and is the means of federal funding of schools. This act is reauthorized and the most recent reauthorization was the No Child Left Behind Act (NCBL).

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. Regulations under NCLB allow a certain number of the proficient and advanced scores on these tests to be used 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  number for district A with10,000 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 a number 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.

Reauthorization of ESEA

On March 13, the Obama Administration released its blueprint for revising the Elementary and Secondary Education Act (ESEA), which would ask states to adopt college- and career-ready standards and reward schools for producing dramatic gains in student achievement.

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.

Laws Regarding Employment for People with Disabilities Rehabilitation Act

The Rehabilitation Act is the federal legislation that authorizes the formula grant programs of vocational rehabilitation, supported employment, independent living, and client assistance. It also authorizes a variety of training and service discretionary grants administered by the Rehabilitation Services Administration.

The Act authorizes research activities that are administered by the National Institute on Disability and Rehabilitation Research and the work of the National Council on Disability. The Act also includes a variety of provisions focused on rights, advocacy and protections for individuals with disabilities.

The Rehabilitation Act authorizes funding for various disability-related purposes and activities, including state vocational rehabilitation (VR) programs, independent living programs, training and research, and the work of the National Council on Disability. It also includes three sections that prohibit discrimination against individuals with disabilities by specific types of employers: federal agencies, employers/businesses contracting with federal agencies and programs receiving federal financial assistance.

Section 501 of the Rehabilitation Act prohibits federal employers from discriminating against qualified individuals with disabilities and requires them to take affirmative action to employ and advance in employment qualified individuals with disabilities.

Additional Information: Each federal agency enforces Section 501 for its own job applicants and/or employees. For additional information on specific Section 501 policies, contact the relevant agency’s Equal Employment Opportunity (EEO) office.

Section 503 of the Rehabilitation Act prohibits employment discrimination based on disability and requires affirmative action in the hiring, placement and advancement of people with disabilities by federal contractors or subcontractors who have federal contracts or subcontracts in excess of $10,000.

Additional Information:

The Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor’s Employment Standards Administration enforces Section 503.

Section 504 of the Rehabilitation Act prohibits discrimination against qualified individuals with disabilities by federal agencies, or by programs or activities that receive federal financial assistance or are conducted by a federal agency.

Additional Information: The federal agency providing the financial assistance or conducting the program/activity enforces Section 504. For additional information on specific Section 504 policies, contact the relevant agency’s EEO office.

Workforce Investment Act

The Workforce Investment Act (WIA) consolidates federal job training and employment programs, bringing together a wide range of employment services, vocational rehabilitation, adult education, welfare-to-work and vocational education activities into a nationwide system of One-Stop Career Centers. WIA’s Section 188 prohibits discrimination against individuals with disabilities who apply for, participate in or are employees of any program or organization that receives federal financial assistance under WIA or that provides programs/activities as part of the One-Stop system.

The key principles in WIA include:

Streamlining services: Programs and providers co-locate, coordinate and integrate activities and information, so that the system as a whole is coherent and accessible. Empowering individuals: Eligible adults are given financial power to use Individual Training Accounts (ITAs) at qualified institutions and individuals are empowered through the advice, guidance and support available through the One-Stop system, and the activities of One-Stop partners.

Universal Access: All individuals have access to core employment-related services. This includes information about job vacancies, career options, student financial aid, relevant employment trends, and instruction on how to conduct a job search, write a resume or interview with an employer.

Civil Service Reform Act

The Civil Service Reform Act (CSRA), which covers most federal agencies, contains several rules designed to promote fairness in federal personnel actions and prohibit discrimination against applicants and employees with disabilities.

Additional Information: The CSRA is enforced by both the U.S. Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB). Both agencies provide general guidance on their Web sites. In addition, the Office of Personnel Management has helpful information on the CSRA in Federal Employment of People with Disabilities in an online guide.

Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) is administered by the Wage and Hour Division (WHD). The Act establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. Section 14(c) of the FLSA authorizes employers, after receiving a certificate from the Wage and Hour Division, to pay special minimum wages – wages less than the federal minimum wage – to workers who have disabilities for the work being performed. The certificate also allows the payment of wages that are less than the prevailing wage to workers who have disabilities for the work being performed on contracts subject to the McNamara-O’Hara Service Contract Act (SCA) and the Walsh-Healey Public Contracts Act (PCA).

TWWIIA

The Ticket to Work and Work Incentives Improvement Act of 1999 (TWIIA), which, among other things, provides states with the option of allowing people with disabilities to retain Medicaid while working (often referred to as a Medicaid buy-in).

Employment

The Autism Society firmly believes that Congress should vigorously pursue Employment First principles. Employment First is a service delivery strategy regarding the use of public funding for persons with disabilities, including persons with the most significant disabilities, which effectuates on a systemic basis the principles set out below. The strategy supports the primary or preferred employment outcome of competitive, integrated employment for persons with disabilities, including those with the most significant disabilities. The strategy includes the issuance and implementation of policies, practices, and procedures promulgated through federal and state statutes, regulations, and/or operational procedures, including policies, practices, and procedures requiring that systems have a statutory responsibility to provide services that align their reimbursement practices, policies and guidance to incent, encourage and fund services and supports that lead to competitive, integrated employment.

1. Disability is a natural part of the human experience that in no way diminishes the right of individuals with disabilities, including individuals with the most significant disabilities, to achieve the four goals of disability policy—equality of opportunity, full participation, independent living and economic self-sufficiency.

2. Self-determination and informed consumer choice are essential elements in all programs and service options related to employment.

3. Employment, or work for pay, is a valued activity both for individuals and society. Employment provides both tangible and intangible benefits. Employment helps people achieve independence and economic self-sufficiency. Employment also gives people purpose, dignity, self-esteem, and a sense of accomplishment and pride.

4. All individuals, including individuals with the most significant disabilities, should enjoy every opportunity to be employed in the workforce, pursue careers, advance professionally, and engage actively in the economic marketplace.

5. Individuals with disabilities, including individuals with the most significant disabilities, should be empowered to attain integrated employment with the highest possible wage with benefits, consistent with their interests, strengths, priorities, abilities, and capabilities.

6. It is presumed that all individuals with disabilities, including individuals with the most significant disabilities, can achieve competitive, integrated employment with appropriate services and supports.

7. Employment-related training services and supports should be provided to assist individuals with the most significant disabilities to become employed with a priority for competitive, integrated employment.

8. Based on information from the employment marketplace, services and supports related to the provision of employment and training should target areas of present and future workforce growth. Input from employers and knowledge of the marketplace is critical to effectively direct employment-related training and services.

9. Service providers are expected to use best, promising, emerging practices with respect to the provision of employment-related services and supports.

10. Technical assistance should be available to service providers for the purpose of expanding and improving their capacity to provide supported employment, customized employment, and other services and supports that will enhance opportunities for competitive, integrated employment consistent with best, promising and emerging practices.

11. Supports should be provided for as long as needed.

12. The prioritization of competitive, integrated employment must reflect an establishment of

infrastructure and resource allocations that coordinates multiple systems through an alignment of common objectives, targeted outcomes, performance measures and funding mechanisms while simultaneously ensuring a seamless delivery of supports and services at an individual level.

13. Exploitation of workers with disabilities is abhorrent and workers should enjoy meaningful and effective protections against exploitation.

In addition, the Autism Society believes that Congress should reauthorize the Rehabilitation Act and take the following actions to strengthen the collaboration of state and federal programs involving the employment of individuals with autism:

Maintain and ensure oversight and enforcement of existing civil rights protections of Section 504 of the Rehabilitation Act as they relate to workforce development services;

Expand transition authority for students age 14 and above to better prepare them for meaningful and productive lives as adults; Strengthen coordination of the Ticket to Work Program provisions within the Rehabilitation Act and other federal programs;

Reauthorize the Javits-Wagner-O’Day and Randolph-Shepherd Acts with a focus on developing integrated employment opportunities with adequate pay and benefits for individuals with a full range of disabilities, including those with autism; Maintain and increase funding for the Supported Employment State Grants program; and Eliminate remaining work disincentives for people with autism who depend on Social Security disability programs.

Housing

More states are developing Home of Your Own (HOYO) Coalitions to help improve homeownership opportunities for individuals with disabilities. For example, the Maryland Department of Housing and Community Development worked with the HOYO Coalition to develop a Homeownership for Individuals with Disabilities Program that provides low-interest mortgages to qualified low-income individuals with disabilities. The program helps caregivers to work around several housing barriers including: nontraditional income sources such as SSI and SSDI; a lack of downpayment and closing costs; no credit history or an erratic credit history; potentially large medical bills; and low income.

For caregivers who can help adult family members on the spectrum purchase their own home, FannieMae’s HomeChoice mortgage is one tool to facilitate the process. Although the mortgage has a standard interest rate, it allows cosigners, offers some flexible underwriting and is not restricted to a first home. In addition, Congress passed a bill making it possible for Public Housing Agencies (PHAs) to use Section 8 rental vouchers as homeownership vouchers.

Education

Within the law, there are specific procedural safeguards to protect your child's rights. If you and the school disagree on the placement, educational program or other areas surrounding your child's education, you may want to utilize one or more of the following approaches:

Discussion or conference with school staff. Staff may include the teachers, counselors or principal. An Individualized Education Plan (IEP) review. You may request an IEP review at any time. Negotiation or mediation. Mediation is a voluntary process as described in IDEA in which a neutral third person (mediator) assists parties (parents and the school) to work together to resolve their dispute. All states must have a mediation process that meets the requirements of IDEA, including maintaining a list of qualified mediators and bearing the cost of the mediation process. Neither party is required to use mediation. The mediator cannot force either party to accept a resolution to the dispute. If a mutually satisfactory agreement is reached on some or all of the issues, a written agreement is set forth. Discussions that occur in mediation are confidential and may not be used as evidence in subsequent proceedings. Mediation must be available as a dispute resolution option, but may not be used to deny or delay the parental right to a due process hearing.

Due process hearing. You may request a due process hearing if you do not agree with your child's identification, evaluation, or educational placement. This is a legal proceeding, and you should obtain legal advice. Complaint resolution procedures. Any individual or organization may file a complaint alleging that the local educational agency has violated a requirement of IDEA. The complaint must be written and signed, and must cite the specific IDEA requirement that was violated and the facts upon which the allegation is made. The state educational agency must resolve the issues of the complaint within 60 calendar days after it is filed.

Once the IEP is completed, ongoing communication between school and parents is essential to a child's success. The family and school need to work together for the child to receive maximum benefit. The IEP is a working document that can change. It should represent a program flexible enough to respond to the changing needs and skills of the person with autism. The IEP team can meet to discuss changes or additions to a child's plan at any time. The child's parents or school representatives may request a meeting when either party feels the IEP needs to be adjusted to a child's current needs.

Many parents seek out assistance from education or disability advocates. To help you better understand your child's rights under federal law and more effectively communicate with professionals regarding your child's education, each state has a federally funded Parent Training Information Center (PTI) that provides information and assistance to parents facing the educational process. PTIs are designed to teach parents basic advocacy techniques and encourage them to become full participants in their child's education. These organizations, which are sometimes administered through other disability organizations such as Easter Seals or the ARC, can help parents gain confidence in advocating for their children's rights. Many useful support agencies can be found in the Autism Society's state pages

Every state also has a Protection and Advocacy Agency. Originally, these agencies were set up to protect individuals with disabilities from abuse and neglect; however, their scope is much broader now. In many of the agencies, their advocacy centers around helping families obtain free, appropriate, public education for their children. State Protection and Advocacy Agencies offer training, case management, and legal counsel in many instances. You can find contact information for the Protection and Advocacy agency in your state at

The is also a resource of information on education rights. 

Source: http://www.autism-society.org/living-with-autism/navigating-services/