The Massachusetts Legislature recently passed the Autism Omnibus Bill. Massachusetts Advocates for Children, which provided vital advocacy in support of the Bill, has summarized the key provisions as follows:
- A requirement that MassHealth cover medically necessary treatments for children with ASD who are under 21 years old – including ABA therapies as well as dedicated and non-dedicated AAC devices;
- Extension of Department of Developmental Services (DDS) eligibility to many persons with Autism, Prader Willi Syndrome and Smith-Magenis syndrome;
- The creation of an Autism Endorsement for special education teachers to enable them to voluntarily gain in-depth knowledge about the complexities of educating students with ASD;
- The creation of tax-free saving accounts (called “Achieving a Better Life Experience” or ABLE) to help families cover anticipated disability-related expenses for individuals with ASD and other physical and developmental disabilities;
- Requiring DMH and DDS to develop and implement a plan to provide services to individuals who have both a mental illness and a developmental disabilities; and
- Establishing the Autism Commission as a permanent entity.
Mass Advocates has also published:
- A fact sheet, which you can find here: Mass Advocates Fact Sheet; and
- The complete Bill, which you can find here: Autism Omnibus Bill.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
For a child to be eligible for special education services, all of the following must be true:
- The child must be between the age ranges specified by federal and state law:
- Massachusetts: Ages 3 – 21, inclusive. 20 U.S.C. 1412(a)(1)(A) and 603 C.M.R. 28.02(9).
- New Hampshire: Ages 3 – 20, inclusive. New Hampshire also requires the identification and evaluation of special education students starting at age 2.5, so that an IEP can be in place immediately upon reaching age 3. Ed 1105.
- The child must have a disability (see below for more information);
- The child must not be making effective progress in regular education due to that disability; and
- The child requires specially designed instruction or a related service.
To qualify as a child with a disability for special education purposes, your child’s disability must be categorized according to terms set out under the Individuals with Disabilities Education Act (“IDEA”) or under state law. New Hampshire follows the IDEA categories, which are:
- intellectual disabilities,
- hearing impairments (including deafness),
- speech or language impairments,
- visual impairments (including blindness),
- serious emotional disturbance (referred to in IDEA as “emotional disturbance”),
- orthopedic impairments,
- traumatic brain injury,
- other health impairments, or
- specific learning disabilities.
20 U.S.C. 1401(3)(A); 34 CFR 300.8.
New Hampshire also recognizes developmental delays in children ages 3 – 9 as a disability category. 20 U.S.C. 1401(3)(B); 34 C.F.R. 300.8(b); RSA 186-C:2, I-a.
Massachusetts has its own disability category list, which is as follows (603 C.M.R. 28.02(7)):
- developmental delay,
- intellectual impairment,
- sensory impairment (including hearing impairment, deafness, visual impairment, and blindness),
- neurological impairment,
- emotional impairment,
- communication impairment,
- physical impairment,
- health impairment, or
- specific learning disabilities.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
During my presentation on Special Education Law and Asperger’s Syndrome at yesterday’s AANE conference, a very interesting question arose. An attendee asked who can diagnosis a disability. That question seems simple enough, but the answer is not so simple.
The reason he asked the question was that his IEP Team told him that the school system is not able to diagnose a disability – they claimed that it is up to the parents to get that diagnosis privately. I see this often at Team meetings. In general, it is not true. The evaluation that the school system performs will likely include a psychological evaluation, an educational evaluation, input from parents and teachers, and possibly a medical evaluation by a physician (at school expense!).
The school system is perfectly capable of diagnosing a learning disability. On the other hand, it is in no position to diagnosis a physical ailment that only a physician can diagnose. Autism Spectrum Disorder (ASD) is in between. According to IDEA, “Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.” 34 C.F.R. 308(c)(1)(i). A developmental disability is generally defined as a mental or physical impairment identified prior to age 18. A qualified psychologist – and one would assume that a school psychologist is qualified – should be able to diagnose autism.
What’s even more interesting, and beneficial to parents when the school is refusing to diagnose autism, is 34 C.F.R. 308(c)(1)(iii): “A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.” So, even if the child has not been formally diagnosed with autism – regardless of who should have done the diagnosis – if the child “manifests the characteristics of autism,” the Team could then identify the child as having autism, and treat him or her as such.
Please visit my web site for more information about the Law Office of James M. Baron: http://www.lawbaron.com.