Changes to the 2006 Final IDEA Part B Regulations Regarding the Role of Adult Services Organizations in the IEP Process

The 2006 final IDEA Part B regulations removed the 1999 requirement that "[i]f an agency invited to send a representative to a meeting does not do so, the [school district] shall take other steps to obtain participation of the other agency in the planning of any transition services." The IDEA never gave schools authority to compel another agency to participate in transition service planning. Furthermore, neither the IDEA nor case law offered useful guidance as to what those "other steps" might constitute. The Department of Education justified removing the requirement in the comments and discussion section of the 2006 regulations: "The Act has never given public agencies [such as school districts] the authority to compel other agencies to paritcipate in the planning of tranistion services for a child with a disability...Without the authority to compel other agencies to particpate in the planning of tranistion services, public agencies have not been able to meet the requirement...to 'ensure' the participation of other agencies in transition planning. Therfore, while we believe that public agencies should take steps to obtain the pariticpation of other agencies in the planning of transition services for the child, we believe it is unhelpful to retain [the 1999 regulation]." 71 Federal Register page 46, 672 (2006).

Transition Services Must be Provided Despite Student's Completion of Academic Requirements for Graduation

In Susquehanna Township School District v. Frances J. and Charles J. ex rel. Jelani J., 39 IDELR 5 (Pennsylvania Commonwealth Circuit Court 2003), a state court ruled in favor of a student and ordered a local school district to pay for one-year of a college prep program included in the student's transition plan. The district contended it owed no further duty to provide the student a free and appropriate education since the student had already graduated. The review panel indicated that transition services had not been provided as delineated in the student's IEP; therefore, all requirements of graduation had not been fulfilled and the district was obligated to provide the services.

Transition IEPs and Expressed Needs, Preferences, and Interests

In Sinan v. School District of Philadelphia, 48 IDELR 97 (E.D. Pa. 2007), the parents of a 19-year-old special education student contended the district failed to mention vocational and practical living goals in their child's IEP; therefore, the transition plan was incomplete. According to the parents, IDEA obligated the district to plan for a student's postsecondary vocational and practical training regardless of the expressed desires of the parents. According to the district, the plan called for the student to meet with college guidance counselors and that the transition plan was limited to college preparation rather than vocational goals at the parents' insistence. Observing that "case law does not offer strong support for the plaintiffs' proposition that the district has an affirmative duty to provide for vocational and practical training in all transition plans, without regard to a student's individual needs and preferences," the court held that "the transition plan's focus on college planning was appropropriate given [the student's] needs, preferences and interests at the time."

Transition Goals Cannot Be Vague or Generic

In Marple Newton School District v. Rafael N. ex rel R.N., 48 IDELR 184 (E.D. Pa 2007), a court concluded that an IEP was deficient because there were no "measurable postsecondary goals related to training, education, employment, and independent living skills for a Spanish-speaking mild to moderately retarded 17-year-old special education student with untreatable epilepsy. With regard to the IEP, the court stated the "goals are vague and do not capitalize on the student's strengths or specific interests." Furthermore, the student's IEP "states generic goals that have remained static from year to year. There were no vocational or independent learning outcomes in the community component of the IEP, there was no component to prepare the student for medical self-monitoring, and the IEP did not "take into account the student's strengths or preferences."

IEP teams need to be mindful when creating transition plans and ensure that each one is individualized and meaningful.

Texas Transition Plan was Designed to Provide FAPE

In K.C. b/n/f M.S. and W.C. v. Mansfield Independent School District, 52 IDELR 103, 618 F. Supp. 2d 568 (N.D. Texas 2009), the court held a transition plan was reasonably calculated to provide FAPE as it reflected the student's skills and interests, and included a series of practical goals that would help the student transition upon graduation. Subsequently, the district held no obligation to pay for the student's placement in a music academy for students with cognitive disabilities. The plaintiffs alleged the district disregarded a teenager's interest in music when developing her transition plan. The court determined the transition plan reflected the student's strong interests in fashion and child care and was reasonably calculated to help her meet her post-secondary goals based on the results of an occupational assessment provided by the district which indicated the student had both a high skill level and interest in the area of fashion, child care, and child development. The assessment also revealed a high interest in the performing arts but the skill score was "very low". Considering the results of the assessment, the IEP team developed a transition plan indicating the student would work in a clothing store and as a classroom aide in an elementary school music class. The student was dissatisfied with placement in the music class which was subsequently discontinued the following year so the district added one-on-one music instruction to the IEP. The court concluded the transition plan was based on an Occupational Assessment and was reasonably calculated to provide FAPE.

A Visit to Seneca High School

Yesterday I was able to observe a very engaging lesson in a resource classroom at Seneca High School. I arrived just before the bell initiating third period. It was evident non-instructional routines had been established as students knew where to find their notebooks. Before beginning instruction, the teacher explained what the class would do over the course of the next 90 minutes. The first item on the agenda included journal writing in response to real-world debatable issues. The teacher reviewed the questions students were expected to answer after watching CNN video clips. One video clip surrounded the controversy of whether or not suspected 9-11 terrorists should be tried in New York just blocks away from where the twin towers used to stand. The other video clip spotlighted a story where a student from another state was suspended for coming to school with his favorite football team's logo shaved into head. The teacher showed each clip separately reviewing the questions before, between and after watching the videos. The teacher then led an engaging discussion surrounding each debate asking students to share their views or interpretation. The teacher made sure every student participated and had an understanding of each controversial isssue. Unfortunately, I needed to leave before a review of y=mx + b, but I was so glad I was able to visit this teacher's class and strongly believe the students enjoyed the lesson as much as I did.

Self-sufficiency Standard is Refuted by 9th Circuit

The 9th Circuit Court affirmed that IDEA '97 did not raise the Rowley standard for determining whether an IEP offered a free and appropriate education (FAPE) when it overturned a District Court granting reimbursement to the student. The District Court held that by its description of transition services as intending to foster independent living and economic self-sufficiency IDEA '97 had adopted a new standard of FAPE. The Circuit Court stated:

"We conclude that the District Court misinterpreted Congress' intent. Had Congress sought to change the free appropriate public education 'educational benefit' standard--a standard that courts have followed vis-a-vis Rowley since 1982--it would have expressed a clear intent to do so. Instead, three omissions suggest that Congress intended to keep Rowley intact. First, Congress did not change the definition of a free appropriate public education in any material respect. If Congress desired to change the free appropriate public education standard, the most logical way to do so would have been to amend the free appropriate public education definition itself. Second, Congress did not indicate in its definition of 'transition services', or elsewhere, that a disabled student could not receive a free appropriate public education absent the attainment of transition goals. Third, Congress did not express disagreement with the 'educational benefit' standard or indicate that it sought to supercede Rowley. In fact, Congress did not even mention Rowley. J.L. v. Mercer Island School District, 52 IDELR 241 (9th Circuit 2009).

How Can the SOP Assist the Voc Rehab Services Program in the Provision of Transition Services to Eligible VR Students with Disabilities?

According to Questions and Answers on Secondary Transition, 52 IDELR 230 (June 1, 2009), in addition to providing information that may be used to determine a student's eligibility for VR services, the Summary of Performance (SOP) serves as a functional document that provides the Vocational Rehabilitation Services Program with information describing a student's vocational, employment, academic and personal achievements as well as vocational and employment supports needed by the student.
If determined to be eligible to receive VR services, the student, with the assistance of a VR counselor, develops an individualized plan for employment (IPE) to achieve a specific employment outcome. A SOP may facilitate the development of a meaningful IPE by providing information that describes the student's secondary and psotsecondary goals, career interests, levels of academic performance, need for reasonable accommodations for work, and the functional levels of the student's social and independent living skills, at the time of completion of secondary education.
In general, a SOP that informs the State VR Services program of the student's academic and vocational functional performance may minimize delays in the transition service delivery system and better prepare the student for a successful career.

What Obligations Does an LEA Have With Regard to the Summary of Performance and Vocational Rehabilitation and/or Post-secondary Accommodations?

According to Questions and Answers on Secondary Transition, 52 IDELR 230 (June 1, 2009), Section 614(c)(5) of the IDEA does not require the LEA to include in the Summary of Performance (SOP) the documentation necessary to determine a child's eligibility for another program or service, such as the State Vocational Rehabilitation Services Program (VR), or the child's need for accommodations in college or in other post secondary educational settings. However, the SOP may include information that may assist another program to determine a student's eligibility for services or accommodations. For example, section 102(a)(4) of the Rehabilitation Act of 1973, as amended, requires the State VR Services program to use information submitted by education officials to assist in making eligibility determinations for students with disabilities. The SOP is one of the educational records that may be used to provide information to determine a student's eligibility for VR services.
A postsecondary student who has identified him or herself as an individual with a disability and has requested academic adjustments, auxiliary aids or modifications of policies, practices or procedures from an institution of postsecondary education may, consistent with an institution's documentation requirements, provide the institution with the SOP as part of the documentation to be used by the institution to determine whether the student has an impairment that substantially limits a major life activity, as defined under Section 504 of the Rehabilitation Act (Section 504) and/or the Americans with Disabilities Act (ADA), and requires academic adjustments as defined in the Section 504 regulations at 34 CFR Section 104.44. Institutions may set their own requirements for documentation so long as they are reasonable and comply with Section 504 and the ADA.

Does a General Educational Development Credential (GED) or Alternate Diploma Trigger the Creation of a Summary of Performance (SOP)?

According to Questions and Answers on Secondary Transition, 52 IDELR 230 (June 1, 2009), the answer is "no". A public agency, pursuant to 34 CFR Section 300.305(e)(3), must provide a child whose eligibility for services under Part B of the IDEA terminates due to graduation from secondary school with a regular diploma, or due to exceeding the age of eligibility for a free appropriate public education (FAPE) under state law, with a summary of the child's academic achievement and functional performance. This Part B requirement does not apply to the group of children who leave secondary school with a GED credential or alternate diploma and whose eligibility for services under Part B has not terminated. See 34 CFR Section 300.102(a)(3)(iv), which clarifies that a regular high school diploma does not include alternate degrees, such as GED credential.

What is the Purpose of a Summary of Performance (SOP) and What are the Requirements for Content?

According to Questions and Answers on Secondary Transition, 52 IDELR 230 (June 1, 2009), the purpose of the SOP is to provide the child with a summary of the child's academic achievement and functional performance in order to assist the child to transition beyond high school. The SOP must include recommendations on how to assist the child in meeting his or her postsecondary goals. The Individuals with Disabilities Education Act does not otherwise specify the information that must be incuded in the SOP; rather, state and local officials have the flexibility to determine the appropriate content to be included in a child's SOP, based on the child's individual needs and postsecondary goals.

IEP Drop-in At Fair-Oak Elementary

Yesterday was a great day. I was able to participate in an IEP meeting at Fair-Oak Elementary. The student used to be one of mine as a 3-year-old! Throughout the meeting it was evident that every member of the team genuinely cared about the student and his progress. It was as if he was centered in the circle of chairs to the right. Undoubtedly, each educator put a lot of thought, planning, and collaboration time in prior to the meeting as each communicated professionally and respectfully with knowledge about the student's strengths, weaknesses and needs. Various forms of assessment results were presented supporting the team's recommendations. The parents left the meeting confident that the team had developed the best plan possible to meet their child's educational needs. Great meeting!

Must an LEA Measure Postsecondary Transition Goals Once a Student Has Graduated or Aged Out?

According to Questions and Answers on Individualized Education Programs (IEPs), Evaluations, ad Reevaluations, 47 IDELR 166 (January 1, 2007), the answer is "no". Under 34 CFR Section 300.101, a free and appropriate public education (FAPE) must me made available to all children residing in the state in mandatory age ranges. However, the obligation to make FAPE availble does not apply to children who have graduated from high school with a regular diploma (34 CFR Section 300.102(a)(3)) or to children who have exceeded the mandatory age range for provision of FAPE under State law (34 CFR Section 300. 102(a)(2)). When a child's eligibility for FAPE pursuant to Part B terminates under these circumstances, in accordance with 34 CFR Section 300.305(e)(3), the local educational agency (LEA) must provide a "summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals." However, this provision does not require the LEA to provide services to the child to meet these goals.

If an IEP Chooses to Address Transition Before Age 16 (South Carolina begins at age 13) are the Same Standards Required?

According to Questions and Answers on Individualized Education Programs (IEPs), Evaluations, ad Reevaluations, 47 IDELR 166 (January 1, 2007), the answer is "yes". The regulations provide, at 34 CFR Section 300.320(b), that beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the IEP Team (or State), and updated annually, thereafter, the IEP must include-- 1) Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and 2) The transition services (including courses of study) needed to assist the child in reaching those goals. If the IEP Team for a particular child with a disability determines that it is appropriate to address the requirements of 34 CFR Section 300.320(b) for a child who is younger than age 16, then the IEP for that child must meet the requirements of 34 CFR Section 300.320(b).

Ringwood Board of Education v. K.H.J., 49 IDELR 63, 258 Fed. Appx. 399 (3rd Circuit, 2008)

In her presentation at the 19th Annual CASE (Counsel for Administrators in Special Education), Julie Weatherly mentioned a situation whereby a parent contended that the special education services provided by the district did not convey meaningful educational benefit. Her summary follows...
Where it is undisputed that the student has 'above average' intelligence, an Administrative Law Judge (ALJ) made a factual finding that the student had the 'potential of performing at least in the average grade level in reading', this hardly qualifies as 'maximizing' the child's potential. When students display considerable intellectural potential, IDEA requires a great deal more than negligible benefit. Because the student made only 'negligible progress' in the school district's program and was still one to two years behind grade level, the ALJ properly concluded that the Board had failed to provide FAPE.

Should Access to the Community be Included in the IEP as Independent Living Skills?

For some students with disabilities, the IEP team may determine appropropriate measurable postsecondary goals designed to improve independent living skills are necessary. If so, the team must also determine the type of transition services required to help the student achieve those goals. Transition services are "a coordinated set of activities for a child with a disability" that are intended "...to facilitate movement from school to post-school activities" and can include "independent living, or community participation" (34 CFR Section 300.43). If the results of an assessment of a student's independent living skills leads an IEP team to determine that access to the community is necessary for the student to receive a free and appropriate education, the team must design transition services to be included in the IEP that will help the student achieve those goals.