Articles By Our Attorneys

Printable Version | Other Articles

Legal Issues Relating to Transition Planning and Post-Age 21 Services for Individuals With Autism

By Dennis C. McAndrews, Esquire

| Next Page | 3 | 4 | 5 |

I. Introduction

The difficulties in transitioning individuals with Autism from school age to post-school programming are particularly acute and present serious challenges to their families. Under the Individuals with Disabilities Education Act (IDEA), children with Autism can generally receive special education and related services through their local school district from identification of the disability until age twenty-one (3- 21). Beginning no later than age sixteen (16), school districts are required to begin transition planning for children with disabilities. Under amendments to IDEA in 1999 and 2004, transition planning is required to be far more robust than in the past, and school districts are required to conduct meaningful assessments of students to identify the specific instruction and services which students will receive to become independent and self-sufficient at graduation.

Unfortunately, transition planning is rarely extensive within this Commonwealth, but typically involves providing limited information to families about agencies such as MH/MR, the Office of Vocation Rehabilitation, and other programs which serve adults with disabilities. Unless a parent vigorously advocates with knowledge and skill on behalf of the child, transition planning seldom involves the intensive assessment, instruction, and services which IDEA specifically requires. More and more parents are pursuing due process hearings against their local school districts over this very issue, because transition is so critical in moving a child with disabilities to independence and self-sufficiency.

Once the child reaches the age of twenty-one (21), families encounter an entirely new set of roadblocks as they move from the educational system to the Mental Health/Mental Retardation system, which until very recently has been the only adult system which might serve adults with Autism. Although many individuals with Autism could qualify for services within the MH/MR system because of limited cognitive or social skills/adaptive behaviors, county agencies often assert that they have no responsibility to individuals within the Autism spectrum. Unfortunately, no user-friendly dispute resolution system exists in the MH/MR program--such as in the educational due process system--to challenge decisions made by county agencies, and therefore determinations of county agencies are effectively final unless the family hires an attorney to pursue a claim in the local Court of Common Pleas. Even then, no clear legal structure exists upon which the court can adjudicate such matters short of a commitment petition.

In order to address these deficiencies, the Department of Education should conduct intensive monitoring of school district transition programs, and legislation should be proposed to create a clear, independent, fair and user-friendly system by which individuals can contest the determinations of county administrators concerning eligibility and entitlement to services.

II. Historical Overview

The movement to educate children with disabilities as an entitlement took root in the early 1970s with the court decisions in PARC v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), 343 F.Supp. 279 (E.D. Pa. 1972), and Mills v. Board of Education, 348 F. Supp. 866 (D. D.C. 1972). However, the nationwide commitment to educating all children with disabilities was not established until the Education for All Handicapped Children Act (EHA) of 1975. Public Law 94-142, currently codified as amended at 20 U.S.C. Section 1400 et. seq. The EHA guaranteed access to public education for all school-age children (generally between the ages of six and eighteen), and with broader age ranges in states which provided guarantees to younger or older children (most typically, the ages of 5 to 21). The overwhelming emphasis of the EHA was to provide “access” to special education for children with disabilities, as over a million children with disabilities received no educational programming in 1975.

The EHA did not mandate transition services to establish a “bridge” between services provided to school age children and post-graduation life. Notably, in most states, the great majority of programs for adults with disabilities in 1975 included only institutional services in large, segregated, remote institutions which often involved inhumane treatment in overcrowded settings, or living with family members in circumstances where the person with disabilities rarely left home, either for lack of support services to permit integration with the community or due to nonacceptance by the community of persons with disabilities.

In 1990, Congress first mandated transition services via the “Education of the Handicapped Act Amendments of 1990" which also retitled the statute as “The Individuals With Disabilities Education Act” (IDEA). The 1990 Act amended the definition of “Individualized Education Program” to require that Individualized Education Plans (IEPs) provide “a statement of the needed transition services for students beginning no later than age 16 and annually thereafter (and, when determined appropriate for the individual, beginning at age 14 or younger), including, when appropriate, a statement of the interagency’s responsibilities or linkages (or both) before the student leaves the school setting”. Transition services were further defined as:

A coordinated set of activities for a student, designed with an outcome-oriented process, which promotes movement from school to post-school activities, including post secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. A coordinated set of activities shall be based upon the individual student’s needs, taking into account the student’s preferences and interests, and shall include instruction, community experiences, the development of employment and other post-school living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

| Next Page | 3 | 4 | 5 |

Back to Top