Rights

Legal Rights

The Right to Refuse Services

In MA, ABA isn’t legally mandatory even if recommended by a medical professional, or school district staff. In most cases, a caregiver/guardian or a student of legal age can choose “no” to ABA on a 504 plan or IEP. A guardian may include a social worker working for The Department of Children and Families or a foster parent. 

Exceptions (not exhaustive):

  • Students under the age of 18, or are under a conservatorship do not have the legal right to refuse services but can share their needs and preferences with their caregiver(s) or guardian who do have the legal right to make these decisions. Students also can self-advocate at age 14 and older when they have the right to be included at their 504 plan or IEP meeting.

  • Caregivers with a divorce agreement where they have 50/50 decision making rights, and their ex-spouse signed their child’s IEP or 504 plan first. Or where the ex-spouse has 51% medical decision making rights for their child so they can choose the supports and services that their child receives. 

Legal Referrals are available at The Children’s Law Support Service for caregivers/guardians who wish to learn their options for refusing services.

PBIS (positive behavioral intervention and support framework), or PBS (positive behavioral supports) which are off-shoots of ABA, can be embedded in classrooms and in entire school districts. Both PBIS and PBS are considered systematic teaching approaches and not a service. Because of how pervasive PBIS and PBS can be some caregivers choose to home school. Other caregivers choose the public school option, and refuse a number of very specific interventions in their child’s 504 plan or IEP.

The Right to Informed Consent

The federal law IDEA (The Individuals with Disabilities Education Act) contains a section that outlines the legal right of a caregiver to give “informed consent” when choosing to accept or refuse recommended services in their child’s IEP or 504 plan. This essentially means that a parent should be fully informed of all information relevant to the activity for which consent is sought.

The IDEA and the ESSA (Every Student Succeeds Act) requires schools to allow parents to schedule a formal class observation visit. These federal laws mandate that parents have the right to schedule an observation as part of their meaningful participation in determining their child’s educational placement. MA law allows school districts the right to place some limitations on an observation to protect:

  1. The safety of the children in the program during the observation; or

  2. The integrity of the program during the observation; or

  3. Children in the program from disclosure by an observer of confidential personally identifiable information obtained during the observation.

Filing a Complaint

A state’s Department of Elementary and Secondary Education can be contacted to file a complaint, if a school district does not provide adequate information for a caregiver to have informed consent. In MA, a complaint would go through the Problem Resolution System (PRS) Office.

Insurance 

Services for Autistic Young People

ABA is popular partly because it is covered by insurance in MA. The same is true for a wide range of services.

Note: The MA bills that will be discussed below use medicalized language. Although autism is not a disease that requires treatment, but a disability that needs supports, the language used in these bills is “treatments” instead of “services”.

Thanks to the 2010, MA law ARICA, the following “treatments” may be covered by insurance if a child meets the eligibility requirements*:

  • Habilitative or Rehabilitative Care
    Including professional, counseling and guidance services.

  • Pharmacy Care
    Medications and health-related services.

  • Psychiatric and Psychological Care
    Direct or consultative services.

  • Therapeutic Care
    Including speech therapists, occupational therapists, physical therapists or social workers.

*Eligibility Requirements: The law covers “an individual diagnosed with one of the Autism Spectrum Disorders by a licensed physician or a licensed psychologist who determines the care to be medically necessary”.

The 2014, MA Omnibus Law added more insurance coverage, including:

  • A requirement that MassHealth cover “medically necessary treatments for children with autism who are under 21 years old”. This requirement includes AAC devices.

Partly because this insurance coverage can be used to fund individual student services in schools, and there is also additional funding available from the School-Based Medicaid Program (SBMP) there are a range of services available and possible in MA school districts. The Autism Waiver Program in MA, has a range of services available as well, since it is funded by MassHealth.

Supports and Services Not Exclusive to Autism
Students with documentation of disabilities other than, or in addition to autism, may be eligible for MassHealth Child Disability Supplement through MassHealth.

Resource: The American Speech-Language-Hearing Association has a webpage that lists the “State Insurance Mandates for Autism Spectrum Disorder.”

Image Credits: Modified from Freepik.com