Copyright 2010 Drummond Woodsum. All rights expressly reserved. Preparing Students for Postsecondary Life.

IDEA & Transition

Copyright 2010 Drummond Woodsum. All rights expressly reserved.

Preparing Students for Postsecondary Life

To ensure that schools provide children with disabilities a free appropriate public education designed to “prepare them for further education, employment, and independent living.”

20 U.S.C. § 1400(d)(1)(A)

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Transition - Congressional Purpose

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Basic IDEA Requirements

Focus: to improve “academic and functional achievement to facilitate” movement to post-school activities

20 U.S.C. § 1401(34)◦ The federal law does not define “functional

achievement” Nor does New Hampshire law

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Major Changes in IDEA ‘04

Does the IEP include services/accommodations to address functional skills?

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Tip

Goals Transition service needs and transition

services◦ To assist student in reaching postsecondary goals

20 U.S.C. § 1414(d)(1)(A)(VIII);34 C.F.R. § 300.320(b); Ed 1109.01(a)(10)

◦ In New Hampshire, an IEP must include a vocational education component if vocational education is provided Ed 1109.01(a)(10)

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IEP Provisions – What?

Transition service needs are courses of study

Ed 1109.01(a)(10) Transition services are the non-course

requirements 34 C.F.R. § 300.320(b); Ed 1109.01(a)(10)

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Confusing terms

Transition service needs:◦ Under New Hampshire law, must be addressed in

the IEP which is in effect when the student turns 14 years of age, and updated annually Or earlier if the IEP team determines appropriate

20 U.S.C. § 1414(d)(1)(A)(VIII); 34 C.F.R. § 300.320(b); Ed 1109.01(a)(10)

Transition services:◦ This requirement must be in a student’s IEP which is

in effect when the student turns 16 years of age (and annually thereafter) Or earlier if the IEP team determines appropriate

34 C.F.R. § 300.320(b); Ed 1109.01(a)(10)

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Transition Services & Needs – When?

I think we are talking about ages 13 and 15, generally, for onset of transition obligations

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Time – The Bottom Line

Goals must be based on age appropriate transition assessments related to:

Training Education Employment, and If appropriate, independent living skills and provision of

functional vocational evaluation where appropriate 20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa); 34 C.F.R. §

300.320(b)◦ The federal law does not define “assessment”

New Hampshire law does not either

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Transition Assessments

The goals, assessments and transition services requirements apply even when the student’s skill levels related to training, education and employment are age appropriate

Questions and Answers on Individualized Education Program (IEPs), Evaluations and Reevaluations (OSEP 2007)

◦ Again, addressing independent skills is only necessary when deemed appropriate

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Federal Guidance

Query whether most evaluations that schools conduct address transition service needs at some level?

Tip◦ If true, identify as such

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You Be the Judge

Must be appropriate and measurable Unlike any other IEP goal, these are not

expected to be achieved within the year◦ They are not annual goals

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Goals

Measurable “postsecondary” goals

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Tricky Concept

A student’s interests and preferences do not necessarily dictate the “appropriate” goal

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Common Error

Transition services must be monitored by local school district personnel on at least a weekly basis◦ Ed 1109.03(j)

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Unique N.H. Requirement

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Defining Transition Services

(a) a coordinated set of activities for a child with a disability that—

(1) Is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities

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Transition Services - Defined

Post-secondary education Vocational education Integrated employment

◦ Supported employment Continuing and adult education Adult services Independent living or community

participation 20 U.S.C. § 1401(34); 34 C.F.R. § 300.43(a)(1); Ed

1102.05(m)

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What Are Post-School Activities?

(2) Is based on the individual child’s needs, taking into account the child’s strengths, preferences and interests; and includes

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(i) Instruction;(ii) Related services;(iii) Community experiences;(iv) The development of employment and

other post-school adult living objectives; and

(v) If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.

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(b) Transition services for students with disabilities may be special education, if provided as specially designed instruction, or a related service, if required to assist a child with a disability to benefit from special education.

34 C.F.R. § 300.43(b)

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There is no “transition plan” requirement Lessard v. Wilton-Lyndeborough Coop. Sch. Dist. (1st

Cir. 2008)◦ But New Hampshire Department of Education

forms contain such a plan

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Observe What Is Not There

At least one year before turning the age of majority (generally age 18 or if emancipated minor), school district must advise student of what rights will transfer and include statement in IEP

34 C.F.R. § 300.320(c); Ed 1102.01(f), 1120.01

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Transfer of Rights

Parent of minor Adult student Court appointed guardian, if student is

deemed incompetent Parent/adult student may authorize power

of attorney 34 C.F.R. § 300.520(b); Ed 1120.01©

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Whose Consent?

The public agency must invite the student – if the meeting is intended to address the student’s postsecondary goals and transition services◦ If the student does not attend, then the public

agency must take other measures to solicit student’s interests and preferences

◦ In N.H., that would appear to include younger students when addressing transition service needs (i.e., coursework)

Other participating agency representatives 34 C.F.R. § 300.321(b)

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Team Members

Consent from the parent or adult student must be received prior to releasing personally identifiable information to participating agencies providing or paying for transition services

34 C.F.R. § 300.622(b)(2)◦ According to U.S. Department of Education,

before each IEP team meeting Letter to Gray (OSEP 2008)

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Consent Requirement

If another agency fails to provide transition services as specified in the IEP, school district must convene IEP team meeting to develop alternative strategies to meet transition objectives

20 U.S.C. § 1414(d)(6); 34 C.F.R. § 300.324(c)

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Failure To Meet Transition Objectives

Is often an important skill for a variety of disorders to aid in one’s transition to postsecondary life

34 C.F.R. § 300.39(b)(4)

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Travel Training

Graduation with regular high school diploma

Exceeding age eligibility under State law

20 U.S.C. § 1414(c)(5)(B)(i)◦ School district is not responsible to evaluate

students for postsecondary needs Analysis of 34 C.F.R. § 300.305(e)(2)

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No Re-evaluation - When

It is not a GED 34 C.F.R. § 300.102(a)(3)(iv)

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What Is A Regular High School Diploma?

When eligibility ceases due to graduation or aging out – school district shall provide to the student a summary of the student’s “academic achievement and functional performance” including recommendations to assist student in meeting postsecondary goals

20 U.S.C. § 1414(c)(5)(B)(ii); 34 C.F.R. § 300.305(e)(3)

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Summary of Performance

Student no longer requires special education based on an evaluation

Student ages out (in N.H., age 21) Student graduates with a regular education

diploma◦ The IDEA does not per se tie eligibility to the

student’s failure to achieve his/her IEP goals 20 U.S.C. § 1412(a)(1); 34 C.F.R. § 300.102

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When Does IDEA Cease?

N.H. Department of Education rules require the issuance of a regular education diploma once the student has met all requirements

Ed 306.27(h), (j)

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Graduation in N.H.

“The local school board of each high school shall award a regular high school diploma to all students, with and without disabilities, who have earned at least their local high school’s required units of credit for graduation, selected from the school’s program of studies or comparable classes and courses approved for regular credit by the applicable academic department or school program.”

Ed 306.27(j)

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Graduation for Students on IEPs

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Leading Judicial Opinions

Only U.S. Supreme Court and First Circuit decisions are binding in N.H.

The other decisions may be cited for persuasive authority

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Caution

Courses of study:◦ Court upholds hearing officer decision allowing

school district to change focus of middle school’s academic instruction with heightened attention to independent living skills given student’s serious limitations and IDEA’s transition requirements

J.D.G. v. Colonial Sch. Dist. (D.Del. 2010)

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Transition Service Needs

Even though the IEP of a 12th grade student diagnosed with a learning disability included provisions to address student’s desire to attend college, the fact that she was reading at a sixth grade level did not necessarily mean that the IEP was inappropriate◦ The IDEA does not impose on a school district an

obligation that the student meets here postsecondary goals – here to succeed in college

High v. Exeter Twnshp. Sch. Dist. (E.D.Penn. 2010)

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College Bound & Transition

Transition services must be addressed in an IEP◦ But there is no “transition plan” requirement

Lessard v. Wilton-Lyndeborough Coop. Sch. Dist. (1st Cir. 2008)

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IEP Components

Congress did not alter the Rowley standard requiring that the IEP be designed to enable the student to obtain some educational benefit and that standard applies to transition services

J.L. v. Mercer Island Sch. Dist. (9th Cir. 2010) Lessard v. Wilton-Lyndeborough Coop. Sch. Dist. (1st Cir. 2008) K.C. v. Mansfield Indep. Sch. Dist. (N.D. Texas 2009)

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Level of Benefit

The fact that a student does not meet his/her transition goals does not necessarily mean that s/he has been denied a free appropriate public education

J.L. v. Mercer Island Sch. Dist. (9th Cir. 2010) Doe v. Marlborough Public Schs. (D.Mass. 2010)

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No Obligation to Meet Goals

When measuring the overall appropriateness of an IEP, it would be error to focus on one component, such as transition services

Lessard v. Wilton-Lyndeborough Coop. Sch. Dist. (1st Cir. 2008)

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IEP as a Whole

Generic transition plan which was not individualized, did not take into account student's strengths, preferences and interests, was deficient◦ But did not deny student FAPE◦ Plan included services to address generic goals of

graduation, college attendance and employment Virginia S. v. Department of Ed., State of Hawaii (D. Hawaii 2007) See also Marple Newtown Sch. Dist. v. Rafael N. (E.D.Penn. 2007);

Klein Indep. Sch. Dist. v. Hovem (S.D. Texas 2010)

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Must be Individualized

Are key if the goals are to be appropriate◦ The assessments need not be conducted every

year but must be age appropriate IEP was seriously flawed because the

postsecondary goals were not based on age appropriate assessments

Dracut Sch. Comm. v. Bureau of Special Education Appeals (D.Mass. 2010)

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Transition Assessments

Must be measurable and the IEP must include goals in each area:◦ Education◦ Training◦ Employment, and◦ Independent living, if appropriate

Dracut Sch. Comm. v. Bureau of Special Education Appeals (D.Mass. 2010)

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Postsecondary Goals

Although court criticized IEP’s failure to adequately address student’s transition needs, the parents failed to demonstrate substantive harm to the student

Board of Ed. of Township High Sch. Dist. No. 211 v. Ross (7th Cir. 2007)

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Procedural Flaws Insufficient

School district cannot be faulted for failing to address vocational and independent living when parents insisted that the student would be attending college

Marple Newtown Sch. Dist. v. Rafael N. (E.D.Pa. 2007)

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Plan Addressed Parents’ Desires

Doomed IEP Dracut v. Bureau of Special Education Appeals

(D.Mass. 2010)

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Lack of Community Experiences

Court upholds IEP transition plan that included interagency participation and addressed wide variety of needs for an adult student with developmental delays and mobility impairments

Pace v. Bogalusa City Sch. Bd. (5th Cir. 2003)

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Plan Adequate – Team Adequate

Since the IDEA is limited to preschool, elementary and secondary schools, a school district may not use Part B IDEA funds for postsecondary education◦ But if a State considers enrollment in

postsecondary education a secondary education, Part B funds may be used but then only for special education Letter to Frank (OSEP 2008)

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Use of Part B IDEA Funds

Once a student graduates with a regular education diploma, his/her IDEA eligibility, and right to transition services, ends, even if she is not 21

Yankton v. Schramm (8th Cir. 1996) Doe v. Marlborough Public Schs. (D.Mass. 2010)

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Graduation

Even though graduation with a regular education diploma terminates IDEA eligibility, failure to provide transition services called for in the IEP may lead to award of compensatory education

Klein Indep. Sch. Dist. v. Hovem (S.D. Texas 2010) Dracut Sch. Comm. v. Bureau of Special Education

Appeals (D.Mass. 2010) Susquehanna Township Sch. Dist. v. Frances J. (Pa.

Commw. Ct. 2003)

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Effect of Graduation

Court rules that although student met graduation requirements, he has the right to seek continuing IDEA eligibility if he can demonstrate that school district denied him a free appropriate public education◦ Here, student with learning disability failed to

demonstrate that IEP was not reasonably designed, even if he did not achieve all his IEP goals and objectives and he met state graduation requirements

Doe v. Marlborough Public Schs. (D.Mass. 2010)

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Graduation & Denial of FAPE

Court overturns aspect of hearing officer decision extending student’s IDEA eligibility after ordering issuance of a regular education diploma◦ However, compensatory education services

following his graduation were proper Dracut Sch. Comm. v. Bureau of Special Education

Appeals (D.Mass. 2010)

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Eligibility May Not Be Extended

Since graduation is a “change of placement”, if a parent/adult student challenges the student’s graduation, stay put would apply while parent/adult student appeals decision

Doe v. Marlborough Public Schs. (D.Mass. 2010) See also Dracut Sch. Comm. v. Bureau of Special

Education Appeals (D.Mass. 2010)

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“Stay Put” & Graduation

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