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Lighting Up Education Law In Blue, Part 1

  • By:Ron Payne
Ed. Note: This article was authored by Kimberly J. Byrd, Esq., who is a former partner of Payne Law, PLLC and mother of four wonderful children. She can be reached at kbyrd.jdwfu2013@gmail.com

1920020_10152834802288957_7830467909095624489_n-300x206 Lighting Up Education Law In Blue, Part 1

As the rate of autism diagnoses has risen in the United States, the area of law which has most frequently dealt with the condition is education. While little statutory law is currently in effect dealing specifically with autism, many state and federal laws may affect the education of an autistic child. The primary federal laws impacting autistic children in schools include: (1) the Family Educational Rights and Privacy Act (“FERPA”); (2) the Individuals with Disabilities Education Act (“IDEA”); (3) Section 504 of the Rehabilitation Act (“Section 504”); and (4) the Americans with Disabilities Act (“ADA”).

1.  FERPA

Under FERPA, schools receiving federal funding are required to provide students, and their parents, access to their own school records, and opportunity to amend those records. FERPA further requires that students or their parents must consent to any release or disclosure of those records. During an autistic child’s school years, parents can use FERPA to view their child’s records, dispute discrepancies in those records, and restrict access to their child’s records by other parties.

2.  IDEA

The IDEA requires public schools to provide the opportunity to receive a free appropriate public education, in the least restrictive environment, to students identified under one of eleven categories of disability who require special education services to address their disability in order to receive a free appropriate public education. Students eligible under the IDEA may receive special education services from the age of 3 until 21 through an individualized education program (“IEP”). The IEP is developed by an IEP team, which includes parents, administrators, teachers, and other experts as required by the individual student’s needs.

A free appropriate public education (“FAPE”) under the IDEA is defined as “special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program” 20 U.S.C. §1401(9). The FAPE must be provided to a student in the least restrictive environment (“LRE”), which means that whenever possible, students should receive their education in the same environment as their non-disabled peers.

The IDEA establishes a “floor of opportunity” standard for the education of disabled children. Services provided under the IDEA must be “reasonably calculated” to provide the student the benefit of a FAPE, though the Supreme Court has not determined whether these services must simply provide students “some benefit” or a “meaningful benefit” (458 US 176 ). Parents may file suit pro se in federal court on their child’s behalf (550 U.S. 516) but typically only after exhausting their options under their State’s established administrative process (484 U.S. 305). The burden of proving a violation of the IDEA has occurred in administrative hearings rests on parents (546 U.S. 49). While parents can be awarded their attorneys’ fees under some circumstances, any fees spent on expert witnesses are not recoverable under the IDEA (548 U.S. 291). However, parents can be reimbursed for the costs of private school tuition in circumstances where a court determines this to be the appropriate remedy (471 U.S. 359; 20 U.S.C. §1412).

3.  Section 504

Section 504 prohibits exclusion, denial of benefits, and discrimination against qualified disabled individuals in federally funded programs or activities. (29 U.S.C. §794) Regulations promulgated under Section 504 require that schools must provide a free appropriate public education to all qualified students with disabilities under their jurisdiction, regardless of either the nature or severity of the disability. (34 C.F.R. Part 104) A “free appropriate public education” under Section 504 includes both regular and special education, and related services and aids, which are designed to meet the individual student’s needs.

4.  ADA

Title II of the ADA requires that qualified individuals with a disability which substantially limits one or more of their major life activities (42 U.S.C. §12102) must be provided with reasonable accommodations to prevent them from being excluded, denied benefits, or discriminated against by public entities. The range of conditions covered under the ADA is wide, as is the definition of what “major life activities” may be substantially limited by those conditions. An individual is considered “qualified” if they are otherwise eligible to obtain access to or services from the public entity. Reasonable accommodations provided under Title II can include a variety of things, from the provision of assistive technology devices to protection from “peer on peer” harassment or bullying based on a student’s disability.

 

FERPA applies to students, regardless of whether they have been diagnosed with autism or another disability, and enables parents to keep track of what information is contained in their child’s educational record, to monitor the accuracy of that information, and to obtain copies of those records when necessary. This ability to obtain copies of educational records is often very useful when parents find it necessary to challenge decisions made regarding their autistic child under the IDEA, Section 504, or the ADA.

Because of the variability of autism from student to student, it is possible for a student to have a diagnosis of autism yet be found ineligible for the provision of services under the IDEA. This is because the IDEA requires that a student must have both a diagnosis of one of the disabilities set forth in the statute and must also require special education services to obtain educational benefits. Students who have been diagnosed with high-functioning autism or Asperger’s syndrome, while qualifying under the diagnostic criteria of the IDEA, are often determined not to “require” special education services in order to obtain “some” educational benefit. Basically, if an autistic student has developed sufficient coping mechanisms to enable them to get by through the regular education program that is available, courts typically do not require additional services be extended to those students under the IDEA.

If a school system’s evaluation determines that an autistic child does not require special education services to obtain educational benefits, parents can dispute this determination and request a second independent educational evaluation be conducted at the public’s expense. However, regardless of whether an autistic student is extended protection under the IDEA, all students who have been diagnosed with autism may qualify under Section 504 or the ADA for the provision of accommodations on the basis of that diagnosis. Accommodations extended to autistic students can include such assistive technology devices as computer tablets, “wiggle” seats, and standing desks. Section 504 and the ADA are also very useful for students who have other medical conditions in addition to autism which may affect their educational experience.

 

To be continued in our next post – Lighting Up Education Law in Blue, Part 2

autism-blue Lighting Up Education Law In Blue, Part 1

Over the month of April, we will be blogging about several areas of the law and how the law affects, and is affected by, those with autism. We invite you to visit our website, like us on Facebook, follow us on Twitter, and read and share our blog as we do our part to raise autism awareness.

   Join us as we Light Up the Law In Blue.

Posted in: Education